AUG. 22 2000 THE TREASURER OF THE STATE OF FLORIDA DEPARTMENT OF INSURANCE INSURANCE COMMasionen SL: MRISUReneenneeee BILL NELSON ev IN THE MATTER OF: CARLOS VICENTE BENITEZ Case No. 31794-99-aAG 00-421 PO / ADMINISTRATIVE COMPLAINT Q Oo TO: CARLOS VICENTE BENITEZ 2 “Fy 3744 SW 133" Place ao Miami, Florida 33175-6939 ~E ~ TT CARLOS VICENTE BENITEZ = wd Smith Crown & Associates Insurance _ 11401 SW 40 Street, Suite 309 tm Miami, Florida 33165-3339 CARLOS VICENTE BENITEZ is hereby notified that the Insurance Commissioner of the State of Florida has caused to be made an investigation of his activities while licensed as an insurance agent in this state, as a result of which it is alleged: ENE ATIONS 1. Pursuant to Chapter 626, Florida Statutes, CARLOS VICENTE BENITEZ currently is licensed in this state as a surplus lines (1-20) and general lines (2-20) insurance agent, having license number A018950. 2. At all times pertinent to the dates and occurrences referred to herein, CARLOS VICENTE BENITEZ was licensed in this state as an insurance agent. ) 3. At all times pertinent to the dates and occurrences referred to herein, CARLOS VICENTE BENITEZ was associated with and acted as agent for a company known as Smith Crown Underwriters, Inc., a/k/a Smith Crown Insurance, a/k/a Smith Crown and Associates Insurance Agency Inc. (hereinafter “Smith Crown”), a Florida incorporated insurance agency with its principal business address at 11401 SE 40™ Street, Miami, Florida. 4. At all times pertinent to the dates and occurrences referred to herein, CARLOS VICENTE BENITEZ was president and resident agent for Smith Crown. 5. As the corporate president for Smith Crown, CARLOS VICENTE BENITEZ, knew or should have known of the activities of salaried employees under his direct supervision and control and he was responsible and accountable for all of the activities of. the staff at the agency location described above for the times and occurrences as hereafter presented. 6. References to CARLOS VICENTE BENITEZ, include persons acting under his direct supervision and control at the agency described herein. to 7. CARLOS VICENTE BENITEZ, is listed as a signor on the Smith Crown account numbered 40051149800 at Transatlantic Bank of Miami, Florida (“Transatlantic Bank”). 8. CARLOS VICENTE BENETEZ, has been the subject of a prior administrative action. In July, 1998, he was fined $2,750.00 for transacting insurance prior to obtaining a license (case number 21742-97-A). 9. At all times pertinent to the dates and occurrences referred to herein, CARLOS VICENTE BENITEZ wrote, bound and issued certificates of insurance for numerous consumers showing Truck Insurance Exchange and Union Insurance as the carriers. CARLOS VICENTE BENITEZ was not appointed to solicit or otherwise transact as agent for Truck Insurance Exchange and Union Insurance. 10. At all times pertinent to the dates and occurrences referred to herein, CARLOS VICENTE BENITEZ, dealt with London insurance broker Michael Lee of TL Dallas (London) Limited, 6 Alie Street, London, England El 8DD, which company name later changed to Paul Group International (Insurance Brokers) Limited showing the same address as TL Dallas. These companies will be referred to hereafter as “Dallas” or “Paul.” 11. CARLOS VICENTE BENITEZ, had an “Application for Appointment as Correspondent” dated June 5, 1997. Correspondence between Carlos Vicente Benitez, Dallas and Paul, indicates that 3 Smith Crown was given authority to submit insurance business (either as a retail or wholesale broker or Managing General Agent “MGA") whereupon Dallas or Paul would place the business with a number of different carriers, confirming these at the time of binding. 12. CARLOS VICENTE BENITEZ, accepted applications and down payments from consumers and then financed these policies, writing drafts payable to the Smith Crown trust account. Confirmation of binding was faxed from LH International Ltd., Chelmsford, Essex CM3 2SL, indicating coverage was bound with the Truck Insurance Exchange, a reciprocal or international exchange insurance carrier division of Farmers Insurance (hereafter “Truck Insurance”) . COUNT I 13. The above general allegations numbered one through 12 are hereby realleged and fully incorporated herein by reference. 14. On or about January 19, 1998, Delio A. Trasobares, the owner of Metro Express, purchased a commercial truck policy from, CARLOS VICENTE BENITEZ. The policy was with General Security Insurance Co. and was financed by. Premium Partners ‘Fund Inc. 15. The policy was cancelled and the refund of over $5,000 was sent to, CARLOS VICENTE BENITEZ. On approximately January 20, 1999, Mr. Trasobares had Smith Crown rewrite the insurance policy, directing that the refund be used as the down payment on the new policy. Mr. Trasobares was given no documents as proof of insurance, other than a temporary insurance card. He was not provided a copy of his insurance application. 16. Mr. Trasobares made regular monthly installment payments in the amount of $1,036.04. In late April, 1999, Mr. Trasobares received a policy from National Casualty Insurance showing his agent to be “Yanoff South Inc.” Mr. Trasobares also received a cancellation notice from National Casualty with an effective date of March 29, 1999. Mr. Trasobares called “Marlene” at Smith Crown and was told “not to worry” about the cancellation notice. Later, Mr. Trasobares discovered he had no insurance when he was so notified by a Florida Highway Patrol officer. 17. CARLOS VICENTE BENITEZ deliberately failed to return the premium payment refund to Delio A. Trasobares or otherwise account for the monies that were to be applied toward the purchase of automobile insurance for Mr. Trasobares. IT IS THEREFORE CHARGED that CARLOS VICENTE BENITEZ has violated or is accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance which constitute grounds for the suspension or revocation of his licenses and appointments as an insurance agent: (a) All premiums, return premiums, or other funds belonging to insurers or others received by an agent, customer representative, solicitor, or adjuster in transactions under his or her license are trust funds received by the licensee in a fiduciary capacity. An agent shall keep the funds belonging to each insurer for which he or she is not appointed, other than a. surplus lines insurer, ina separate account so as to allow the department to properly audit such funds. 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) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (c) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes] ; (c) Willful 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]; (d) The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, solicitor, adjuster, customer representative, service representative, managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee there has been 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 626.611(10), Florida Statutes]. COUNT II 18. The above general allegations numbered one through 12 are hereby realleged and fully incorporated herein by reference. 19. A premium finance agreement dated February 5, 1999 shows Smith Crown as the producing agent, Metro Express as the insured, and “Truck Insurance Exchange” as the carrier. The signature on the premium finance agreement, which purports to be that of Delio Trasobares, is not his signature. 20. The check written by the premium finance company made payable for the amount of the unpaid premium ($8,925.12) shown on the premium finance agreement indicates that Smith Crown is the agent for “Truck Insurance Exchange.” 21. CARLOS VICENTE BENITEZ knew or should have known that he was acting as an agent by soliciting and issuing certificates of insurance for an insurance company he was not authorized and appointed to write insurance business with. IT IS THEREFORE CHARGED that CARLOS VICENTE BENITEZ has violated or is accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Insurance which constitute grounds for the suspension or revocation of his licenses and appointments as an insurance agent: (a) No person shall, from offices or by personnel or facilities located in this state, or in any other state or country, directly or indirectly act as agent for, or otherwise represent or aid on behalf of another, any insurer not then authorized to transact such insurance in this state in: (1) The solicitation, negotiation, procurement, or effectuation of insurance or annuity contracts, or renewals thereof; (2) The dissemination of information as to coverage or (3) The forwarding of applications; (4) The delivery of policies or contracts; (5) The inspection of risks; (6) The fixing of rates; (7) The investigation or adjustment of claims or losses; or (8) The collection or forwarding of premiums; or in any other manner represent or assist such an insurer in the transaction of insurance with respect to subjects of insurance resident, located, or to be performed in this state. If the property or risk is located in any other state, then, subject to the provisions of subsection (4), insurance may only be written with or placed in an insurer authorized to do such business in such state or in an insurer with which a licensed insurance broker of such state may lawfully place such insurance; 'T£ an unauthorized insurer fails to pay in full or in part any claim or loss within the provisions of any insurance contract which is entered into in violation of this section, any person who knew or reasonably should have known that such contract was entered into in violation of this section and who solicited, negotiated, took application for, or effectuated such insurance contract is liable to the insured for the full amount of the claim or loss not paid; No insurance contract entered into in violation of this section shall be deemed to have been rendered invalid thereby [Section 626.901(1) and (2), Florida Statutes]; (b) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes] ; (c) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes] ; (c) Willful 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]. WHEREFORE, CARLOS VICENTE BENITEZ is hereby notified that the Treasurer and Insurance Commissioner intends to enter an Order suspending or revoking his licenses and appointments as an insurance agent or to impose such penalties as may be provided under the provisions of Sections 626.611, 626.621, 626.681, 626.691, and 626.9521, Florida Statutes, and under the other referenced sections of the Florida Statutes as set out in this Administrative Complaint. CARLOS VICENTE BENITEZ is further notified that any order entered in this case revoking or suspending any license or eligibility for licensure held by him shall also apply to all other licenses and eligibility held by him under the Florida Insurance Code. NOTICE OF RIGHTS Pursuant to Sections 120.569 and 120.57, Florida Statutes and Rule 28-106, Florida Administrative Code (F.A.C.), you have the right to request 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 Building, Tallahassee, Florida 32399- 0333. If Express Mail or hand delivery is utilized, the Pétition 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 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 in 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 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; (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. 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 request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. DATED and SIGNED this _22nd__ day of August, 2000. LL. NELSON Treasurer and Insurance 13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT has been furnished to: CARLOS VICENTE BENITEZ, 3744 SW 133” Place, Miami, Florida 33175-6939 and to CARLOS VICENTE BENITEZ, Smith Crown & Associates Insurance, 11401 SW 40 Street, Suite 309, Miami, Florida 33165-3339 by Certified Mail this 22nd day of | August , 2000. David J. Busc Senior Attorney Division of Legal Services 612 Larson Building Tallahassee, FL 32399-0333 (850) 413-4146 14

Docket for Case No: 00-004021PL