ow FILED LED SEP 11 2000 COCET-6 pHa: sy THE TREASURER OF THE STATE; DEPARTMENT OF INSURANE BILL NELSON IN THE MATTER OF: CASENO. 35599-00-AG MARK MILLER ADMINISTRATIVE COMPLAINT TO: MARK MILLER 3591 Edington Way Palm Harbor, Florida 34685 MARK MILLER 2536 Countryside Blvd. Clearwater, Florida 34623 MARK MILLER P.O. Box 15059 Clearwater, Florida 33766 You, MARK MILLER, are hereby notified that pursuant to Chapters 624 and 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 alleged that: GENERAL ALLEGATIONS 1. You, MARK MILLER, are currently licensed in this state as a life and variable annuity contracts salesman, as a life, health and variable annuity contracts salesman, life insurance agent, health insurance agent and as a life and health insurance agent. 2. At all times relevant to the dates and occurrences alleged herein, you, MARK MILLER, were licensed in this state as an insurance agent. 3. Pursuant to Chapter 626, Florida Statutes, the Insurance Commissioner of the State of Florida and the Department of Insurance has jurisdiction over your insurance licenses and your eligibility for licensure and appointment. COUNTI 4. The above General Allegations numbered one (1) through three (3) are hereby realleged and fully incorporated herein by reference. 5. On or about May 5, 1998, you, MARK MILLER, visited the home of Arlayne Smith, age 69 of New Port Richey, Florida, for the purpose of soliciting the sale of insurance policies. 6. As of May 5, 1998, Arlayne Smith owned an American Life and Casualty (Conseco) annuity, policy number 0N914686, which was in full force and effect. 7. On or about May 5, 1998, you, MARK MILLER, after reviewing her annuities, represented to Arlayne Smith that she could receive a superior return than she was already receiving on her funds by utilizing dividend and interest payments from her American Life and Casualty annuity to purchasing an additional annuity being sold by you. 8. You, MARK MILLER, then induced Arlayne Smith to purchase an Interstate Life Insurance Company annuity, #FN 392966. The annuity was duly issued. You, MARK MILLER, received a commission. 9. You, MARK MILLER, failed to utilize the interest and dividend payments from the American Life and Casualty annuity to purchase the new Interstate annuity. Rather, you, MARK MILLER, without Arlayne Smith’s knowledge or informed consent, caused her American Life annuity to be surrendered and then utilized the proceeds to purchasing the Interstate annuity. 10. You, MARK MILLER, failed to disclose to Arlayne Smith that she would be assessed $4,964 in surrender fees upon the surrender of her American Life and Casualty annuity. Arlayne Smith would not have purchased the Interstate annuity if she had been made aware that you, MARK MILLER, intended to replace her American Life and Casualty annuity, and that she would have to pay surrender charges. You, MARK MILLER, were aware or should have been aware of this fact. 11. The Interstate annuity application asks the question “Will this application replace or change any life insurance or annuity policy.” This question is answered “No”. This response was false and a material misstatement of fact. You, MARK MILLER, were aware of or should have been aware of this fact. 12. You, MARK MILLER, failed to advise Arlayne Smith or Interstate Insurance Company that a replacement was involved and failed to file a replacement notice form, in violation of Rules 4-151.005, 4-151.006, and 4-151.009, Florida Administrative Code. 13. You, MARK MILLER made the misleading and deceptive statements, both of omission and commission, for the purpose of obtaining a fee, commission, money or other benefit from an insurance company. IT IS THEREFORE CHARGED that you, MARK MILLER, have violated or are accountable under the following provisions of the Florida Insurance Code which constitute grounds for the suspension or revocation of your licenses as an insurance agent in the state: (a) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.61 1(4), Florida Statutes] (b) 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 626.61 1(5), Florida Statutes] | (c) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes] (4) Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment. [Section 626.61 1(8), Florida Statutes] (fe) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.61 1(9), Florida Statutes] (f) 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) 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 626.61 1(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} a Violation of any lawful order or rule of the department. [Section 626.621(3), Florida Statutes] Gg) 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 to be a source of injury or loss to the public. [Section 626.621(6), Florida Statutes] (kK) 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] (ay Knowingly: a. Filing with any supervisory or other public official, b. Making, publishing, disseminating, circulating, c. Delivering to any person, d. Placing before the public, e. Causing, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement, [Section 626.954 1(1)(e) 1, Florida Statutes] (m) Knowingly making any misleading representations or incomplete or fraudulent comparisons or fraudulent material omissions of or with respect to any insurance policies or insurers for the purpose of inducing any person to surrender any insurance policy, or take out a policy of insurance in another insurer. [Section 626.9541(1)(1), Florida Statutes] 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 have a 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 US 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 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 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 Section 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 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 correspondencein 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 set out above. DATED and SIGNED this 11th day of _ September , 2000. ? f BILL NELSON Treasurer and Insurance Commissioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Administrative Complaint has been furnished by certified United States Mail to: MARK MILLER, 3591 Edington Way, Palm Harbor, Florida 34685, MARK MILLER, 2536 Countryside Boulevard, Clearwater, Florida 34623 and MARK MILLER, P. O. Box 15059, Clearwater, Florida 33766, this 11th day of __ September 2000. ( ips of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 (850) 413-4124 10

Docket for Case No: 00-004150PL