CB ASST 2 : FILED WL 5 ae Ineuyance be Docketed Wy ee THE TREASURER OF THE STATE OF FLORIDA 2, ' DEPARTMENT OF INSURANCE ‘ TOM GALLAGHER IN THE MATTER OF: ~ CARLOS M. BENITEZ / ADMINISTRATIVE COMPLAINT TO: CARLOS M. BENITEZ 3320 SW 947 Court Miami, Florida 33165 CARLOS M. BENITEZ 10536 SW 8" Street Miami, Florida 33174 CARLOS M. BENITEZ P.O. Box 650989 Miami, Florida 33265 You, CARLOS M. BENITEZ, 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 alleged: GENERAL ALLEGATIONS 1. You, CARLOS M. BENITEZ, are currently licensed in the state as a life and health insurance agent, and general lines insurance agent. 2. At all time pertinent to the dates and occurrences referred to in this Administrative Complaint you, CARLOS M. BENITEZ, were licensed as an insurance agent in this state. 3. At all times pertinent to the dates and occurrences referred to in this Administrative Complaint, you, CARLOS M. BENITEZ, were doing business as Universal Insurance Enterprises, an unincorporated insurance agency. 4. At all times pertinent to the dates and occurrences referred to in this Administrative Complaint all funds received by you, CARLOS M. BENITEZ, pursuant to Section 626.561, Florida Statutes, from consumers or on behalf of consumers were trust funds received in a fiduciary capacity and were to be paid over to persons entitled thereto in the regular course of business. COUNTI 5. Paragraphs one through three are realleged and incorporated herein by reference. 6. On or about April 5, 1999, you, CARLOS M. BENITEZ, received from Miami Tropical Nursery, Inc., a check in the amount of $2350.00 made payable to Universal Insurance Enterprises. These funds were intended by Miami Tropical Nursery to be a premium payment on a property and liability insurance policy to be issued by Clarendon Life Insurance Company. On or about April 10, 1999, you, CARLOS M. BENITEZ, received from Miami Tropical Nursery, Inc., a check in the amount of $2,351.00 made payable to Universal Insurance 2 Enterprises. These funds were also intended by Miami Tropical Nursery to be an additional premium payment on the previously mentioned insurance policy. Both checks were deposited into the business bank account for which you, CARLOS M. BENITEZ, had legal control. 7. You, CARLOS M. BENITEZ, without Miami Tropical Nursery’s knowledge or informed consent, failed to remit the funds to Clarendon Insurance Company or any other insurer s0 entitled but rather retained the moneys for your own use and benefit. You, CARLOS M. BENITEZ, failed to promptly remit the funds to an insurer or to return the funds to Miami Tropical Nursery or to anyone else so entitled. 8. You, CARLOS M. BENITEZ, issued a binder to Miami Tropical Nursery, which purported to show that the Clarendon insurance policy had been issued. This binder was false and a material misrepresentation of fact. At no time had Miami Tropical Nursery, Inc., been issued a Clarendon insurance policy and at no time was the nursery insured. You, CARLOS M. BENITEZ, were aware of this fact. 9. The above mentioned premium payment represented trust funds received by you, CARLOS M. BENITEZ, from Miami Tropical Nursery, Inc., ina fiduciary capacity for both the insured and an insurance company. 10. | You, CARLOS M. BENITEZ, have converted, misappropriated, or wrongfully withheld fiduciary funds belonging to Miami Tropical Nursery, Inc., and an insurance company. 11. Demand was made for the return of the funds to Miami Tropical Nursery, Inc., but you, CARLOS M. BENITEZ, refused to return the funds. IT IS THEREFORE CHARGED that you, CARLOS M. BENITEZ, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the State a cS ARS henna ey ee Treasurer and Insurance Commissioner which constitute grounds for the suspension or revocation of your insurance licenses and eligibility for licensure: (a) All premiums, return premiums, or other funds belonging to insurers or others received by an agent, solicitor, or adjuster in transactions under his license shall be trust funds so received by the licensee in a fiduciary capacity; and the licensee in the applicable regular course of business shall account for and paythe same to the insurer, insured, or other person entitled thereto. [Section 626.561(1), Florida Statutes]; (b) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract. {Section 626.611(5), Florida Statutes}; (c) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (d) Fraudulent or dishonest practices in the conduct of business under the license or permit. [Section 626.611(9), Florida Statutes]; (c) 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. [Section 626.611(10), Florida Statutes]; (f) Failure or refusal, upon demand, to pay over to any insurer he represents or has represented any money coming into his hands belonging to the insurer. [Section 626.621(4), Florida Statutes]; (g) False statements and entries. — 1. Knowingly: a. Filing with any supervisory or other public official, b. Making, publishing, disseminating, circulating, 4 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 626.9541(1)(e)1, Florida Statutes]. WHEREFORE, you, CARLOS M BENITEZ, 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. You are further notified that any order entered in this case revoking or suspending any license or eligibility for licensure held by you shall also apply to all other licenses and eligibility held by you under the Florida Insurance Code. 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 5 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 from 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 attomey will discuss this matter with you until the response has been received by the Department of Insurance. DATED this 5th day of Inly , 2002. KENNEY SHIPLEY Deputy Insurance Commissioner Vu, oy, OF gone CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a copy of the foregoing has been furnished to CARLOS M. BENITEZ, 3320 SW 94" Court, Miami, Florida 33165, CARLOS M. BENITEZ, 10536 SW 8" Street, Miami, Florida 33174, CARLOS M. BENITEZ, P.O. Box 650989, Miami, Florida 33265 by U.S. Certified Mail this _5,, day of __ July lorida Department of Insurarive Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 (850) 413-4124 STATE OF FLORIDA DEPARTMENT OF INSURANCE IN THE MATTER OF: CARLOS M. BENITEZ Case No: 61322-02-AG 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. I am requesting disposition of this matter as indicated below. (Choose one) 1.(] I do not dispute any of the Department’s factual allegations and I do not desire a hearing. I 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.{] I 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.: 9

Docket for Case No: 02-004537PL