DA- BEG PL FILED sep 9 2002 THe TREASURER OF THE STATE OF FLORIDA rw, DEPARTMENT OF INSURANCE Docketed by’ ToM GALLAGHER IN THE MATTER OF: CASE NO.: 60277-02-AG KIMBERLY DAY SPIVEY / ao re ADMINISTRATIVE COMPLAINT A TO: KIMBERLY DAY SPIVEY State Road 158 Lloyd, Florida 32337 ‘ w -~ ‘ ™ KIMBERLY DAY SPIVEY ™ Day Insurance Agency 3203-B Apalachee Parkway Tallahassee, Florida 32311-5203 6b KIMBERLY DAY SPIVEY P.O. Box 262 Lloyd, Florida 32337-0262 You, KIMBERLY DAY SPIVEY, license LD. #A25110 9, are hereby notified that the Insurance Commissioner of the State of Florid a has caused to be made an investigation of your activities while licensed as an in surance agent in this state, as a result of which it is alleged: GENERAL ALLEGATIONS 1. Pursuant to Chapter 626, Florida Statutes, you, KIMBERLY DAY SPIVEY, are currently licensed in this state as a custo mer representative (4-40). 2. At all times pertinent to the dates and occurrences referr ed to herein, you, KIMBERLY D. AY SPIVEY, were licensed in this state as a customer representative. 3. Pursuant to Chapter 626, Florida Statutes, the Florida Department of Insurance (hereinafter referred to as “Department”) has jurisdiction over your insurance license and appointment. 4. At all times relevant to the dates and occurrences referred to herein you, KIMBERLY DAY SPIVEY, were a customer representative with Day Insurance Agency and under the direct supervision of Darlene Jordan O’Brien, the primary agent for the Day Insurance Agency. 5. At all times relevant to the dates and occurrences referred to herein you, KIMBERLY DAY SPIVEY, were an owner of the Day Insurance Agency. 6. At all times relevant to the dates and occurrences referred to herein, all funds received by you, KIMBERLY DAY SPIVEY, from consumers or on behalf of consumers representing premiums for insurance policies, were trust funds pursuant to Section 626.561(1), Florida Statutes, and were received in a fiduciary capacity and were to be accounted for and paid over to the insurer, insured or other persons entitled thereto in the regular course of business. COUNT I 7. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 8. On or about January 10, 2001, Donald Burkett went to Day Insurance Agency to renew his Progressive Automobile Policy with Progressive Insurance Company (“Progressive”). 9. Mr. Burkett gave a check in the amount of $390.00 to you, KIMBERLY DAY SPIVEY, to renew his automobile coverage for six months. 10. On or about July 5, 2001, Mr. Burkett received a letter from the Department of Highway Safety and Motor Vehicles, which stated that Mr. Burkett’s Progressive policy had been cancelled. 11. At this time, the Progressive book of Day Insurance Agency had been sold to Lumpkin and Oelerich Insurance Agency. That agency referred Mr. Burkett back to Day Insurance Agency. 12. Mr. Burkett called the Day Insurance Agency and spoke to you, KIMBERLY DAY SPIVEY, who admitted that his payment had not been uploaded to the Progressive system in January. 13. Ona fax dated June 28, 2001to Kathy at Progressive, Darlene O’Brien admitted that Mr. Burkett’s payment was not uploaded to the Progressive system on January 10, 2001. 14. At all times relevant to the dates and occurrences referred to herein you, KIMBERLY DAY SPIVEY, were a customer representative with Day Insurance Agency and an owner of Day Insurance Agency. IT IS THEREFORE CHARGED that you, KIMBERLY DAY SPIVEY, have violated or are 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 your license and appointments. (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, in a 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) 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) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.61 1(7), Florida Statutes]; (d) 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.|; (e) 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]; (f) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), 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 626.611(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}; (i) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, or having otherwise shown himself or herself to be a source of injury or loss to the public or detrimental to the public interest. [Section 626.621(6), Florida Statutes}. COUNT If 15. | You, KIMBERLY DAY SPIVEY, identified yourself as an insurance agent in an advertisement in the Yellow Pages of the Sprint Phone Directory. 16. As a customer representative, you, KIMBERLY DAY SPIVEY, knew or should have known that a customer representative cannot represent himself/herself as an insurance agent. IT IS THEREFORE CHARGED that you, KIMBERLY DAY SPIVEY, have violated or are 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 your license and appointments: (a) Customer Representative’s Duties (1) A customer representative shall comply with the lawful instructions and directions of the supervising agent as well as all applicable provisions of the Florida Insurance Code, and rules and orders of the Department. (2) A customer representative has a duty to ensure that their appointment and supervision is in compliance with this rule chapter, with other rules of the Department, and with the Insurance Code. [Rule 4-213.110(1)(2), Florida Administrative Code]; (b) The Customer Representative’s Authority; Limitations (5) A customer representative must always identify himself herself as a customer representative working for a named agent, and must never make or allow the impression that the customer representative is an agent. [Rule 4-213.130(5), Florida Administrative Code]; (e) 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]; (f) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (h) Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment. [Section 626.611(8), Florida Statutes]; (i) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; (j) 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]; (k) 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]; (I) In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of Chapter 626, Florida Statutes, or having otherwise shown himself or herself to be a source of injury or loss to the public or detrimental to the public interest. [Section 626.621(6), Florida Statutes]; WHEREFORE, you, KIMBERLY DAY SPIVEY, are hereby notified that the Treasurer and Insurance Commissioner intends to enter an Order suspending or revoking your 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, 626.692 and 626.9521, Florida Statutes, and under the other referenced sections of the Florida Statutes as set out in this ‘ Administrative Complaint. NOTICE OF RIGHTS You have the right to request a proceeding to contest this action by the Department pursuant to sections 120,569 and 120.57, Florida Statutes, and Rule 28-107, Florida Administrative Code. The proceeding request must be in writing, signed by you, and must be filed with the Department within twenty-one (21) days of your receipt of this notice. Completion of the attached Election of Proceeding form and/or a petition for administrative hearing will suffice as a written request. The request must be filed with the General Counsel as acting Agency Clerk, at the Florida Department of Insurance, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333. Your written response must be received by the Department no later than 5:00 p.m. on the twenty-first day after your receipt of this notice. Mailing the response on the twenty-first day will not preserve your right to a hearing. YOUR FAILURE TO RESPOND IN WRITING WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THIS NOTICE 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 you request a proceeding, you must provide information that complies with the requirements of Rule 28-107.004, Florida Administrative Code. As noted above, completion of the attached Election of Proceeding form conforms to these requirements. Specifically, your response must contain: (a) The name and address of the party making the request, for purpose of service; (b) A statement that the party is requesting a hearing involving disputed issues of material fact, or a hearing not involving disputed issues of material fact; and (c) A reference to the notice, order to show cause, administrative complaint, or other communication that the party has received form the agency. If a hearing of any type is requested, you have the right to be represented by counsel or other qualified representative at your expense, to present evidence and argument, to call and cross-examine witnesses, and to compel the attendance of witnesses and the production of documents by subpoena. If a proceeding is requested and there is no dispute of material fact, the provisions of section 120.57(2), Florida Statutes, apply. In this regard, you may submit oral or written evidence in opposition to the action taken by the Department or a written statement challenging the grounds upon which the Department 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. However, if you dispute material facts which are the basis for the Department’s action, you must request an adversarial proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes. 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, Florida. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior oral communication or correspondence in this matter shall be considered freeform agency action, and no such oral communication or correspondence shall operate as a valid request for an administrative proceeding. Any request for an 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. Mediation of this matter pursuant to section 120.573, Florida Statutes, is not available. No Department attorney will discuss this matter with you until the response has been received by the Department of Insurance. DATED this 9th _ dayof SEPTEMBER , 2002 KENNEY SHIPLEY Deputy Insurance Commissioner CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and ELECTION OF RIGHTS has been furnished to: KIMBERLY DAY SPIVEY, 4281 G RR 4, Monticello, Florida 32344-9309; KIMBERLY DAY SPIVEY, Day Insurance Agency, 3203-B, Apalachee Parkway, Tallahassee, Florida 32311-5203, KIMBERLY DAY SPIVEY, P.O. Box 262, Lloyd, Florida 32337-0262; by Certified Mail’ this 9th_ day of SEPTEMBER, 2002. 2 = pc, wae OE a pe / °° VADASIAH JACKSON “-" Division of Legal Services 612 Larson Building 200 East Gaines St. Tallahassee, Florida 32399-0333 (850) 413-4210 STATE OF FLORIDA nr ro) p DEPARTMENT OF INSURANCE cress IN THE MATTER OF: 02 OCT -3 PM &: 39 KIMBERLY DAY SPIVEY Case No: 60277-02-AG GEV iby. / ADMIRIS | RACIVE HE APINGS ELECTION OF PROCEEDING I have received and have read the Notice of the ADMINISTRATIVE COMPLAINT filed against me, including the Notice of Rights contained therein, and I understand my options. | am requesting disposition of this matter as indicated below. (Choose one) 1[] 1 do not dispute any of the Department’s factual allegations and I do not desire a hearing. | understand that by waiving my right to a hearing, the Department may enter a final order that adopts the Administrative Complaint and imposes the sanctions sought, including revoking my licenses and appointments as may be appropriate. 2. I do not dispute any of the Department's factual allegations and I hereby elect a proceeding to be conducted in accordance with section 120.57(2), Florida Statutes. In this regard, I desire to (Choose one): { ] Submit a written statement and documentary evidence in lieu of a hearing; or [ ] Personally attend a hearing conducted by a department hearing officer in Tallahassee, or { ] Attend that same hearing by way of a telephone conference call. 3. [J 1 do dispute one or more of the Department's factual allegations. I hereby request a hearing pursuant to section 120,57(1), Florida Statutes, to be held before the Division of Administrative Hearings. TO PRESERVE YOUR RIGHT TO A HEARING, YOU MUST FILE YOUR RESPONSE WITH THE DEPARTMENT OF INSURANCE WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT. THE RESPONSE MUST BE RECEIVED BY THE DEPARTMENT NO LATER THAN 5:00 P.M. ON THE TWENTY-FIRST DAY AFTER YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT. The address for filing is: General Counsel as acting agency clerk, Florida Department of Insurance, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0333. Signature Print Name Date: Address: Phone No.: BI

Docket for Case No: 02-003889PL