Pe 205 NOV 17 A He 38 OCT 9 2009 CHIEF FINANCIAL OFFICER OIVISIGN O STATE OF FLORIDA aul VasiUA ~ OES eotated by ZU IN THE MATTER OF: D4 ADL IVAN MESSER CASE NO. 104343-09-AG ADMINISTRATIVE COMPLAINT TO: IVAN MESSER 6454 NW 93” Drive Parkland, FL 33067 You, IVAN MESSER, 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, IVAN MESSER, are currently licensed in the state as a life including variable annuity agent; a life including variable annuity and health agent; a life and health insurance agent; a life insurance agent; and a life and health insurance agent. 2. At all times pertinent to the dates and occurrences referred to in this Administrative Complaint you, IVAN MESSER, 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 January 2005, you, IVAN MESSER, solicited R.D. of Boca Raton, Florida to purchase an annuity. 6. As of January 2005, R.D. had approximately $169,000.00 in retirement assets invested in four annuities previously issued by ING, GE, Scudder Insurance, and TransAmerica. 7. In or about January 2005, you, IVAN MESSER, willfully induced R.D. to surrender the four above mentioned annuities that she already owned and utilize the contract values, totaling approximately $169,000.00, to purchase an Allianz deferred index annuity (hereinafter “annuity”). 8. In the process of inducing the sale and purchase of the annuity, you, IVAN MESSER, 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) You, IVAN MESSER, failed to disclose to R.D. that the four annuities that you induced R.D. to surrender in order to purchase the Allianz annuity could have been cashed in at any time without incurring any surrender charges or penalties. However, the Allianz annuity you induced R.D. to purchase could not be cashed in without incurring a 13.5% surrender penalty. R.D. would not have entered into this transaction if she had been fully informed of these facts. You, IVAN MESSER, were aware or should have been aware of this failure to disclose. (b) You, IVAN MESSER, failed to disclose to R.D. that she could only withdraw a sum equal to 10% of her premium once a year and cumulative withdrawals cannot exceed 25% of the premium in total prior to its annuitization without the assessment of a 13.5% 2 surrender penalty. You, IVAN MESSER, were aware or should have been aware of this failure to disclose. (c) R.D. stated she wanted to receive a regular and immediate return to supplement her retirement income, without resulting in any reduction of her principal. You, IVAN MESSER, were aware of this fact. You, IVAN MESSER, represented to R.D. that the Allianz annuity would pay out an approximate 9% to 10% annual return that would enable her to meet her annual living expenses without invading her principal. In point of fact, R.D.’s Allianz annuity could not pay out a regular return on principal (referred to in the annuity as a “systemic withdrawal of credit”) until at least the fifth year of the policy. You, IVAN MESSER, failed to disclose these material facts. You, IVAN MESSER, were aware or should have been aware of this failure to disclose. 9. The misrepresentations and omissions made by you, IVAN MESSER, described herein were false and material misstatements of fact. You, IVAN MESSER, were fully aware of these facts. 10. The conduct and actions describe herein constitute unfair and deceptive acts or practices in violation of Section 626.9541, Florida Statutes. 11. RD. justifiably relied on the representations and information conveyed to her by you, IVAN MESSER, concerning the annuity. The annuity would not have been purchased but for these representations. 12. The sale of the of the annuity to RD. 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. 13. You, IVAN MESSER, have violated a public trust in violation of Rule 69B- 215.210, Florida Administrative Code which provides: The Business of Life Insurance is hereby declared to be a public trust in which service all agents of all companies have a common obligation to work together in serving the best interests of the insuring public, by understanding and observing the laws governing Life Insurance in letter and in spirit by presenting accurately and completely every fact essential to a client’s decision, and by being fair in all relations with colleagues and competitors always placing the policyholder’s interests first. 14. As aresult, R.D. has suffered financial harm. In addition, R.D. could not access her retirement assets held in the annuity for housing or health care costs or general living expenses for the first ten years of the annuity above the permitted 25% ithdrawal without incurring substantial surrender charges. IT IS THEREFORE CHARGED that you, IVAN MESSER, 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) Wiliful 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]; 4 (d) 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]; () 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]. WHEREFORE, you, IVAN MESSER, are hereby notified that the Chief Financial Officer intends to enter an Order suspending or revoking your licenses, appointments and your 5 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 ail 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, 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. 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. 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. 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_4 day of October , 2009. TAMMY TE§TON Deputy Chief Financial Officer CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Administrative . Complaint has been furnished by U.S. Certified Mail to: IVAN MESSER at 6454 NW 93" Drive Parkland, FL 33067 onthis CT" day of _OC4ober 2009. 612 Larson Building Tallahassee, FL 32399-0333 (850) 413-4124

Docket for Case No: 09-006350PL