FILED" a; , ay oF FINANCIAL OFFICE : 8 Diy Slop HETATE OF FLORIDAT SEP 2 2007 jes sah rat INGs ‘E OGoreted'ny:, IN THE MATTER OF: 671-4870 PL CASE NO. 88472-07-AG MARC STEPHEN CAPLAN ADMINISTRATIVE COMPLAINT TO: MARC STEPHEN CAPLAN 9402 Hunters Pond Drive Tampa, Florida 33647 You, MARC STEPHEN CAPLAN, are hereby notified that pursuant to Chapter 626, ’ Florida Statutes, 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. You, MARC STEPHEN CAPLAN, are currently licensed in the state as a life including variable annuity agent; life insurance agent; health insurance agent and legal expense insurance agent. 2. At all times pertinent to the dates and occurrences referred to in this ’ Administrative Complaint you, MARC STEPHEN CAPLAN, were licensed as an insurance agent in this state. 3. Pursuant to Chapter 626, Florida Statutes, the Chief Financial Officer of the State of Florida and the Department of Financial Services has jurisdiction over your insurance licenses and your eligibility for licensure and appointment. COUNT I 4, The above General Allegations numbered one through three are hereby realleged and fully incorporated herein by reference. 5. On or about March, 2004, you, MARC STEPHEN CAPLAN, solicited C.N. of Winter Garden, Florida, to purchase an annuity. “6. As an elderly widow of modest means, C.N.’s sole concern about her retirement assets were safety, interest income to help pay living expenses, and easy and penalty free access in the:event of emergencies or other special situations, TD On or about March, 2004, you, MARC STEPHEN CAPLAN. , willfully induced C.N. to utilize $145,000 in retirement funds to purchase an American Investors Life equity deferred index annuity (hereinafter “annuity”). 8. In the process of inducing the sale and purchase of the annuity, you, MARC STEPHEN CAPLAN, willfully misrepresented and/or omitted material information regarding the nature and sale of the annuity. The misrepresentations, both by omission and commission, include, . but are not limited to, the following: (a) that C_N. would receive a monthly interest income check. In fact, C.N. does not receive any monthly interest income checks from the annuity; (6) that the annuity would pay an interest yield of 11%. In fact, the annuity does not pay an 11% interest rate. Rather, the annuity’s performance is tied to the stock market and it has 2 a CAP interest rate no higher than 11%, meaning that if the stock market index rises more than 11%, the annuity return will not exceed, will be capped, at 11%; (c) that C.N. will be assessed a surrender fee of up to 17% for 13 years if she withdraws any funds from the annuity; (d) that the annuity performance is tied to the direction and performance of the stock market; 9. The misrepresentations and omissions, made by you, MARC STEPHEN CAPLAN, described herein were false and material misstatements of fact. You, MARC STEPHEN CAPLAN, . were fully aware of these facts. vat 10, The conduct and actions describe herein constitute unfair and deceptive acts or practices in violation of Section 626.9541, Florida Statutes. ave 11. The annuity provides a 20 day “free look” period as required by Florida law. However, you MARC STEPHEN CAPLAN, failed to disclose this fact to C.N. and failed to instruct C.N. ‘that she only had a certain amount of time to cancel the policy without penalty. The twenty day period had long expired before the annuity was delivered and C.N. discovered the misrepresentations and omissions concerning the annuity. 12. CN. justifiably relied on the representations and information conveyed to them by you, MARC STEPHEN CAPLAN concerning the annuity. The annuity would not have been purchased but for these representations. . 13. The sale of the of the annuity to C.N. was not in her best interest, was neither * necessary nor appropriate for a person of her age and financial circumstance as she had no desire or need to restrict access to her retirement funds in such a fashion, was without demonstrable benefit, and was done for the sole purpose of obtaining a fee, commission, money or other benefit from an insurance company. As a result, C.N. has suffered financial harm. IT IS THEREFORE CHARGED that you, MARC STEPHEN CAPLAN, have violated or are accountable under the following provisions of the Florida Insurance Code which constitute grounds for the suspension or revocation of your licenses as an insurance agent in the state: (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 626.611(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 . appgintment. [Section 626.611(9), Florida Statutes]; . (qd) Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of the Insurance Code. [Section 626.611(13), 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) In the conduct of business under the license or appointment, engaging in unfair methods of competition or unfair or deceptive acts or practices, as prohibited by part IX of this chapter. [Section 626.621(6), Florida Statutes]; (g) Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison, which misrepresents the benefits, advantages, conditions, or terms of any insurance policy. [Section 626.9541(1)(a) 1, Florida Statutes]; (h) Knowingly: a. Filing with any supervisory or other public official, b. Making, publishing, disseminating, circulating, c. Delivering to any person, d. Placing before the public, e. Causing, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement. [Section 626:9541(1)(e) 1, Florida Statutes]. COUNT TI 14. The above General Allegations numbered one through three are hereby tealleged and fully incorporated herein by reference. 15. On or about March, 2005, you, MARC STEPHEN CAPLAN, solicited D.B. of Ormond Beach, Florida, to purchase an annuity. 16. As an elderly widow of modest means, D.B.’.s sole concern about her retirement assets were safety, interest income to help pay living expenses, and easy and penalty free access in the event of emergencies or other special situations. 17. On or about March, 2005, you, MARC STEPHEN CAPLAN, willfully induced D.B. to utilize $112,276 in retirement funds to purchase an American Investors Life equity deferred index annuity (hereinafter “annuity”). 18. In the process of inducing the sale and purchase of the annuity, you, MARC STEPHEN CAPLAN, willfully misrepresented and/or omitted material information regarding the nature and sale of the annuity. The misrepresentations, both by omission and commission, include, but are not limited to, the following: (a) that D.B. would receive a monthly interest income check. In fact, C.N. does not receive any monthly interest income checks from the annuity. (b) that D.B. will be assessed a surrender fee of up to 17% for 13 years if she withdraws any funds from the annuity. (c) that the annuity performance is tied to the direction and performance of the stock market. i 19. The misrepresentations and omissions, made by you, MARC STEPHEN CAPLAN, described herein were false and material misstatements of fact. You, MARC STEPHEN CAPLAN, were fully aware of these facts. » 20. The conduct and actions describe herein constitute unfair and deceptive acts or practices in violation of Section 626.9541, Florida Statutes. 21. ‘The annuity provides a 20 day “free look” period as required by Florida law. However, you MARC STEPHEN CAPLAN, failed to disclose this fact to D.B. and failed to instruct D.B. that she only had a certain amount of time to cancel the policy without penalty. The twenty day period had long expired before the annuity was delivered and D.B. discovered the misrepresentations and omissions conceming the annuity. 22, —_‘D.B. justifiably relied on the representations and information conveyed to them by you, MARC STEPHEN CAPLAN concerning the anmuity. The annuity would not have been purchased but for these representations. 23. The sale of the of the annuity to D.B. was not in her best interest, was neither necessary nor appropriate for a person of her age and financial circumstance as she had no desire or need to restrict access to her retirement funds in such a fashion, was without demonstrable benefit, and was done for the sole purpose of obtaining a fee, commission, money or other benefit from an insurance company. As aresult, D.B. has suffered financial harm. IT IS THEREFORE CHARGED that you, MARC STEPHEN CAPLAN, have violated or are accountable under the following provisions of the Florida Insurance Code which constitute grounds for the suspension or revocation of your licenses as an insurance agent in the state: Sections 626.611(5); 626.611(7); 626.611(9); 626.611(13); 626.611(6), 626.621(2); * 626.621(6); 626.9541(1)(a)1; and 626.9541(1)(e)1, Florida Statutes as more particularly alleged in count I above. COUNT III ; 24, The above General Allegations numbered one through three are hereby realleged and filly incorporated herein by reference. . 25. On or about March, 2003, you, MARC STEPHEN CAPLAN, solicited B.F.H. of North Ft. Myers, to purchase an annuity. 26. As an elderly widow of modest means, B.F.H.’s sole concern about her retirement asseis were safety, interest income to help pay living expenses, and easy and penalty free access in the event of emergencies or other special situations. 27. On or about March, 2005, you, MARC STEPHEN CAPLAN, willfully induced B.F.H. to utilize $80,000 in retirement funds to purchase a National Western Life deferred index annuity (hereinafter “annuity”). 28. In the process of inducing the sale and purchase of the annuity, you, MARC STEPHEN CAPLAN, willfully misrepresented and/or omitted material information regarding the nature and sale of the annuity. The misrepresentations, both by omission and commission, include, but are not limited to, the following: (a) that B-F.H. would receive a $500 monthly interest income check. In fact, B.F.H. does not receive any monthly interest income checks from the annuity and is ineligible to receive any such payout until five years has elapsed. (b) that B.F.H. will be assessed a surrender fee of up to 25% for 15 years if she withdraws any funds from the annuity. 29, The misrepresentations and omissions, made by you, MARC STEPHEN CAPLAN, described herein were false and material misstatements of fact. You, MARC STEPHEN CAPLAN, - were;fully aware of these facts, . ., 30. The conduct and actions describe herein constitute unfair and deceptive acts or practices in violation of Section 626.9541, Florida Statutes, 31. The annuity provides a 20 day “free look” period as required by Florida law. However, you MARC STEPHEN CAPLAN, failed to disclose this fact to B.F.H. and failed to instruct B.F.H. that they only had a certain amount of time to cancel the policy without penalty. The twenty day period had long expired before the annuity was delivered and B.F.H. discovered the misrepresentations and omissions concerning the annuity. 32. _B.F.H. justifiably relied on the representations and information conveyed to them by you, MARC STEPHEN CAPLAN concerning the annuity. The annuity would not have been purchased but for these representations. 33. The sale of the of the annuity to B.F.H. was not in her best interest, was neither necessary nor appropriate for a person of her age and financial circumstance as she had no desire or need to restrict access to her retirement funds in such a fashion, was without demonstrable benefit, and was done for the sole purpose of obtaining a fee, commission, money or other benefit from an insurance company. As aresult, B.F.H. has suffered financial harm. . IT IS THEREFORE CHARGED that you, MARC STEPHEN CAPLAN, have violated or are accountable under the following provisions of the Florida Insurance Code which constitute grounds for the suspension or revocation of your licenses as an insurance agent in the state: Sections 626.611(5); 626.611(7); 626.611(9); 626.611(13); 626.611(6), 626.621(2); 626.621(6); 626.9541(1)(a)1; and 626.9541(1)(e)1, Florida Statutes as more particularly alleged in Count Tabove. Hy _WHEREFORE, you, MARC STEPHEN CAPLAN, are hereby notified that the Chief Financial Officer intends to enter an Order suspending or revoking your licenses, appointments and your eligibility for licensure as an insurance agent in this state 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 of ’ Financial Services ("Department") pursuant to Sections 120.569 and 120.57, Florida Statutes, and Rule 28-106, Florida Administrative Code. The proceeding request must be in writing, 9 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 acting as 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 SUSPENSION OR REVOCATION WILL BE ENTERED AGAINST YOU. 7 Le If you request a proceeding, you must provide information that complies with the requirements of Rule 28-106.2015, 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, address, and telephone number, and facsimile number (if any) of the respondent (for the purpose of requesting a hearing in this matter, you are the "respondent"). (b) The name, address, telephone number, facsimile number of the attorney or qualified representative of the respondent (if any) upon whom service of pleadings and other papers shall be made. (c) A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. (d) A statement of when the respondent received notice of the administrative complaint. . (e) "A statement including the file number to the administrative complaint. 10 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 Adriinistrative 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. 11 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. DATED and SIGNED this 7" dayor__& eptember, 2007. IN CHANDLER Deputy Chief Financial Officer 12 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing Administrative Complaint was mailed by certified mail to: MARC STEPHEN CAPLAN, 9402 Hunters Pond Drive, Tampa, Florida 33647 on this day of ; 2007. Division of Legal Services 612 Larson Building Tallahassee, FL 32399-0333 (850) 413-4124 13

Docket for Case No: 07-004570PL