FLORIDA DEPARTMENT OF FINANCIAL SERVICES TOM GALLAGHER yg oa are FILED AUG 4 2006 IN THE MATTER OF: Ol “339! PL Docketed by E7-. DAVID ARTHUR FLEISCHER CASE NO.: 81798-06-AG / ADMINISTRATIVE COMPLAINT TO: DAVID ARTHUR FLEISCHER 1022 SE 30" Street Naples, Florida 33904-3929 DAVID ARTHUR FLEISCHER Daveco & Associates Insurance Marketing, Inc. 247 South Airport Road Naples, FL 34104 YOU, DAVID ARTHUR FLEISCHER, license number A085766, are hereby notified that the Chief Financial Officer of the State of Florida (“the Department”), 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, DAVID ARTHUR FLEISCHER, license identification number A085766 are currently licensed in this state as a Life & Variable Annuity (2-14), Life & Variable Annuity & Health (2-15), Life (2-16), Life & Health (2-18), and Health (2-40) insurance agent. 2. At all times pertinent to the dates and occurrence referred to herein, you, DAVID ARTHUR FLEISCHER, were licensed in this state as an insurance agent. 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 ARTHUR FLEISCHER, operated and were owner and president of Daveco & Associates Insurance Marketing, Inc. (“the agency” or “Daveco”) insurance agency having a principal address listed with the Florida Secretary of State of 1022 SE 30" Street, Cape Coral, FL 33904-3929, According to your statement you, DAVID ARTHUR FLEISCHER, closed your Naples office at the location shown above in April, 2003. 5. At all times pertinent to the allegations of this complaint, you, DAVID ARTHUR FLEISCHER, as owner and president of the agency, were personally and fully liable and accountable for any wrongful acts, misconduct, or violations of any provisions of the Florida Insurance Code committed by you or by any person under your direct supervision and control was neither a licensed nor appointed insurance agent, but with your full lnowledge and consent held himself out as such while employed with the agency. [Sections 626.734, 626.795, and 626.839, Florida Statutes] 6. You, DAVID ARTHUR FLEISCHER, knowingly and intentionally placed Bill Irwin essentially in charge of your Naples office location to engage in insurance sales activities at that location when you knew or should have known that such conduct was contrary to the above-cited provisions of the Florida Insurance Code. we 7. Bank records show that Bill Irwin owned a personal savings account and checking account at Community Bank of Naples and regularly deposited insurance clients’ checks to those accounts for his own personal benefit, as more particularly described below. COUNT I 9. The above General Allegations numbered one through seven are hereby realleged and fully incorporated herein by reference. 10. Curtis Dale Donovan met Bill Irwin in early July, 2002. Later that year Irwin explained various insurance options to Mr. Donovan, leaving Mr. Donovan with the impression that Irwin was a Florida insurance agent. 11, Relying upon representations made by Irwin, Mr. Donovan wrote a check in the amount of $393.90 made payable to Medical Savings Insurance Company (“MSA”) and gave it to Irwin, together with a completed application for medical insurance coverage. Irwin assured Mr. Donovan that the policy would take effect November 1, 2002. Later Irwin advised Mr. Donovan that the policy would not cover his pregnant wife, but would include both Mr. Donovan and the two Donovan children. 12. Later Mr. Donovan checked with MSA and discovered that they had not received anything from you, DAVID ARTHUR FLEISCHER, your agency, or your sales agent, Irwin. When Mr. Irwin contacted you, DAVID ARTHUR F LEISCHER, and explained his lack of insurance coverage, your response was simply, “Oh, you too.” When Mr. Donovan demanded to see a copy of Irwin’s insurance license you responded by stating that you did not know whether Irwin was licensed, that he was only a telemarketing employee. 13. Although Mr. Donovan was eventually refunded his premium payment of $393.90, he and his family suffered a lapse in medical coverage, together with attendant losses. 14, You, DAVID ARTHUR FLEISCHER, willfully provided the means by which your employee Irwin, mishandled and misappropriated insurance premiums after wrongfully holding himself out to be a licensed insurance agent. IT IS THEREFORE CHARGED that you, DAVID ARTHUR FLEISCHER, 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 as a life and health insurance agent: (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) Willful use of an insurance license to circumvent any of the requirements or prohibitions of this code. [Section 626.61 1(4)]; (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)]; (e) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]; (f) Fraudulent or dishonest practices in the conduct of business under the license or permit. [Section 626.611(9), Florida Statutes]; (zg) 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(1 0]; (h) 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, commission, or office. [Section 626.621(12), Florida Statutes]; (i) 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]. COUNT II 15. The above General Allegations numbered one through seven are hereby realleged and fully incorporated herein by reference. 16. Roberta Murphy contacted Celtic Insurance Company (“Celtic”) to obtain health insurance and was advised to meet with Bill Irwin at the Naples office to transact insurance and obtain a Celtic policy through him. Ms. Murphy met with Irwin and gave him a check for $565.60 as premium payment on a health insurance policy with Celtic. 17. Irwin deposited all or part of the check to his own account and Ms. Murphy later discovered that she had no health insurance, She was, however, later able to obtain coverage from Celtic. 18. Asa direct result of your failure to not only properly supervise Irwin, but essentially allowing him, and providing him with the Means, to run amuck clothed with the indicia of a licensed Florida insurance agent you, DAVID ARTHUR FLEISCHER, exposed Ms. Murphy to a period of having no health insurance coverage. IT IS THEREFORE CHARGED that you, DAVID ARTHUR FLEISCHER, have violated or are accountable under those provisions of the Florida Insurance Code and Rules of the Department of Financial Services described under Count I, paragraphs (a) through (i) above, which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent. COUNT III 19, Paragraphs one through seven are realleged and incorporated herein by reference. 20. Robert L, Rathburn met with you, DAVID ARTHUR FLEISCHER, and you sold him an American Pioneer supplemental insurance policy. 21. Mr. Rathburn then provided Irwin with a check for $199.00 made payable to American Pioneer services. Irwin took the check and deposited all or part of it to the benefit of his own account thus leaving Mr. Rathburn without the supplemental insurance he had purchased. 22. Asa direct result of your failure to not only properly supervise Irwin, but essentially allowing him, and providing him with the means, to misappropriate insurance premiums, you, DAVID ARTHUR FLEISHCHER, exposed Mr. Rathburn to a period of having no supplemental insurance coverage. IT IS THEREFORE CHARGED that you, DAVID ARTHUR FLEISCHER, have violated or are accountable under those provisions of the Florida Insurance Code and Rules of the Department of Financial Services described under Count I, paragraphs (a) through (i) above, which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent. COUNT IV 23. Paragraphs one through seven are realleged and incorporated herein by reference, 24. Gayle E. Powers purchased an American Medical health insurance policy from Irwin in December, 2002, giving him a premium check in the amount of $227.85 made payable to American Medical Services. 25, Irwin took the check and deposited all or part of it to the benefit of his own account thus leaving Ms. Powers without the health insurance she thought she had purchased. 26. Asa direct result of your failure to not only properly supervise Irwin, but essentially allowing him, and providing him with the means, to misappropriate insurance premiums, you, DAVID ARTHUR FLEISHCHER, exposed Ms. Powers to a period of having no health insurance coverage. IT IS THEREFORE CHARGED that you, DAVID ARTHUR FLEISCHER, have violated or are accountable under those provisions of the Florida Insurance Code and Rules of the Department of Financial Services described under Count I, paragraphs (a) through (i) above, which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent. COUNT V 27. Paragraphs one through seven are realleged and incorporated herein by reference. 28. In 2002 Dorethea Ann Kelsey was the owner of Stain Busters Carpet Cleaning. In December, 2002, Ms. Kelsey dealt with various individuals at the agency, including you, DAVID ARTHUR FLEISCHER, your wife Nora and another individual who appeared to be an insurance agent and is believed to be Bill Irwin, 29, In December, 2002, Ms. Kelsey presented the agency with two checks in the amounts of $484.90 and $487.00 drawn on her business account made payable to Medical Savings health Plan for the purpose of purchasing health insurance. 30. Irwin took the checks and deposited all or part of them to the benefit of his own account thus leaving Ms. Kelsey without the health insurance she thought she had purchased. 31. Asa direct result of your failure to not only properly supervise Irwin, but essentially allowing him, and providing him with the means, to misappropriate insurance premiums, you, DAVID ARTHUR FLEISCHER, exposed Ms. Kelsey to a period of having no health insurance coverage. IT IS THEREFORE CHARGED that you, DAVID ARTHUR FLEISCHER, have violated or are accountable under those provisions of the Florida Insurance Code and Rules of the Department of Financial Services described under Count I, paragraphs (a) through (i) above, which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent. COUNT VI 32. Paragraphs one through seven are realleged and incorporated herein by reference, 33. In 2002 David W. Alger of Whitman Designs, Inc., gave Bill Irwin a check for 5352.90 made payable to Medical Savings Health Plan for the purpose of making a premium payment toward one Barbar LaPolt’s medical insurance coverage. 34. Irwin took the checks and deposited all or part of them to the benefit of his own account thus leaving Ms. LaPolt without the health insurance she thought had been purchased by Mr. Alger. Later the bank on which the check was drawn, refunded Mr. Alger the sum of $352.90. 35. Asa direct result of your failure to not only properly supervise Irwin, but essentially allowing him, and providing him with the means, to misappropriate insurance premiums, you, DAVID ARTHUR FLEISCHER, exposed Ms. LaPolt to a period of having no health insurance coverage. IT IS THEREFORE CHARGED that you, DAVID ARTHUR F LEISCHER, have violated or are accountable under those provisions of the Florida Insurance Code and Rules of the Department of Financial Services described under Count I, paragraphs (a) through (i) above, which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent, COUNT VII 36. Paragraphs one through seven are realleged and incorporated herein by reference. 37. In December, 2002 John Stanley gave Bill Irwin a check for $468.90 made payable to Medical Savings Health Plan for the purpose of making a premium payment on medical insurance coverage. 38. Irwin took the check and deposited all or part of it to the benefit of his own account thus leaving Mr, Stanley without the health insurance he thought he had been purchased. Later the bank on which the check was drawn, refunded Mr. Alger the sum of $352.90, 39. As adirect result of your failure to not only properly supervise Irwin, but essentially allowing him, and providing him with the means, to misappropriate insurance premiums, you, DAVID ARTHUR FLEISCHER, exposed Mr. Stanley to a period of having no health insurance coverage. IT IS THEREFORE CHARGED that you, DAVID ARTHUR FLEISCHER, have violated or are accountable under those provisions of the Florida Insurance Code and Rules of the Department of Financial Services described under Count I, paragraphs (a) through (i) above, . which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent. COUNT VOI 40. Paragraphs one through seven are realleged and incorporated herein by reference. 41, In January, 2003 Jan Cancilla was the owner of Jan Cancilla Interiors, Inc. On January 15, 2003, Ms. Cancilla presented the agency with a check in the amount of $401.00 drawn on her business account made payable to the agency for the purpose of purchasing health insurance. 42. Irwin took the check and deposited all or part of it the benefit of his own account thus leaving Ms. Cancilla without the health insurance she thought she had purchased. 43. Asa direct result of your failure to not only properly supervise Irwin, but essentially allowing him, and providing him with the means, to misappropriate insurance premiums, you, DAVID ARTHUR FLEISCHER, exposed Ms. Cancilla to a period of having no health insurance coverage. 44. IT IS THEREFORE CHARGED that you, DAVID ARTHUR FLEISCHER, have violated or are accountable under those provisions of the Florida Insurance Code and Rules of the Department of Financial Services described under Count I, paragraphs (a) through (i) above, which constitute grounds for the suspension or revocation of your licenses and appointments as a life and health insurance agent. 10 WHEREFORE, you, DAVID ARTHUR FLEIS CHER, are hereby notified that the Chief Financial Officer of the State of Florida, intends to enter an Order suspending or revoking your licenses and appointments as an insurance agent or to impose such penalties as may be provided under the provisions of Sections 626.611, 626.621, 626.681, 626.691, 626.692, and 626.9521, Florida Statutes, and under the other referenced sections of the Florida Statutes as set out in this Administrative Complaint. You are further notified that any order entered in this case revoking or suspending any license or eligibility for licensure held by you shall also apply to all other licenses and eligibility held by you under the Florida Insurance Code. NOTICE OF RIGHTS You have the right to request a proceeding to contest this action by the Department pursuant to sections 120.569 and 120.57, Florida Statutes, and Rule 28-107, Florida Administrative Code. The proceeding request must be in writing, signed by you, and must be filed with the Department within twenty-one (21) days of your receipt of this notice. Completion of the attached Election of Proceeding form and/or a petition for administrative hearing will suffice as a written request. The request must be filed with the General Counsel as acting Agency Clerk, at the Florida Department of 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. 11 If you request a proceeding, you must provide information that complies with the requirements of Rule 28-107.004, Florida Administrative Code. As noted above, completion of the attached Election of Proceeding form conforms to these requirements. Specifically, your response must contain: (a) The name and address of the party making the request, for purpose of service; (b) A statement that the party is requesting a hearing involving disputed issues of material fact, or a hearing not involving disputed issues of material fact; and (c) A reference to the notice, order to show cause, administrative complaint, or other communication that the party has received from the agency. Ifa 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. Ifa proceeding is requested and there is no dispute of material fact, the provisions of section 120.57(2), Florida Statutes, apply. In this regard, you may submit oral or written evidence in opposition to the action taken by the Department or a written statement challenging the grounds upon which the Department has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary, one will be conducted in Tallahassee, Florida, or by telephonic conference call upon your request. However, if you dispute material facts, which are the basis for the Department’s action, you must request an adversarial proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes. These proceedings are held before a State administrative law judge of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request that the hearing be conducted in Tallahassee, Florida. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior oral communication or correspondence in this matter shall be considered freeform agency action, and no such oral communication or correspondence shall operate as a valid request for an administrative proceeding. Any request for an administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. Mediation of this matter pursuant to section 120.573, Florida Statutes, is not available. No Department attorney will discuss this matter with you until the response has been received by the Department of Financial Services. DATED and SIGNED this_ 4" — day of ft09 tus Zz , 2006. j I IN CHANDLER Deputy Chief Financial Officer 13 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and ELECTION OF PROCEEDINGS have been furnished to: DAVID ARTHUR FLEISCHER, 1022 SE 30" Street, Naples, Florida 33904-3929; DAVID ARTHUR FLEISCHER, Daveco & Associates Insurance Marketing, Inc., 247 South Airport Road, Naples, FL 34104 by U. S. Certified Mail this 4/7"Uay of Aug us , 2006. ~ « DAVID J. BUSCH, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Phone: (850) 413-4146 Fax: (850) 487-4907 14

Docket for Case No: 06-003321PL