FLORIDA DEPARTMENT OF FINANCIAL SERVICES TOM GALLAGHER CHIEF FINANCIAL OFFICER F j LED STATE OF FLORIDA er he GPL DEC 3 2004 05-6915 IN THE MATTER OF: pocketed by; Wr WILLIAM H. SWINDELL CASE NO.: 68205-04-AG / o ADMINISTRATIVE COMPLAINT aN ee “ ¥ TO: WILLIAM H. SWINDELL Orange Park Insurance Agency 1670 Wells Road, Suite 11 Jacksonville, FL 32217 WILLIAM H. SWINDELL 7896 Rondeau Drive Orange Park, FL 32217 ree WILLIAM H. SWINDELL Zales Jewelers 1811 University Blvd. West Jacksonville, FL 32217 You, WILLIAM H. SWINDELL, license I.D. #4259334, are hereby notified that the Chief Financial Officer 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, WILLIAM H. SWINDELL, are currently licensed in this state as a General Lines Insurance Agent (Property & Casualty) (2-20). 2. At all times pertinent to the dates and occurrences referred to herein, you, WILLIAM H. SWINDELL, were licensed in this state as a General Lines Insurance Agent (Property & Casualty) (2-20). 3. Pursuant to Chapter 626, Florida Statutes, the Florida Department of Financial Services (hereinafter “Department’’) has jurisdiction over your insurance licenses and appointments. 4. Since May 2000, you, WILLIAM H. SWINDELL, have been listed as the primary agent for Insurance Savers, which was located at 1811 University Blvd. West, Jacksonville, Florida. As the primary agent and only licensed insurance agent of Insurance Savers, you, WILLIAM H. SWINDELL, are responsible for the supervision of all individuals employed by Insurance Savers 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. 5. At all times relevant to the dates and occurrences referred to herein, all funds received by you, WILLIAM H. SWINDELL, or somebody under your supervision, 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. 6. On November 3, 1997, the Department of Insurance issued a letter of guidance to you, WILLIAM H. SWINDELL, for aiding and abetting the unlicensed transaction of insurance. CQUNT I 7. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 8. Records filed with the Department by you, WILLIAM H. SWINDELL, indicate that your business address is 1811 University Blvd. West, Jacksonville, Florida and that you are still the primary agent of Insurance Savers. 9. The address, you, WILLIAM H. SWINDELL, have listed as your business address is, in fact, a jewelry store. You submitted the name “Zales Jewelers” as the business name for the Insurance Savers address. 10. You, WILLIAM H. SWINDELL, have not been employed by Insurance Savers since 2002 and are currently employed by Orange Park Insurance, which is located at 1670 Wells Road, Suite 11, Jacksonville, Florida. 11. You, WILLIAM H. SWINDELL, have failed to submit your current business address to the Department. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your license and appointments: (a) Failure to notify the department in writing of a change of name, residence address, principal business street address, or mailing address within 30 days, as specified in this code. {Section 626.551, Florida Statutes]; (b) 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]; (c) 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]; (d) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT I 12. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 13. Insurance Savers, Inc., maintained a checking account with Southtrust Bank, N.A. of Jacksonville, Florida in 2001. As primary agent of Insurance Savers, you, WILLIAM H. SWINDELL, were responsible for the funds in this account. 14. On the dates listed below, you, WILLIAM H. SWINDELL, or somebody acting under your supervision sent the following checks to Occidental Fire and Casualty Company of North Carolina as payment for customers’ automobile insurance premiums. All checks listed below were written for the stated amount and were returned for non-sufficient funds. DATE a. April 5, 2001 b. May 25, 2001 c. May 25, 2001 d. May 30, 2001 e. May 30, 2001 f. May 31, 2001 g. May 31, 2001 h. June 1,2001 i. June 1, 2001 j. July 13, 2001 k. July 25, 2001 1. July 28, 2001 m. July 30, 2001 n. August 1, 2001 o. August 1, 2001 p. August 1, 2001 CHECK # 0995 AMOUNT $194.14 $193.00 $262.00 $192.00 $184.00 $192.00 $307.00 $184.00 $286.00 $200.00 $181.65 $72.06 $25.00 $139.86 $92.69 $67.85 15. You, WILLIAM H. SWINDELL, failed to remit $2773.25 in monies collected from customers as policy premium payments to the insurer, placing Insurance Savers customers’ insurance policies in jeopardy. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services, which constitute grounds for the suspension or revocation of your licenses 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) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.61 1(7), Florida Statutes]; (c) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]; (4) 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) 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]; (f) Failure or refusal, upon demand, to pay over to any insurer he or she represents or has represented any money coming into his or her hands belonging to the insurer. [Section 626.621(4), Florida Statutes]; (g) 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 IX of this chapter, 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]; (h) Knowingly collecting any sum as a premium or charge for insurance, which is not then provided, or is not in due course to be provided, subject to acceptance of the risk by the insurer, by an insurance policy issued by an insurer as permitted by this code. [Section 626.9541(1)(0)1., Florida Statutes]; (i) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT II 16. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 17. On or about April 18, 2001, Nancy Sanabria and Augusto Demera purchased an automobile. Upon recommendation of an automobile salesperson, Nancy Sanabria and Augusto Demera contacted you, WILLIAM H. SWINDELL, by telephone to purchase an insurance policy for the automobile. 18. You, WILLIAM H. SWINDELL, never met with Nancy Sanabria and Augusto Demera on that day, neither did you provide them with an application or any other paperwork for the insurance policy. 19. Onor about April 18, 2001, you, WILLIAM H. SWINDELL, or somebody under your supervision, signed the name of Augusto Demera to an application for insurance with Occidental Fire & Casualty. 20. You, WILLIAM H. SWINDELL, or somebody under your supervision, submitted an application to Occidental Fire & Casualty on behalf of Augusto Demera, which purported to have his signature. However, this application was neither read nor signed by Augusto Demera, a fact that was known or should have been known to you. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: (a) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (b) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.61 1(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) Knowingly making any false entry of a material fact in any book, report, or statement of any person, or knowingly omitting to make a true entry of any material fact pertaining to the business of such person in any book, report, or statement of such person. [Section 626.9541(1)(e)2., Florida Statutes}; (e) Knowingly making a false or fraudulent written or oral statement or representation on, or relative to, an application or negotiation for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual. [Section 626.9541(1)(k)1., Florida Statutes]; (f) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]; (g) The primary agent in an unincorporated agency, or the primary agent in an incorporated agency in which no officer, director, or stockholder is an agent, shall be responsible and accountable for the acts of salaried employees under his or her direct supervision and control, while acting on behalf of the agency. [Section 626.592(5), Florida Statutes]; (h) Any general lines insurance agent who is an officer, director, or stockholder of an incorporated general lines insurance agency shall remain personally and fully liable and accountable for any wrongful acts, misconduct, or violations of any provisions of this code committed by such licensee or by any person under his or her direct supervision and control while acting on behalf of the corporation. [Section 624.734, Florida Statutes]. COUNT IV 21. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 22. On or about February 12, 2002, Monique D. Jackson made gave you, WILLIAM H. SWINDELL, or somebody under your supervision, the sum of $280.00 as down payment for an automobile insurance policy with Superior Insuarnce Group. 23. You, WILLIAM H. SWINDELL, only submitted $235.00 to Superior Insurance Group as payment for the aforementioned insurance policy. 24. You, WILLIAM H. SWINDELL, have misappropriated, converted, or withheld $4.00 beloning to Monique D. Jackson. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses 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]; (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 IX 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]; () Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT V 25. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 26. On or about August 22, 2002, Mishell A. Wright purchased an automobile insurance policy with Bristol West Insurance from you, WILLIAM H. SWINDELL. 27. In September 2002, without permission from Mishell A. Wright, you, WILLIAM H. SWINDELL, regested that Bristol West Insurance cancel her insurance policy. The policy was cancelled, but you did not secure other insurance for her, nor did you refund Mishell A. Wright's premium payment. 28. On or about October 22, 2002, you, WILLIAM H. SWINDELL, falsely informed Mishell A. Wright that you would be providing her with “free insurance” for three to four weeks. 29. On October 30, 2002, Mishell A. Wright was involved in an automobile accident. Because you, WILLIAM H. SWINDELL, had cancelled her insurance policy without permission, Mishell A. Wright suffered a significant financial loss. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: (a) 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]; (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]; (d) Permitting, or offering to make, or making, any contract or agreement as to such contract other than as plainly expressed in the insurance contract issued thereon. [Section 626.9541(1)(h)1.a., Florida Statutes]; (e) Knowingly collecting any sum as a premium or charge for insurance, which is not then provided, or is not in due course to be provided, subject to acceptance of the risk by the insurer, by an insurance policy issued by an insurer as permitted by this code. [Section 626.9541(1)(o)1., Florida Statutes]; (f) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. il COUNT VI 30. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 31. On or about August 22, 2002, Mishell A. Wright gave you, WILLIAM H. SWINDELL, the sum of $375.00 as down payment for an automobile insurance policy with Bristol West Insurance. However, Bristol West Insurance only received $289.94 of the $375.00 down payment made by Mishell A. Wright. 32. Mishel! A. Wright was not told that $85.06 of her down payment was a charge for a membership in a travel club which purportedly offers towing and other ancillary coverage for a motor vehicle. 33. You, WILLIAM H. SWINDELL, willfully ignored the wishes of Mishell A. Wright and without her consent took $85.06 of Mishell A. Wright’s money to pay for a membership that she did not want. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: (a) Knowingly making a false or fraudulent written or oral statement or representation - on, or relative to, an application or negotiation for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual. [Section 626.9541(1)(k)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]; (d) 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 626.611 (5), Florida Statutes]; (e) 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]; (f) Representing to the applicant that a specific ancillary coverage or produce is included in the policy applied for without an additional charge when such charge is required. [Section 626.9541(1)(z)2., Florida Statutes]; (g) Charging an applicant for a specific ancillary coverage or product, in addition to the cost of the motor vehicle insurance coverage applied for, without the informed consent of the applicant. [Section 626.9541(1)(z)3., Florida Statutes]; (h) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT VII 34, The above general allegations are hereby re-alleged and fully incorporated herein by reference. 35. While employed as the only primary agent at Insurance Savers, you, WILLIAM H. SWINDELL, permitted unlicensed individuals, namely David Leslie and Leslie Dawn Kelly, to solicit insurance at the location of your business. 13 36. The Department of Insurance sent you, WILLIAM H. SWINDELL, a letter of guidance on November 3, 1997, advising you not to aid and abet unlicensed individuals in soliciting insurance. 37. You, WILLIAM H. SWINDELL, knew or should have known that the Department of Insurance issued an Order to Cease and Desist to David Leslie and that Leslie Dawn Kelly entered into a Settlement Stipulation for Consent Order with the Department of Insurance as a result of their unlicensed activities while under your supervision. These documents ordered David Leslie and Leslie Dawn Kelly, employees under your supervision at Insurance Savers, not to engage in the unlicensed solicitation of insurance. 38. You, WILLIAM H. SWINDELL, knew or should have known that David Leslie and Leslie Dawn Kelly were soliciting insurance by: (1) Describing the benefits or terms of insurance coverage, including premiums or rates of return, (2) Distributing an invitation to contract to prospective purchasers; (3) Making general or specific recommendations as to insurance products; (4) Completing orders or applications for insurance products; or (5) Comparing insurance products, advising as to insurance matters, or interpreting policies or coverages. 39. Under oath, you, WILLIAM H. SWINDELL, have stated that David Leslie, an individual not licensed by the Department, kept the commissions from insurance policies sold through Insurance Savers. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: 14 (a) No employee of an agent or agency may bind insurance coverage unless licensed and appointed as a general lines agent or customer representative. [Section 626.0428(2), Florida Statutes]; (b) No employee of an agent or agency may initiate contact with any person for the purpose of soliciting insurance unless licensed and appointed as a general lines agent or customer representative. [Section 626.0428(3), Florida Statutes]; (c) No person may be, act as, or advertise or hold himself or herself out to be an insurance agent or customer representative unless he or she is currently licensed by the department and appointed by one or more insurers. [Section 626.112(1)(a), Florida Statutes); (d) No insurance agent, insurance agency, or other person licensed under the Insurance Code may pay any fee or other consideration to an unlicensed person other than an insurance agency for the referral of prospective purchasers to an insurance agent which is in any way dependent upon whether the referral results in the purchase of an insurance product. [Section 626.112(8), Florida Statutes]; (e) The primary agent in an unincorporated agency, or the primary agent in an incorporated agency in which no officer, director, or stockholder is an agent, shall be responsible and accountable for the acts of salaried employees under his or her direct supervision and control, while acting on behalf of the agency. [Section 626.592(5), Florida Statutes]; (f) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (g) 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]; (h) 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]; (i) 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]; (j) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT VII 40. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 41. On or about April 18, 2001, James Lee, an automobile salesperson employed by JD Byrider in Jacksonville, Florida, negotiated, solicited, or otherwise transacted an automobile insurance policy to Nancy Sanabria and Augusto Demera on behalf of Insurance Savers. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was not licensed as an insurance agent and therefore could not legally conduct transactions. 42. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was soliciting insurance by: (1) Describing the benefits or terms of insurance coverage, including premiums or rates of return; (2) Distributing an invitation to contract to prospective purchasers; (3) Making general or specific recommendations as to insurance products; (4) Completing orders or applications for insurance products; or (5) Comparing insurance products, advising as to insurance matters, or interpreting policies or coverages. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: (a) 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 this code. [Section 624.11(1), Florida Statutes]; (b) No person may be, act as, or advertise or hold himself or herself out to be an insurance agent or customer representative unless he or she is currently licensed by the department and appointed by one or more insurers. [Section 626.112(1)(a), Florida Statutes]; (c) The primary agent in an unincorporated agency, or the primary agent in an incorporated agency in which no officer, director, or stockholder is an agent, shall be responsible and accountable for the acts of salaried employees under his or her direct supervision and control, while acting on behalf of the agency. [Section 626.592(5), Florida Statutes]; (d) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (ce) 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) 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]; (g) 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}; (h) No individual shall, unless licensed as a general lines agent, solicit insurance or procure applications therefore. [Section 626.7315(1), Florida Statutes]; (i) No individual shall, unless licensed as a general lines agent, in this state, receive or issue a receipt for any money on account of or for any insurer, or receive or issue a receipt for money from other persons to be transmitted to any insurer for a policy, contract, or certificate of insurance or any renewal thereof, even though the policy, certificate, or contract is not signed by him or her as agent or representative of the insurer. [Section 626.7315(2), Florida Statutes]; G) No individual shall, unless licensed as a general lines agent, directly or indirectly represent himself or herself to be an agent of any insurer or as an agent, to collect or forward any insurance premium, or to solicit, negotiate, effect, procure, receive, deliver, or forward, directly or indirectly, any insurance contract or renewal thereof or any endorsement relating to an insurance contract, or attempt to effect the same, of property or insurable business activities or interests, located in this state. [Section 626.7315(3), Florida Statutes]; (k) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT Ix 43. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 44. On or about June 23, 2001, James Lee, an automobile salesperson employed by JD Byrider in Jacksonville, Florida, negotiated, solicited, or otherwise transacted an automobile 18 insurance policy to Tracey J. Johnson on behalf of Insurance Savers. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was not licensed as an insurance agent and therefore could not legally conduct transactions. 45. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was soliciting insurance by: (1) Describing the benefits or terms of insurance coverage, including premiums or rates of return; (2) Distributing an invitation to contract to prospective purchasers; (3) Making general or specific recommendations as to insurance products; (4) Completing orders or applications for insurance products; or (5) Comparing insurance products, advising as to insurance matters, or interpreting policies or coverages. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: (a) 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 this code. [Section 624.11(1), Florida Statutes]; (b) No person may be, act as, or advertise or hold himself or herself out to be an insurance agent or customer representative unless he or she is currently licensed by the department and appointed by one or more insurers. [Section 626.112(1)(a), Florida Statutes]; (c) The primary agent in an unincorporated agency, or the primary agent in an incorporated agency in which no officer, director, or stockholder is an agent, shall be responsible and accountable for the acts of salaried employees under his or her direct supervision and control. while acting on behalf of the agency. [Section 626.592(5), Florida Statutes]; (d) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), 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) 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), Flonda Statutes]; (g) 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]; (h) No individual shall, unless licensed as a general lines agent, solicit insurance or procure applications therefore. [Section 626.7315(1), Florida Statutes]; (i) No individual shall, unless licensed as a general lines agent, in this state, receive or issue a receipt for any money on account of or for any insurer, or receive or issue a receipt for money from other persons to be transmitted to any insurer for a policy, contract, or certificate of insurance or any renewal thereof, even though the policy, certificate, or contract is not signed by him or her as agent or representative of the insurer. [Section 626.7315(2), Florida Statutes]; (j) No individual shall, unless licensed as a general lines agent, directly or indirectly represent himself or herself to be an agent of any insurer or as an agent, to collect or forward any insurance premium, or to solicit, negotiate, effect, procure, receive, deliver, or forward, directly or indirectly, any insurance contract or renewal thereof or any endorsement relating to an 20 insurance contract, or attempt to effect the same, of property or insurable business activities or interests, located in this state. [Section 626.7315(3), Florida Statutes]; (k) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT X 46. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 47. On or about August 30, 2001, James Lee, an automobile salesperson employed by JD Byrider in Jacksonville, Florida, negotiated, solicited, or otherwise transacted an automobile insurance policy to Tara Delia Baker on behalf of Insurance Savers. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was not licensed as an insurance agent and therefore could not legally conduct transactions. 48. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was soliciting insurance by: (1) Describing the benefits or terms of insurance coverage, including premiums or rates of retum; (2) Distributing an invitation to contract to prospective purchasers; (3) Making general or specific recommendations as to insurance products; (4) Completing orders or applications for insurance products; or (5) Comparing insurance products, advising as to insurance matters, or interpreting policies or coverages. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: 21 (a) 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 this code. [Section 624.11(1), Florida Statutes]; (b) No person may be, act as, or advertise or hold himself or herself out to be an insurance agent or customer representative unless he or she is currently licensed by the department and appointed by one or more insurers. [Section 626.112(1)(a), Florida Statutes]; (c) The primary agent in an unincorporated agency, or the primary agent in an incorporated agency in which no officer, director, or stockholder is an agent, shall be responsible and accountable for the acts of salaried employees under his or her direct supervision and control, while acting on behalf of the agency. [Section 626.592(5), Florida Statutes]; (d) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), 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) 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]; (g) 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]; (h) No individual shall, unless licensed as a general lines agent, solicit insurance or procure applications therefore. [Section 626.7315(1), Florida Statutes]; 22 (i) No individual shall, unless licensed as a general lines agent, in this state, receive or issue a receipt for any money on account of or for any insurer, or receive or issue a receipt for money from other persons to be transmitted to any insurer for a policy, contract, or certificate of insurance or any renewal thereof, even though the policy, certificate, or contract is not signed by him or her as agent or representative of the insurer. [Section 626.7315(2), Florida Statutes]; (j) No individual shall, unless licensed as a general lines agent, directly or indirectly represent himself or herself to be an agent of any insurer or as an agent, to collect or forward any insurance premium, or to solicit, negotiate, effect, procure, receive, deliver, or forward, directly or indirectly, any insurance contract or renewal thereof or any endorsement relating to an insurance contract, or attempt to effect the same, of property or insurable business activities or interests, located in this state. [Section 626.7315(3), Florida Statutes]; (k) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. COUNT XI 49. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 50. On or about February 13, 2002, James Lee, an automobile salesperson employed by JD Byrider in Jacksonville, Florida, negotiated, solicited, or otherwise transacted an automobile insurance policy to Shala D. Woods on behalf of Insurance Savers. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was not licensed as an insurance agent and therefore could not legally conduct transactions. 51. You, WILLIAM H. SWINDELL, knew or should have known that James Lee was soliciting insurance by: (1) Describing the benefits or terms of insurance coverage, including 23 premiums or rates of return; (2) Distributing an invitation to contract to prospective purchasers; (3) Making general or specific recommendations as to insurance products; (4) Completing orders or applications for insurance products; or (5) Comparing insurance products, advising as to insurance matters, or interpreting policies or coverages. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: (a) 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 this code. [Section 624.11(1), Florida Statutes]; (b) No person may be, act as, or advertise or hold himself or herself out to be an insurance agent or customer representative unless he or she is currently licensed by the department and appointed by one or more insurers. [Section 626.112(1)(a), Florida Statutes]; (c) The primary agent in an unincorporated agency, or the primary agent in an incorporated agency in which no officer, director, or stockholder is an agent, shall be responsible and accountable for the acts of salaried employees under his or her direct supervision and control, while acting on behalf of the agency. [Section 626.592(5), Florida Statutes]; (d) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), 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]; 24 (f) 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]; (g) 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]; (h) No individual shall, unless licensed as a general lines agent, solicit insurance or procure applications therefore. [Section 626.7315(1), Florida Statutes]; (i) No individual shall, unless licensed as a general lines agent, in this state, receive or issue a receipt for any money on account of or for any insurer, or receive or issue a receipt for money from other persons to be transmitted to any insurer for a policy, contract, or certificate of insurance or any renewal thereof, even though the policy, certificate, or contract is not signed by him or her as agent or representative of the insurer. [Section 626.7315(2), Florida Statutes]; (j) No individual shall, unless licensed as a general lines agent, directly or indirectly represent himself or herself to be an agent of any insurer or as an agent, to collect or forward any insurance premium, or to solicit, negotiate, effect, procure, receive, deliver, or forward, directly or indirectly, any insurance contract or renewal thereof or any endorsement relating to an insurance contract, or attempt to effect the same, of property or insurable business activities or interests, located in this state. [Section 626.7315(3), Florida Statutes]; (k) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(1), Florida Statutes]. 25 COUNT XII 52. The above general allegations are hereby re-alleged and fully incorporated herein by reference. 53. On or about October 2, 2002, duly authorized department investigators visited Insurance Savers office, located at 1811 University Blvd., Jacksonville, Florida, to view customer files for Shala D. Woods and Tracey J. Johnson, WILLIAM H. SWINDELL, were not able to locate the files for those customers. 54. Shala D. Woods and Tracey J. Johnson made payments on their respective insurance policies less than three years prior to October 2, 2002. 55. Although required to do so by both Florida Statutes and the insurance companies for which you sold the policies, you , WILLIAM H. SWINDELL, and employees under your supervision, failed to maintain any documents relating to your customers’ policies. IT IS THEREFORE CHARGED that you, WILLIAM H. SWINDELL, have violated or are accountable under the following provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of your licenses and appointments: (a) The licensee shall keep and make available to the department or office books, accounts, and records as will enable the department or office to determine whether such licensee is complying with the provisions of this code. Every licensee shall preserve books, accounts, and records pertaining to a premium payment for at least 3 years after payment. [Section 626.561(2), Florida Statutes]; (b) The primary agent in an unincorporated agency, or the primary agent in an incorporated agency in which no officer, director, or stockholder is an agent, shall be responsible 26 and accountable for the acts of salaried employees under his or her direct supervision and control, while acting on behalf of the agency. [Section 626.592(5), Florida Statutes]; (c) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (d) 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]; (e) 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]; (f) Every agent transacting any insurance policy must maintain in his or her office, or have readily accessible by electronic or photographic means, such records of policies transacted by him or her as to enable the policyholders and department to obtain all necessary information, including daily reports, applications, change endorsements, or documents signed or initialed by the insured concerning such policies. [Section 626.748, Florida Statutes]; (g) Transacting insurance in this state without complying with the applicable provisions of this code. [Section 624.11(L), Florida Statutes]. WHEREFORE, you, WILLIAM H. SWINDELL, are hereby notified that the Chief Financial Officer 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, and 626.9521, Florida Statutes, and under the other referenced Sections of the Florida Statutes as set out in this Administrative Complaint. 27 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 Financial Services, 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. {f 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. 28 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. 29 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 Financial Services. DATED and SIGNED this. ad day of Decembeyroos, KAREN CHANDLER Deputy Chief Financial Officer 30 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: WILLIAM H. SWINDELL, 7896 Rondeau Drive, Jacksonville, FL 32217; WILLIAM H, SWINDELL, 1670 Wells Road, Suite 11, Orange Park, FL 32217 by Certified Mail this 344 day of Decom : Qed ) kel pn David C. Hawkins Assistant General Counsel Florida Bar Number 655279 Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Phone: 850-413-1606 Fax: 850-488-9373 31

Docket for Case No: 05-000519PL