FLORIDA. DEPARTMENT OF FINANCIAL SERVICES | FILED IN THE MITER OF: DEC 6 2mn5 Ols OVkKLPL DAVID K. GEMMELL a CASE NO.: 83554-05-AG a . 7 Dooketed by: Sa . a ADMINISTRATIVE COMPLAINT TO: DAVID K. GEMMELL 6584 Lakeshore Drive Milton, Florida 32570-5641 DAVID K, GEMMELL : A All American Insurance Agency of Pensacola, Inc. 3960 West Navy Boulevard, Suite 21 Pensacola, FL 32507-1268 YOU, DAVID K. GEMMELL, are hereby notified that, pursuant to Chapter 626, Florida Statutes, the Chief Financial Officer of the State of Florida (“the Department”) has caused to be made an oe : ' Sag ' ' , ‘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, DAVID K. GEMMELL, license identification number p047372, are currently licensed in this state as a general lines (property & casualty) and legal expense insurance agent. 2. At all times pertinent to the dates and occurrence referred to herein, you, DAVID K. GEMMELL, were licensed in this state to transact such insurance. . 3. Pursuant to Chapter 626, Florida Statutes, the Florida Department of Financial. Services has jurisdiction over your insurance licenses and appointments. | 4. During all times material to the allegations contained in this complaint you, DAVID K. GEMMELL, operated out of the A American Insurance of Pensacola, Inc. agency at 3960 W. Navy Blvd., Suite 21, Pensacola, Florida (“the agency”). 5. Department records indicate that you, DAVID K. GEMMELL, served as corporate vice-president/secretary and primary agent for the agency. 6. As a corporate officer of the agency and as the designated primary agent for the agency, you, DAVID K. GEMMELL, knew or should have known of the activities of salaried employees under your direct supervision and control and you were responsible and accountable for all such activities of the staff at the agency for the times and occurrences as hereafter presented. References to you, DAVID -K. GEMMELL, include persons acting under your direct supervision and ‘control at the agency described herein. 7. °' You, DAVID K. GEMMELL, are listed as the only authorized signor on the First Union National Bank account in your name and that you were an authorized signor on the agency’s bank account. at Bank of America. COUNT I ‘8. The above General Allegations numbered one through six are hereby realleged and fully incorporated herein by reference. 9. On or about August, 2002, Lela W. Amerson received a renewal notice on her homeowner's policy from TAPCO Underwriters, ‘Inc. (“TAPCO”), a copy of which went to you, DAVID K. GEMMELL. 10. On October 7, 2002, Ms. Amerson sent her renewal premium directly to TAPCO by check numbered 1676 in the amount of $855.04 made payable to TAPCO. The insurance carrier was Lloyd's of London (“Lloyd's”). il. On or about November, 2002, Ms. Amerson received a notice of cancellation or refusal to renew from Lloyd's. The reason for the notice was.the failure of you, DAVID K. GEMMELL, ‘to submit evidence of a diligent effort to place the risk with an admitted carrier. Following her receipt of this notification Ms. Amerson contacted you and you, DAVID K. GEMMELL, told her not to worry about it; that you would take care of it. 12. Ms. Amerson never received the purported February 5, 2003 agency letter of notification advising her that her policy had been cancelled. 13. After receiving another notice from TAPCO, Ms. Amerson contacted you, DAVID K. GEMMELL, and you again advised hér not to worry, that you would. get back with her, and you assured Ms. Amerson that she had homeowner's coverage until October 27, 2003. 14. You, DAVID K, GEMMELL, failed to return Ms, Amerson’s repeated telephone calls to the agency and it was not until the end of February, 2004 that she was finally able to meet with you at the agency, at which time you assured her that she had coverage even though Ms. Amerson had not made any premium Payment in October, 2003, 15. Ms. Amerson finally contacted another insurance agent and discovered that her policy had been cancelled December 13, 2002 and that the company had returned the premium to the agency on January 24, 2003. 16. You, DAVID xk. GEMMELL, knowingly and willfully failed to return Ms. Amerson’s return premium of $699.42 until over a year had passed. IT IS THEREFORE CHARGED that you, DAVID K. GEMMELL, 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: (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 pay the same to the insurer, insured, or other person entitled thereto. [Section 626.561(1), Florida Statutes]; (b) Any agent, solicitor, or adjuster who, not being lawfully entitled thereto, either temporarily or permanently diverts or appropriates such funds or any portion thereof to his or her own use or deprives the other person of a benefit therefrom. [Section 626.561(3), 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 permit. [Section 626.611(8), Florida Statutes]; (e) Fraudulent or dishonest practices in the conduct of business under the license or permit, - [Section 626.611(9), Florida Statutes]; (f£) Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in, conduct of business under the license. [Section 626.611(10), Florida Statutes]; . (g) Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code. [Section 626.611(13), Florida Statutes]. | COUNT II 17. The above General Allegations numbered one through seven are hereby realleged and fully incorporated herein by reference. 18. After you, DAVID K. GEMMELL, had quoted Charles F. Minnich, dr. $1,368.24 as premium payment for the purchase of a builders risk policy, Mr. Minnich sent a check to the agency in that amount on August 2, 2004. “19, Following landfall of Hurricane Ivan, you, DAVID K. GEMMELL, advised that Mr. Minnich that you would take care of his claim arising from damages to the Minnich property. However, repeated demands by Mr. Minnich to you for a copy of the policy, failed to provide Mr. Minnich with proof of insurance coverage on the risk at issue. 20. You, DAVID K. GEMMELL, finally provided Mr. Minnich- with a policy certificate number TAPBLDOO9956 showing Lloyd’s of London as the insurer. That policy actually belonged to another individual, Billy Bolden, which fact you knew and willfully misrepresented otherwise to Mr. Minnich. The same certificate showed a erroneous insurance period of from August 1, 2004 to February 1, 2004. 21. Mr. Minnich eventually contacted “Jennifer” with TAPCO. Mr. Minnich was able to obtain a policy with original issue dates only after proving that he had made the above- described premium Payment to you, DAVID kK. GEMMELL, or the agency, within 12 days of your issuance of the binder number you gave on the original application for the builders risk policy. 22. You, DAVID K. GEMMELL, knowingly and willfully deposited the Minnich premium Payment to the agency account and knowingly and willfully failed to timely forward premium payments to TAPCO on behalf of the insurer, bioyd' s. IT IS THEREFORE CHARGED that you, DAVID K. GEMMELL, have violated or are accountable under the 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 as described under Paragraphs (a) through (g) under Count I above. . COUNT III 23. The above General Allegations numbered one through seven are hereby realleged and fully incorporated herein by reference. 24. On June 11, 2003, Kenneth Ray Turk, closed on’ the purchase of his home at 5907 Southridge Road, Milton, Florida. Prior thereto Mr.. Turk had received a quote on a homeowner’s insurance policy from you, DAVID K. GEMMELL, requiring a premdum Payment of $498.00 to the agency for a Vanguard Fire & Casualty (“Vanguard”) policy. This payment was timely made by Mr. Turk via a closing agent at Chelsea Title: 25. Several weeks after Chelsea Title had paid the premium Payment, you, DAVID K. GEMMELL, called Mr. Turk and informed him that Vanguard would not write the policy due to Mr. Turk’s bad credit rating. Vanguard returned the $498.00 premium payment and Mr. Turk returned to the agency. 26. You, DAVID K. GEMMELL, then placed the risk with Capitol Preferred Insurance Company, Inc. (“Capitol”) for a premium payment of $767.00 paid by Mr. Turk on September 22, -2003. Although Mr. Turk never received a policy from Capitol, he believed that it was in the possession of his mortgage company. 27. After Mr. Turk’s property sustained damage as a result of Hurricane Ivan, Mr. Turk contacted Capitol to File a claim and only then discovered that the company had no record of him or his address, and that the policy number CVP002963400 that you, DAVID K. GEMMELL, had provided Mr. Turk, belonged to another individual.. 28. You, DAVID K. GEMMELL, knowingly -and willfully failed to ensure that the Turk property was covered by insurance and refund the $767.00 premium payment made to the agency by Mr. Turk. Mr. Turk had to take out an SBA loan in order to pay for the damages on his home. IT IS THEREFORE CHARGED that DAVID K. GEMMELL has violated or is accountable under the provisions of the Florida Insurance Code and Rules of the Department of Financial Services which constitute grounds for the suspension or revocation of his licenses and appointments as an insurance agent as described under paragraphs (a) through (g) under Count I above, WHEREFORE, you, DAVID K. GEMMELL, are hereby notified that the Chief Financial Services 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 Séctions 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 Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, . Florida 32399-0333. Your written vtesponse 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. ff 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; 10 (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 11 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 Financial Services. DATED and SIGNED this 4” day of December , 2005. i. KARHN CHANDLER Deputy Chief Financial Officer ‘12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT has been furnished to: DAVID K. GEMMELL, 6584 “Lakeshore Drive, Milton, FL 32570-5641; and DAVID kK. GEMMELL, A All American Insurance Agency of Pensacola, -Inc., 3960 . West Navy Boulevard, Suite 21, Pensacola, FL 32507-1268 by Certified Mail this Aud day of Decembey , 2005. DAVID J. BUSCH, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399 (850) 413-4146 Attorney for Department’ 13

Docket for Case No: 06-000286PL