STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE,

Petitioner,

vs.

GEORGE JESUS GONZALEZ,

Respondent.

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) Case No. 00-3778PL

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SECOND RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on August 23, 2002, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Anoush Arakalian Brangaccio, Esquire

Department of Insurance Division of Legal Services

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Ignacio Siberio, Esquire

525 Northwest 27th Avenue, Suite 100 Miami, Florida 33125

STATEMENT OF THE ISSUES

In this disciplinary proceeding, the issues relate to whether one or more grounds exist for suspending, or imposing other discipline against, Respondent's license, where Petitioner charges that Respondent engaged in fraudulent or dishonest

practices in the conduct of business as a licensed health insurance agent.

PRELIMINARY STATEMENT

This case is back before the Division of Administrative Hearings (“DOAH”) on remand from the Third District Court of Appeal. The procedural history of the case leading up to the first final hearing, which the undersigned held on March 28, 2001, is set forth in the Recommended Order that the undersigned issued on July 10, 2001 (“First Recommended Order”).1 In the First Recommended Order, the undersigned found and concluded that Respondent George Jesus Gonzalez (“Gonzalez”) had committed disciplinable offenses and, accordingly, recommended that Petitioner Department of Insurance (“Department”) suspend Gonzalez’s health insurance agent license for a period of one year.

On August 31, 2001, the Department entered a Final Order adopting in full the undersigned’s findings of fact, conclusions of law, and recommended penalty, all as set forth in the First Recommended Order. Gonzalez appealed, and the appellate court reversed the Final Order, holding, first, that the admission of Petitioner’s Exhibit No. 9——which the Department had not timely disclosed——had unfairly prejudiced Gonzalez; and, second, that when Gonzalez’s counsel had tried to cross-examine the Department’s witnesses, the undersigned had “add[ed] insult to

injury” by sustaining objections to the relevance of some questions (not otherwise specified) about whether Exhibit No. 9 related to a purported 1998 transaction. See Gonzalez v.

Department of Insurance, 814 So. 2d 1226, 1226-27 (Fla. 3d DCA 2002).

In remanding the case for further proceedings, the Third DCA gave the following instructions:

If the same administrative law judge is available, the administrative law judge shall either reopen the proceedings with respect to the issues outlined earlier in this opinion, or if the administrative law judge deems it more efficient, conduct a new hearing. If the original administrative law judge is no longer available, then the appellant is entitled to a new hearing.

Id. at 1227.

On May 21, 2002, upon receipt of the Third DCA’s mandate, the undersigned, being available, entered an Order Reopening Proceedings which ordered, among other things, that:

DOAH Case No. 00-3778PL is reopened with respect to the issues outlined in the court’s opinion. The undersigned does not presently deem it more efficient to conduct a new hearing. Either or both parties may, however, be heard on any issue concerning the scope of the final hearing upon motion.

Neither party requested to be heard on any issue concerning the scope of the final hearing.

In the Notice of Hearing issued on June 5, 2002, the undersigned stated again that the issues would be as outlined in the Third DCA’s opinion. Neither party objected to this statement of the issues.

At the outset of the second final hearing, which began as scheduled, with both parties present, on August 23, 2002, the undersigned stated:

As I read the Third District’s opinion[,] the issues that the Court outlined can be summarized as follows: Mr. Gonzalez shall have the opportunity in this hearing to produce any evidence that demonstrates the existence of a January 1998 application for Mrs. Simpson or that otherwise corroborates his claim that the handwritten statement, known as Exhibit Number 9, related to that alleged January 1998 transaction. Mr.

Gonzalez shall also have the opportunity to fully examine and cross-examine any witnesses in attendance concerning whether Exhibit Number 9 related to that 1998 transaction.

These are the issues upon which the parties, in my view, should focus their [attention] today. While I plan to liberally construe the scope of relevance as it relates to these issues[,] I strongly urge the parties to refrain as much as reasonably possible from offering testimony [and] evidence identical to that which is already in the record from the first hearing. Given that I have chosen, consistent with the Third DCA’s mandate, not to conduct an entirely new hearing, but to reopen these proceedings with regard to the issues that the Appellate Court identified, I would prefer that the parties concentrate on presenting new and supplemental evidence rather than going over the ground that we have already covered. I

want to assure the parties [on] both sides that I plan to and intend to review and reconsider all of the previous evidence in the record and in light of all the evidence that is presented today when I make my findings of fact and recommendations to the Department following today’s hearing.

Transcript at 7-8.

The Department called one witness, Sergio Rumie, and offered two additional exhibits (numbered 11 and 12), which were received in evidence. Gonzalez presented one witness, too: Patrick O’Connell. In addition, Gonzalez’s exhibits numbered 8 through 11 were admitted into evidence.2 Finally, the entire evidentiary record of the first hearing was returned to the undersigned for reconsideration in this proceeding.

The final hearing transcript was filed with DOAH on September 30, 2002. The parties timely submitted proposed

recommended orders.

FINDINGS OF FACT

Having examined the entire record; weighed, interpreted, and judged the credibility of the evidence; drawn (or refused to draw) permissible factual inferences; resolved conflicting accounts of what occurred; and applied the applicable law to the facts, the undersigned is convinced that the findings of fact set forth in the First Recommended Order are correct.3 Therefore, those findings are hereby adopted and incorporated by

this reference, with one exception. Paragraph 19 is amended as follows:

19. Gonzalez claimed also to have taken an application from Ms. Simpson in January 1998 that was rejected. and then, pursuant to routine office procedures, discarded. Gonzalez’s testimony that the January 1998 application was discarded in the ordinary course of business was disputed by Mr. Rumie, whose testimony that rejected applications were in fact maintained on file is accepted as more credible. In any event, In contrast to the other two, however, no application of Ms. Simpson’s from January 1998 was produced at hearing.——indeed, no persuasive corroborating evidence of any kind was adduced in support of this supposed January 1998 application.

CONCLUSIONS OF LAW

The conclusions of law set forth in the First Recommended Order are hereby adopted and incorporated by this reference.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order suspending Gonzalez's health insurance agent license for a period of one year.

DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2002.

ENDNOTES

1/ The First Recommended Order is available on Westlaw under the citation 2001 WL 788503.

2/ Respondent’s Exhibit No. 8 is a composite exhibit comprised of documents produced by Gonzalez’s former employer, Foundation Health. After the hearing, Gonzalez moved that several documents be removed from Respondent’s Exhibit No. 8, which was done without objection.

3/ Any additional findings that might be made based on the evidence adduced at the second final hearing would be superfluous.

COPIES FURNISHED:

Anoush Arakalian Brangaccio, Esquire Department of Insurance

Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Ignacio Siberio, Esquire

525 Northwest 27th Avenue, Suite 100 Miami, Florida 33125

Honorable Tom Gallagher

State Treasurer and Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-003778PL

Orders for Case No: 00-003778PL