yn FILED 03° ju 5 _ 3 20 py os, st 202 THE TREASURER OF THE STATE OF FLORIDA... Treasurer and DEPARTMENT OF INSURANCE!‘ , ner TOM GALLAGHER IN THE MATTER OF: CASE NO.: 60278-02-AG DARLENE JORDAN O’BRIEN O07 DAY! p ct / ADMINISTRATIVE COMPLAINT TO: DARLENE JORDAN O’BRIEN 4281G RR 4 Monticello, Florida 32344-9309 DARLENE JORDAN O’BRIEN Day Insurance Agency 3203-B Apalachee Parkway Tallahassee, Florida 32311-5203 You, DARLENE JORDAN O’BRIEN, license I.D. #4194387, are hereby notified that 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. Pursuant to Chapter 626, Florida Statutes, you, DARLENE JORDAN O’BRIEN, are currently licensed in this state as a general lines agent (2-20) and a health agent (2-40). 2. At all times pertinent to the dates and occurrences referred to herein, you, DARLENE JORDAN O’BRIEN, were licensed in this state as a general lines agent and a health insurance agent. 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, DARLENE JORDAN O’BRIEN, were an insurance agent with Day Insurance Agency. S. At all times relevant to the dates and occurrences referred to herein, all funds received by you, DARLENE JORDAN O’BRIEN, 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 6. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 7. On or about January 10, 2001, Donald Burkett went to Day Insurance Agency to renew his Progressive Automobile Policy with Progressive Insurance Company (“Progressive”). 8. Mr. Burkett gave a check in the amount of $390.00 to Kimberly Spivey to renew his automobile coverage for six months. 9. 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. 10. 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. 2 11. Mr. Burkett called the Day Insurance Agency and spoke to Kimberly Spivey who admitted that his payment had not been uploaded to the Progressive system in January. 12. On a fax dated June 28, 2001to Kathy at Progressive, you, DARLENE JORDAN O’BRIEN, admitted that Mr. Burkett’s payment was not uploaded to the Progressive system on January 10, 2001. IT IS THEREFORE CHARGED that you, DARLENE JORDAN O’BRIEN, 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 626.611(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]; Lvs) (e) 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]; (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 II 13. On or about August 28, 2001, Maria Cicciarelli went to the Day Insurance Agency and paid the final renewal payment for the six-month period on her automobile policy with Bankers Insurance Company. 14. Ms. Cicciarelli paid her policy with check number 1409 and she made the check payable to Bankers Insurance Company in the amount of $65.00. Subsequently, the check was deposited into the Day Insurance Agency account. 15. After Ms. Cicciarelli did not receive her renewal information, she contacted Day Insurance Agency to inquire as to whether her renewal payment had been received. Ms. Coley Williams, the new owner of Day Insurance Agency, stated that she had been cancelled on September 9, 2001 because she only paid $50.00 of her $67.00 policy premium. Also, Ms. Cicciarelli was told that she had received a refund check in the amount of $133.00 from Bankers Insurance Company. However, Ms. Cicciarelli never received this check. This refund check was also deposited into the Day Insurance Agency’s account. 16. Ms. Cicciarelli had had past experiences with the agency where Bankers Insurance Company received her payments late even when she paid at the agency. IT IS THEREFORE CHARGED that you, DARLENE JORDAN O’BRIEN, 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 626.611(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.}; (c) 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]; (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 II 17. On or about March 17, 2001, Ms. Toria Tate, the owner of a Quik-Lube, made a payment, in the amount of $1127.50 to Day Insurance Agency, on a one-year renewal on a General Garage Liability Insurance policy with Bankers Insurance Company. 18, On or about April 16, 2001, Ms. Tate made a second payment to Day Insurance Agency on the policy in the amount of $1127.65. 19. On or about April 16, 2001, you, DARLENE JORDAN O’BRIEN, issued a Declaration Sheet to Ms. Tate, which described the insurance coverages for the policy. 20. On or about September 12, 2001, a Policy Reconciliation sheet was issued by Bankers Insurance Company which showed that Ms. Tate’s payment had not been forwarded to Bankers. IT IS THEREFORE CHARGED that you, DARLENE JORDAN O’BRIEN, 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, retum 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 626.611(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 626.611(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 IV 21. From November, 2000 to July, 2001, Ms. Julie Anderson, an unlicensed person, was hired by you, DARLENE JORDAN O’BRIEN, to work at Day Insurance Agency. 22. During that time, Ms. Anderson was repeatedly left alone in the office and wrote in the binder book. 23. Ms. Anderson was also told by you, DARLENE JORDAN O’BRIEN, and Kimberly Spivey to hold renewals payments when they were paid in advance or in full before the due date. 24. At the time of the incident referenced in paragraph 22 and 23, Julie Anderson was not licensed as an insurance agent or customer representative. 25. As the primary agent of Day Insurance Agency, you, DARLENE JORDAN O’BRIEN, allowed Julie Anderson to act as an insurance agent and transact insurance without a license, which violates the Florida Insurance Code and the Florida Administrative Code. IT IS THEREFORE CHARGED that you. DARLENE JORDAN O'BRIEN, 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) Unlawful Activities by Unlicensed Insurance Agency Personnel. — qd) “Comparing insurance products; advising as to insurance needs or insurance matters; or interpreting policies or coverages. (2) Binding new, additional, or replacement coverage for new or existing customers; or binding coverage on or recording additional property under existing policies. (3) Soliciting the sale of insurance by telephone, in person, or by other communication. [Rule 4-222.060, Florida Administrative Code]; (b) No person shall transact insurance in this state, or relative to a subject of insurance resident, located or to be performed in this state, without complying with the applicable provisions of the code. [Section 624.11(1), Florida Statutes]; (c) [A] “primary agent” is a licensed agent who is responsible for the hiring and supervision of all individuals within an insurance agency location whether such individuals deal with the public in the solicitation or negotiation of insurance contracts or in the collection or accounting of moneys from the general public. [Section 626.592(2), Florida Statutes); (d) 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]; (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]; (g) 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. ]; (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]; (1) 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]; (m) Knowingly aiding, assisting, procuring, advising, or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department. [Section 626.621(12), Florida Statutes]. COUNT V 26. From November 1998 to April 1999, Carmen Lyles-Green worked at the Day Insurance Agency. 27. During that time, Carmen Lyles-Green made changes to automobile insurance policies such as changing and deleting a car or person to the policy. 11 . 28. At the time of the transaction referenced in paragraph 27, Carmen Lyles-Green was not licensed as an agent or customer representative. 29. As the primary agent of the Day Insurance Agency, you, DARLENE JORDAN O’BRIEN, allowed Carmen Lyles-Green, an unlicensed person, to act as an insurance agent and transact insurance without a license, which is a violation of the Florida Administrative Code and the Insurance Code. IT IS THEREFORE CHARGED that you, DARLENE JORDAN O’BRIEN, 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) Unlawful Activities by Unlicensed Agency Personnel. — (1) Comparing insurance products; advising as to insurance needs or insurance matters; or interpreting policies or coverages. (2) Binding new, additional, or replacement coverage for new or existing customers; or binding coverage on or recording additional property under existing policies. (3) Soliciting the sale of insurance by telephone, in person, or by other communication. [Rule 4-222.060, Florida Administrative Code}; (b) No person shall transact insurance in this state, or relative to a subject of insurance resident, located or to be performed in this state, without complying with the applicable provisions of the code. [Section 624.11(1), Florida Statutes]; (c) [A] “primary agent” is a licensed agent who is responsible for the hiring and supervision of all individuals within an insurance agency location whether such individuals deal with the public in the solicitation or negotiation of insurance contracts or in the collection or accounting of moneys from the general public. [Section 626.592(2), Florida Statutes]; (d) 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]; (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]; (g) 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.]; (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]; 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]; (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]; (1) 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]; (m) Knowingly aiding, assisting, procuring, advising, or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department. [Section 626.621(12), Florida Statutes]. COUNT VI 30. | Kimberly Day Spivey was a licensed customer representative at the Day Insurance Agency. 31. On or about January 10, 2001, Kimberly Spivey received a check, payable to Day Insurance Agency, in the amount of $390.00 from Donald Burkett for payment on his automobile policy with Progressive Insurance Company. Later, this check was deposited into account number 0611592701. 32. Kimberly Spivey issued a receipt to Donald Burkett but failed to properly remit the premium to Progressive. 14 33. Subsequently, Donald Burkett called the Day Insurance Agency, once he was advised by the Department of Highway and Motor Vehicle that his Progressive automobile policy was cancelled, and spoke to Kimberly Spivey who admitted that the payment was not uploaded to the Progressive system. 34. | Kimberly Spivey identified herself as an insurance agent in an advertisement in the Yellow Pages of the Sprint Phone Directory. 35. As the supervising agent, you, DARLENE JORDAN O’BRIEN, are held accountable for the acts of Kimberly Spivey, a customer representative. IT IS THEREFORE CHARGED that you, DARLENE JORDAN O'BRIEN, 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) Duties of Designated Supervising Agent (1) The designated supervising agent is jointly and severally accountable and responsible with the agency to the Department, for acts and representations of the customer representative. (2) An agent who is designated to supervise the customer representative thereby incurs the following obligations, in addition to those otherwise set “out in this rule: (a) The agent must supervise the customer representative, as described in this rule. This duty shall not be delegated. This duty remains on the designated supervising agent even when the customer representative is performing customer representative services for other agents within the agency. (b) The agent must assure that the customer representative does not exceed the allowable scope of the customer representative’s licensure, duties and authority. [Rule 4-213.100(1),(2)(a)(b), Florida Administrative Code]; (b) 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]; (c) 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]; (d) 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]; (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]; (g) 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.]; (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]; 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]; (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]; (1) 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, 7 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]; (m) Knowingly aiding, assisting, procuring, advising, or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department. \ (Section 626.621(12), Florida Statutes]. WHEREFORE, you, DARLENE JORDAN O’BRIEN, 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. 2 te SC RT 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 3rd_ day of July , 2002 KENNEY SHIPLEY Deputy Insurance Commissioner CERTIFICATE OF SERVICE TI HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and ELECTION OF RIGHTS has been fumished to: DARLENE JORDAN O’BRIEN, 4281 G RR 4, Monticello, Florida 32344-9309; DARLENE JORDAN O'BRIEN, Day Insurance Agency, 3203-B, Apalachee Parkway, Tallahassee, Florida 32311-5203; by Certified Mail this_3rq__ day of July, 2002. -_ -. } /_7 TADASIAH JACKSON” 7 Division of Legal Services 612 Larson Building 200 East Gaines St. Tallahassee, Florida 32399-0333 (850) 413-4210 21

Docket for Case No: 03-002292PL