e ; a * 3 / FILED “ca J -8 Pac I IVISION GF gM INIS Ue alana OF THE STATE OF FLORIDA HAY 18 2009 ” HEARI DEPARTMENT OF INSURANCE _ ouneA AND BILL NELSON b cae e COMSONER IN THE MATTER OF: : : A _ we : Case No. 34734-00-AG MARTHA AGUIRRE | o0-AY09 MINISTRATIVE COMPLAINT AD . TO: MARTHA AGUIRRE 13171 SW 10th Lane Miami FL 33184 You, MARTHA AGUIRRE, are hereby notified that pursuant to Chapter 626, Florida Statutes, the Insurance Commissioner of the State of Florida has caused to be made an investigation of your activities while licensed as an insurance agent i in this state, as a result of which it is hereby alleged that: GENERAL ALLEGATIONS 1. You, MARTHA AGUIRRE, are currently licensed in this state as a life (2-16), life & health (2- ~18), and a health (2-40) agent. ee a “At all times relevant to » the dates ‘and occurrences referred to herein, you, MARTHA AGUIRRE, were licensed in this state as an insurance agent. 3. Pus to Chapter 626, Florida Statutes, the Florida Department of Insurance ("DEPARTMENT") has jurisdiction over your insurance licenses and appointments. 7 “, . < wy 4. At all times relevant to the dates and occurrences referred to herein, you, - MARTHA AGUIRRE, engaged in insurance transactions and conducted business through Durey Insurance Group, Inc., also known as Durey Insurance and Accounting (hereinafter “Durey Insurance”), located at 7575 West Flagler Street, Suite 201, Miami, Florida. 5. Pursuant to Section 641.386, Florida Statutes, all qualifications, disciplinary provisions, licensing and appointment procedures, fees, and related matters contained in the Florida Insurance Code which apply to the licensing and appointment of health insurance agents by insurers shall apply to persons licensed or appointed by health maintenance organizations (“HMOs") as their agents. 6. At all times relevant to the dates and occurrences referred to herein, and pursuant to Section 626.561(1), Florida Statutes, all premiums, return premiums, or other funds belonging to others received by you, MARTHA AGUIRRE, in the conduct of your licensed activities constituted trust funds received in a fiduciary capacity, and you, MARTHA AGUIRRE, were and remain obligated to account for and pay such funds to the insurer, HMO, insured, or other persons lawfully entitled thereto in the applicable regular course of business. COUNT I 7. All General Allegations set forth in paragraphs | through 6 above are hereby " realleged and fully incorporated in this Count as though fully set forth herein. . 8. Roberto Rodriguez of Hialeah, Florida contacted you, MARTHA AGUIRRE, ement of] alth insurance for himself and hs wife. Onc or about November ib RS ees ou. MARTHA AGUIRRE came to Mr. Rodriguez’ s home and misrepresented to Roberto Rodriguez that he could be enrolled in a group medical plan with Humana Health ; coverage for M h 19 (, ’ Fa . { vy, ~) Insurance Company of Florida, Inc. (referred to as “Humana”) because he could not obtain individual coverage with Humana. You, MARTHA AGUIRRE, knew or should have known that Roberto Rodriguez was ineligible for such group coverage. You, MARTHA AGUIRRE, . completed the Humana enrollment form for Roberto Rodriguez. 9. On or about November 16, 1998, you, MARTHA AGUIRRE, advised Roberto Rodriguez that he had to pay a $99.00 enrollment fee in order to obtain medical coverage. As instructed, Roberto Rodriguez gave you, MARTHA AGUIRRE. a check in the amount of $451.00. Said amount included the first month’s premium of $352.00 and a $99.00 charge for an unlawful enrollment fee. You, MARTHA AGUIRRE, filled out the name of the company that was to receive the check as “IUCASS”, also known as Interamerican University, Inc. or the Interamerican United Consumers Association (hereinafter "TUCA"). 10. Roberto Rodriguez received an identification card from Humana that identified : his employer as TUCA and the effective date of coverage as December 1, 1998. You, MARTHA AGUIRRE, knew that Roberto Rodriguez did x not work for IUCA. 11. You, MARTHA AGUIRRE, later informed Roberto Rodriguez that his coverage was being transferred to Well Care HMO, Inc. CWell Care”). an HMO licensed i in Florida. You, ‘MARTHA AGUIRRE, came to Roberto - Rodriguez's home and “completed a Well Care “enrollment form for coverage effective April 1, 1999. You, MARTHA AGUIRRE, did not ~~ inform Roberto Rodriguez that, due to the transfer from Humana to Well Care, he had no cause th ‘umana coverage terminated on February 28, 1999. a 12. _ You, MARTHA AGUIRRE, _paticipated in ‘and assisted with the illegal enrollment of Roberto Rodrigue in a Humana group health plan issued to TUCA. You, oon lle A ca es a Be oe eta Ae AIMS te ca ‘asa result of your a actions. . : ‘ { ed Ww MARTHA AGUIRRE, knew Roberto Rodriguez did not work for TUCA. You, MARTHA AGUIRRE, also misrepresented and/or assisted with the misrepresentation of material information to Roberto Rodriguez and Humana in order for Roberto Rodriguez to unlawfully obtain the health coverage. 13. You, MARTHA AGUIRRE, also participated in and assisted with a scheme with other insurance agents and unlicensed individuals in which funds belonging to insureds were misappropriated and/or illegally converted. As instructed by you, MARTHA AGUIRRE, Roberto Rodriguez paid monthly premiums of $352.00 from November 1998 (excluding December 1998) to April 1999 to IUCA for his coverage with Humana, and from May 1999 to July 1999 to Dardick Agency for his coverage with Well Care. Roberto Rodriguez was unaware that he paid a premium for March 1999 for which he had no coverage. Roberto Rodriguez never "‘teceived a refund for this premium payment. Additionally, you, MARTHA AGUIRRE, collected an unlawful enrollment fee of $99.00 in excess of the premium for the procurement of medical coverage. 14, As a result of your, MARTHA AGUIRRE’s, misrepresentations and activities, Roberto Rodriguez and his wife lacked health h coverage and incurred medical bills which have not been Paid. | Roberto Rodriguez, I Humana and/or NHP have therefore suffered financial harm IT IS THEREFORE CHARGED that you, MARTHA AGUIRRE, have violated or are accountable under the following provisions of the Florida Insurance Code, which constitutes grounds for the suspension or revocation of your licenses as an insurance agent in this state: fa vo S) (a) All premiums, return premiums, or other funds belonging to insurers or others received by an agent, solicitor, or adjuster in transactions under his license shall be trust funds so received by the licensee in a fiduciary capacity. The licensee in the applicable regular course of business shall account for and pay the same to the insurer, insured, or other person entitled thereto. [Section 626.561(1), Florida Statutes]; (b) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]; ° (c) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising. [Section 626.611(5), Florida Statutes]; (d) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (e) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; ( Misappropriation, conversion, or unlawful withholding of moneys belonging to . insurers or insureds or beneficiaries or to others and received in conduct of business under the [Section 626.611(10), Florida Statutes]: - ‘the department or willful violation of any provision of this code. [Section 626.611(13), Florida Willful failure to comply with, or willful violation of, any proper order or rule of y v (h) ‘Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment. [Section 626.621(2), Florida Statutes]; q@) In the conduct of business under the license or appointment, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of this chapter, or having otherwise shown himself or herself to be a source of injury or loss to the public. [Section 626.621(6), Florida Statutes]; ° q) Knowingly aiding, assisting, procuring, advising, or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department. [Section 626.621(12), Florida Statutes]; (k) __No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to ss. 626.951 or ss. 626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance. [Section 626,9521(1), Florida Statutes]; a . Los qa) Knowingly making, issuing, circulating, or causing to be made, issued or circulated any estimate, illustration, circular statement, sales presentation, omission, or comparison which misrepresents the benefits, advantages, conditions or terms of any insurance _ policy. [Section 626.9541(1)(a)(1), Florida Statutes]; (m) : Knowingly making a false or fraudulent written or oral statement or representation on, or relative to, an application or negotiation for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual. [Section 626.9541(1)(K), Florida Statutes]; . ‘ . i ws . wd (n) Knowingly collecting any sum as a premium or charge for insurance, which is not then provided, or is not in due course to be provided, subject to acceptance of the risk by the insurer, by an insurance policy issued by an insurer as permitted by this code. [Section 626.9541(1)(0)(1), Florida Statutes]; (0) Knowingly collecting as a premium or charge for insurance any sum in excess of or less than the premium or charge applicable to such insurance, in accordance with the applicable classifications and rates as filed with and approved by the department, and as specified in the policy; or, in cases- when classifications, premiums, or rates are not required by this code to be so filed and approved, premiums and charges in excess of or less than those specified in the policy and as fixed by the insurer. [Section 626.9541(1)(0)(2), Florida Statutes]; (p) __No person, entity, or health maintenance organization shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to ss. 641.3905 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of health maintenance organizations. [Section 641.3901, Florida Statutes]; (q) Knowingly making, issuing or circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison which misrepresents the benefits, advantages, conditions, or terms of any health maintenance contract; misrepresents the affiliation, connection, or association of any goods, services, or business establishment; [Section 641.3903(1)(a), (4) and (k), Florida Statutes]; (1) Knowingly making, issuing or circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison which misrepresents the benefits, nature, characteristics, uses, standard, quantity,- oo, / W/ ; ww quality, cost, rate, scope, source, or geographic origin or location of any goods or services available from or provided by, diiectly or indirectly, any health maintenance organization. [Section 641.3903(1)(e), Florida Statutes]; (s) , Knowingly making false or fraudulent statements or representations on, or relative to, an application for a health maintenance contract for the purpose of obtaining a fee, commission, money, or other benefits from any health maintenance organization; agent; or representative, broker or individual. [Section 641.3903(8), Florida Statutes]; ° (t) Knowingly collecting any sum as a premium or charge for health maintenance * coverage which is not then provided or is not in due course to be provided, subject to acceptance of the risk by the health maintenance organization, by a health maintenance contract issued by an health maintenance organization as permitted by this part. [Section 641.3903(10)(a), Florida Statutes]; (u) —— Knowingly collecting as a premium or charge for health maintenance coverage " any sum in excess of or less than the premium or charge applicable to health maintenance coverage, in accordance with the applicable classifications and rates as filed with the department, and as specified in the health maintenance contract. [Section 641.3903(10)(b), Florida Statutes]; (v) The department may issue and serve a complaint stating charges upon any i licensee or ‘upon any affiliated party, whenever the department has reasonable cause to believe - . that the p person or individual named therein i is engaging in or has engaged i in conduct that is: (1) an act that demonstrates a lack of fitness or trustworthiness to engage in the business of insurance, is hazardous to the insurance buying public, ot constitutes business operations that are ’ a detriment to policyholders, stockholders, investors, creditors, or the public; (2) a violation of i : F ) ) any provision of the Florida Insurance Code; (3) a violation of any rule of the department; (4) a violation of any order of the department; or (5) a breach of any written agreement with the department. [Section 624.310(3)(a), Florida Statutes]. WHEREFORE, you, MARTHA AGUIRRE, are hereby notified that the Treasurer and Insurance Commissioner intends to enter an Order revoking or suspending your licenses as an insurance agent in this state or to impose such lesser penalties as may be proper under the provisions of Sections 626.611, 626.621, 626.622, 626.681, 626.691, 626.9521, and 641.3901, Florida Statutes, under the Procedures and rules set forth in this Administrative Complaint. NOTICE OF RIGHTS _ Pursuant to Sections 120. 569 and 120. 57, Florida Statutes, and Rule Chapter 28-106, Florida Administrative Code (F.A.C.), you may elect a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. - Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance at 612 Larson n Building, Tallahassee, Florida 32399- 0333. Tf Express Mail or hand delivery i is utilized, the Petition or r Election should be delivered t to 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333. The Petition or Election must be received by, and filed in the Department within twenty-one Q)) days of the date of your receipt of this notice. YOUR FAILURE TO. RESPOND ‘TO. THIS” ADMINISTRATIVE COMPLAINT WITHIN TWENTY- “ONE (21) DAYS WILL CONSTITUTE A WAIVER OF ~ YOUR RIGHT TO REQUEST A PROCEEDING ON THE ~ cet eee WW 7) ’ MATTERS ALLEGED HEREIN AND AN ORDER OF REVOCATION WILL BE ENTERED AGAINST YOU. If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary, one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapter 28-106, F.A.C., and contain: a) A statement identifying with particularity the allegations of the Department which _ you dispute and the 1 nature of the dispute; | b) An explanation of what relief you are seeking and believe you are entitled to; and c) Any other information which you contend is material. These proceedings are held before a - State ‘Administrative Law Judge of the Division of - Administrative Hearings. Unless the majority f witnesses are © located d elsewhere the Department. ee oe nee | will request that the hearing be conducted in Tallahassee. If you request a hearing, you have the right to be represented by counsel or other qualified representative, to take testimony, to call and cross- -examine » witnesses, and to have subpoena and subpoena duces tecum issued on your behalf. 10 seen el a vu vw You are hereby notified that mediation under Section 120.573, Florida Statutes, is not available. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any Tequest for administrative Proceeding received prior to > the date of this notice shall be deomed abandoned “unless timely renewed | in compliance with the guidelines as set out above. DATED and SIGNED this Sthyday of May, 2000. ® at wha “ae yy G, ILL NELSON Treasurer and Insurance Commissioner popes eee cee ne SR RE EERE i v. ~e CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE . COMPLAINT has been furnished by certified mail on this (AML day of May, 2000 to the following addressees: Certified Article Number MARTHA AGUIRRE B79 O54 088 13171 SW 10th Lane Miami FL 33184 [aBEREEI : : Mechele R. McBride, =f Division of Legal Services © 612 Larson Building 200 East Gaines Street Tallahassee FL 32399-0333 (850) 413-4114 : RED 34734.00-AG Aguirre i . | aiso wish to receive the... i SENDER: Mechele R. McBride following service (fo! : Consult postma 4a. Article Number “hs "Wri Raciosaed to: - | Martha Aguirre P73 054. oa _ | 13171 SW 10th Lane wn wt : OO Mien ELS} | 4b. Service Type CERTIFIED ¢ : ~ 7. Date of Delivery \ x) La ead p a 8. Addressee’s Address (Only if requested, OPI dma ; C? >F = : we Ee, BSigneturg ike or Agen “7 : _ pee : PS Form 3811, September 1995. “412

Docket for Case No: 00-002409