FILED 5 THE Xgl 2! THE Le OF FLORIDA WAY 18 2000 DEPAR MEN SRINSURANCE M BILL NELSON ADMIN| | S{RATIVE TREASUEn ants HEAR \ INSURANCE COMMIBDIONER Docketed by: IN THE MATTER OF: ; Case No. 34730-00-AG MADELYN M. MITJANS a 00-2549 ADMINISTRATIVE COMPLAINT “TO: MADELYNM. MITIANS. c/o Sky E. Smith, Esquire 2400 South Dixie Hwy, Suite 100 Miami FL 33133 You, MADELYN M. MITJANS, 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 in this state, as a result of which it is hereby alleged that: _ GENERAL ALLEGATIONS - 1. “You, MADE YN M. MITJANS, are “currently, licensed i in n this state as a life & - variable a annuity @- 18), ‘life, ‘health, and variable : annuity @ 15), life & health G18), and a 1 health (2-40) agent. 7 * : At all times _ Felevant to the dates ¢ and “occurrences referred to herein, you, TIAN S, were licensed i in this state as an insurance agent. MADELYN M. cI apter 626, Florida Statutes, the . Florida Department of Insurance Brower ot ee didioeemacianed ("DEPARTMENT") has jurisdiction over your insurance licenses and appointments. A, At all times relevant to the dates and occurrences s referred to herein, you, MADELYN M. “MITIANS, engaged ir 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 imsurers 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 5 refered to herein, and pursuant to Section 626. 561(1), Florida Statutes, all premiums, return premiums, or other + funds belonging to others received by you, MADELYN M. MITJANS, in the conduct of your licensed activities ‘constituted trust funds received i in a fiduciary capacity, and you, “MADELYN M. MITIANS, were and remain n obligated to account for and pay such, funds to the i insurer, HMO, insured, or other persons lawfully entitled thereto in the applicable regular course of business. a realeged a and fully incorporated 1 in this Count as though fully set forth herein. Avila of | to purchase health ‘coverage. ~ You, ‘MADELYN M. /MITIANS, represented to Ms. Avila that she could obtain health coverage with Humana I Health Insurance above are hereby ~ On or about October 1 1998, you, ‘MADELYN M. [ MITIANS, solicited ‘Margit ee re) Company of Florida, Inc. (“Humana”), an insurer licensed in Florida, by enrolling in a group health plan. You, MADELYN M. MITJANS, knew or should have known that Ms. Avila was ineligible for such health coverage because Ms. Avila did not work for the employer to which the health plan was issued. 9. On or about October 1, 1998, you, |, MADELYN M. MITIANS, advised Margarita Avila that she had to pay a $100.00 membership fee to obtain health coverage. You, MADELYN M. M. MITIANS, collected a check from Margarita Avila payable to Interamerican United Consumer 4 Association (TUCA") for $276.00. Said amount included the first month’s premium of $176.00 and an unlawful membership fee of $100. 00 for the group enrollment. The effective date of Ms. Avila's medical I coverage v was October 1, 1998. 10. Margarita Avila v was 5 then ‘enrolled i ina group health ban issued by ‘Humana to” IUCA, when you, MADELYN M. MITIJANS, knew that Margarita Avila did not work for TUCA. Margarita avila paid monthly premiums of $176. 00 from October 1998 to March 1999. Ms. Avila’s health coverage with Humana was terminated “effective February 28, 1999 ‘for. “nonpayment of premiums. 11. You, MADELYN M. MITJANS, have participated i in and 4 assisted with the ¢ illegal “also “giscreerer ‘and/or assisted ‘with ‘thie misrepresentation of inaterial information to Margarita Avila and Humana i in 1 order for Margarita Avila to unlawfully obtain health coverage. D You, MADELYN M. MITIANS, “also participated i in and assisted with a scheme with other insurance agents and unlicensed individuals in which funds belonging to insureds rere eeremreere: a ‘teceived ‘by the li we) W were misappropriated and/or illegally converted. Margarita Avila paid monthly premiums to TUCA i in the amount ‘of $176. 00 from October 1998 ‘to March 1999. One or more of Ms. Avila’s premium payments were not forwarded to TUCA, as evidenced by the fact that her medical coverage was cancelled effective February 28, 1999 for nonpayment of premiums. Margarita Avila ‘requested a refund of the premium payment for the month she lacked coverage with Humana. “Margarita Avila has not received a refund of the monies paid. 13. You, MADELYN M. MITIANS, participated in and assisted in the misappropriation and/or conversion of funds belonging to Margarita Avila, because you collected an unlawful membership fee of $100.00 in excess of the premium for the procurement of medical coverage. 14. As aresult of your, MADELYN M. MITIANS', misrepresentations and activities, Margarita ‘Avila lacked medical coverage and incurred medical bills that have not been paid. IT IS THEREFORE CHARGED that you, MADELYN M. MITIANS, 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: (a) All Premiums, F return ‘Premiums, or other funds belonging to insurers or others received by an agent, “solicitor, or vr adjuster in transactions under his license shall be trust funds so see ve ina a fiduciary capacity. ~The’ licensee j in the applicable regular course of ‘bus ess shall account for and pay the same to the insurer, insured, ‘or “other person ‘entitled — the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]; a WwW . wd (c) Willful mistepresentation 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 626.61 1(5), Florida Statutes]; (d) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.61 17), Florida Statutes]; ‘(e) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.61 1(9), F lorida 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 license or appointment. [Section 626.61 1(10), Florida Statutes]; (g) . Wiilful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code. [Section 626.611(13), Florida Statutes]; . (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]; qd) 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]; ogee: tw . 7 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. on102), Florida Statutes}; (k) No person on shal. engage in this state ein any t trade practice which i is defined in this pat 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 practic involving the business of insurance. [Section 626. 9s21(0) Florida States - () 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 ; represeiitation on on, or relative ‘to, an sppliatono or negotiation for an insurance policy for the purpose of obtaining a 1 fee, ¢ commission, money, or other benefit from any insurer, agent, broker, . or individual. [Section 626 9541(1}(), Flo Florida Statutes]; ) in) Knowingly collecting any sum | as 2 a . premium of or charge fori insurance, which is not then provided: ¢ or is not in | due course to be Provided, subject to acceptance of the risk by the soroeo es + insurer, “by an-insurance Golicy ‘igsued by an insurer as s permitted by this code. [Section 626.9541(1)(0)(1), F lorida Statutes]; a (0) - Knowingly collecting asa premium or charge for insurance any sum in excess of or less than ‘the ‘um or charge applica le to such insurance, i applicable classifications and rates 2 as 5 filed with and approved byt the department, and as specified n accordance | with the : ll 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 i in in excess of 0 or less than those specified in the policy and as fixed by the i 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 s which is defined in this part as, or determined pursuant to ss. 641.3905 to be, an unfair method of competition or an uni or deceptive = act or practice involving the business of health maintenance organizations. {Section 641.3 901, 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), (d) and (k), Florida Statutes]; @) 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, characteris, uses, standard, quantity, quality, cost, rate, scope, source, or geographic origin or location of any goods or - services available from or provided by, directly or indirectly, any health maintenance organization. [Section 641 |3903(1)(e), Florida Statutes ©) Knowingly making false or fraudulent s statements or 3 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 in dual. | [Section 6 641. 3903 0348), Florida Statutes) wor w _ ) (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)(), Florida Statutes]; (v) The department may issue and serve a complaint stating charges upon any licensee or upon any affiliated party, whenever the department has reasonable cause to believe that the person or individual named therein is engaging in or has engaged 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, or constitutes business operations that are a detriment to policyholders, stockholders, investors, creditors, or the public; (2) a violation of provisions of Sec poo : f U : S) 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 FAC), 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 ot Insurance. If served by “US. Mail, the Petition or Election should be addressed to the Florida Department of Insurance at 612 Le Larson Building, ‘Tallahassee, Florida 32399- 0333. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered 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 (21) 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 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 in 1 opposition to the action taken by this agency or a written Statement challenging the g grounds seokiedatiroen einstein upon which the agency y has relied. While a hearing is normally n not required i in the absence ofa 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. al wri en evidence RITTER or ceer teehee la aL st dh he pcre oe nent ; t . 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 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 of witnesses are located elsewhere the Department 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 You are hereby notified that mediation under Section 120.573, Florida Statutes, is not available. . oo . Failure to follow the Procedure outlined with regard to your response to this notice may result i in n the request being denied. All prior correspondence in + this n matter" shail be considered" ~~~ ~~ .. freeform agency ‘action, and no such correspondence shall aperate as a valid request for an } oeeeding, Any Tequest for administrative proceeding received Prior to the date of this 1 notice 2 shall be ‘deemed ‘abandoned “unless “timely renewed in “compliance with the guidelines as set out above. 10 Ve y DATED and SIGNED this_[@Hwday of May, 2000. LL NELSON Treasurer and Insurance Commissioner CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE. COMPLAINT has been furnished by certified mail on this ee day of May, 2000 to the following addressees: MADELYN M. MITJANS c/o Sky E. Smith, Esquire 2400 South Dixie Hwy, Suite 100 Miami FL 33133 Qute Lode bo Mechele R. McBride, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee FL 32399-0333 (850) 413-4114 il a a qe peweepreee ge sone ie 2 er rneerre me gy e pp Ree oe oer

Docket for Case No: 00-002549