FILED REPRESENTING JUN 2 5 2010 ALEX SINK CHIEF FINANCIAL OFFICER Su STATE OF FLORIDA Docketed by IN THE MATTER OF: CASE NO. 109447-10-AG MARK ALLEN FITZMORRIS ADMINISTRATIVE COMPLAINT TO: MARK ALLEN FITZMORRIS 100 Corbata Lane St. Augustine, FL 32095 MARK ALLEN FITZMORRIS 637 N. Lee Street Jacksonville, FL 32204 You, MARK ALLEN FITZMORRIS, 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, MARK ALLEN FITZMORRIS, are currently licensed in the state as a life including variable annuity insurance agent, life including variable annuity and health insurance agent, life and health insurance agent, and life insurance agent. 2. At all times pertinent to the dates and occurrences referred to in this Administrative Complaint you, MARK ALLEN FITZMORRIS, were licensed as an insurance agent in this state. Filed July 19, 2010 3:51 PM Division of Administrative Hearings. 3. At all times pertinent to the dates and occurrences referred to in. this Administrative Complaint you, MARK ALLEN FITZMORRIS, were the agent of record for CUSO Financial Services, Inc., a Florida licensed insurance agency, operating in conjunction with and on behalf of Community First Credit Union of Jacksonville, the approved credit union of the Duval County School Board. 4, 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 5. The above General Allegations numbered one through four are hereby realleged and fully incorporated herein by reference. 6. As of March, 2008, Lydia D. Wooden of Jacksonville, Florida had two ING annuities in effect with surrender values of $11,656.54 and $47, 217.22. These annuities had been purchased in 2002. 7. As an elderly retired teacher, age 78, of modest means, Lydia D, Wooden’s sole concern about her retirement assets were safety and capital preservation, interest income to help pay living expenses, and easy and penalty free access in the event of emergencies or other special situations. 8. On or about April 2, 2008, you, MARK ALLEN FITZMORRIS, fraudulently induced Lydia D. Wooden to surrender her above mentioned ING annuities and utilize the contract values to purchase two Sun Life Assurance Company annuities. You, MARK ALLEN FITZMORRIS, sold the annuities to Lydia D. Wooden without her full knowledge or informed consent. You, MARK ALLEN FITZMORRIS, were aware of this fact. 2 9. In the process of inducing the sale and purchase of the annuity, you, MARK ALLEN FITZMORRIS, willfully misrepresented and/or omitted material information regarding the nature and sale of the annuities. The misrepresentations, both by omission and commission, include, but are not limited to, the following: (a) You, MARK ALLEN FITZMORRIS, failed to disclose to Lydia D, Wooden that she was purchasing annuities with an initial 10% ten year surrender charge period. In contrast, the ING annuities had only a 3% surrender charge that was to have terminated in 2009, (b) You, MARK ALLEN FITZMORRIS, failed to disclose to Lydia D. Wooden that upon the surrender of her ING annuities, she was assessed the 3% surrender charge or $1,795.23. (c) You, MARK ALLEN FITZMORRIS, failed to disclose to Lydia D. Wooden the Sun Life annuity surrender penalties; specifically, that she could not withdraw any funds whatsoever without paying a surrender penalty of 10% for the first year of the policy and only gradually declining to 0% on a declining scale over ten years. (d) You, MARK ALLEN FITZMORRIS, failed to disclose to Lydia D. Wooden that she would not have any access to her funds until after the first policy year of the Sun Life annuities above and beyond the 10% free withdrawal without the assessment of a 10% sutrender charge. In contrast, the ING annuities allowed Lydia D. Wooden penalty free access to all of her funds. (e) You, MARK ALLEN FITZMORRIS, failed to disclose to Lydia D. Wooden that the Sun Life annuities accrued, interest at a guaranteed rate of only 1.14% annually, in contrast to the ING annuities which accrued interest at a guaranteed rate of 3% annually. 10. The misrepresentations and omissions, made by you, MARK ALLEN FITZMORRIS, described herein were false and material misstatements of fact. You, MARK ALLEN FITZMORRIS, were fully aware of these facts. 11. The conduct and actions describe herein constitute unfair and deceptive acts or practices in violation of Section 626.9541, Florida Statutes, 12, Lydia D. Wooden justifiably relied on the representations and information conveyed to her by you, MARK ALLEN FITZMORRIS, concerning the annuities, The annuities would not have been purchased but for these representations, 13. The sale of the of the Sun Life annuities to Lydia D. Wooden and the replacement of her ING annuities and the subsequent assessment of penalties 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. 14, You, MARK ALLEN FITZMORRIS, did not have any reasonable grounds for believing that your recommendation to purchase the Sun Life annuities was suitable for Lydia D, Wooden on the basis of the facts disclosed by Lydia D. Wooden as to her investments and as to her financial situation and needs at the time of purchase. 15, You, MARK ALLEN FITZMORRIS, 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 4 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. As a result, Lydia D, Wooden has suffered financial harm. IT IS THEREFORE CHARGED that you, MARK ALLEN FITZMORRIS, have violated or are accountable under the following provisions of the Florida Insurance Code which constitute grounds for the suspension or revocation of your license(s) or appointment(s) as an insurance agent in the state: (a) Section 626.611(5), Florida Statutes, which provides that it is a violation for any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent to, either in person or by any form of dissemination of information or advertising, willfully misrepresent any insurance policy or annuity contract, or willfully deceive with regard to such policy or contract. (b) Section 626.611(7), Florida Statutes, which provides that it is a violation for any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent to demonstrate a lack of fitness or trustworthiness to engage in the business of insurance, (c) Section 626.611(9), Florida Statutes, which provides that it is a violation for any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent to exhibit fraudulent or dishonest practices in the conduct of business under the license or appointment. (d) Section 626.611(13), Florida Statutes, which provides that it is a violation for any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent to willfully fail to comply with, or willfully violate, any proper order or rule of the department or any provision of this code. (e) Section 626.621(2), Florida Statutes, which provides that violating any provision of this Code or any law applicable to the business of insurance in the course of dealing under the licensure or appointment is, in itself, a violation of law. (f Section 626,621(6), Florida Statutes, which provides that it is a violation for any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent, in the conduct of business under the license or appointment, to engage in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part IX of this chapter, or otherwise show oneself to be a source of injury or loss to the public interest. (g) Section 626.9541(1)(a)1., Florida Statutes, which provides that it is an unfair method of competition and an unfair or deceptive act or practice, violative of Section 626.9521, Florida Statutes, to knowingly make, issue, circulate, or cause 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. (h) Section 626,9541(1)(e)L.a., Florida Statutes, which provides that it is an unfair method of competition and an unfair or deceptive act or practice, violative of Section 626.9521, Florida Statutes, to knowingly file with any supervisory or other public official any false material statement. (i) Section 626.9541(1)(), Florida Statutes, which provides that it is an unfair method of competition and an unfair or deceptive act or practice, violative of Section 626.9521, Florida Statutes, to knowingly making any misleading representation or incomplete or fraudulent 6 comparisons or fraudulent material omissions of or.with respect to any insurance policies or insurers for the purpose of inducing, or tending to induce, any person to lapse, forfeit, surrender, terminate, retain, pledge, assign, borrow on, or convert any insurance policy or to take out a policy of insurance with another insurer. : @) Section 627.4554(4)(a), Florida Statutes, which provides that when recommending to a senior consumer the purchase of an annuity or the exchange of an annuity that results in another insurance transaction or series of insurance transactions, an insurance agent, or an insurer if no insurance agent is involved, shall have reasonable grounds for believing that the recommendation is suitable for the senior consumer on the basis of the facts disclosed by the senior consumer as to his or her investments and other insurance products and as to his or her financial situation and needs. WHEREFORE, you, MARK ALLEN FITZMORRIS, 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, 7 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 Julie Jones, DFS Agency Clerk, at the Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. 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. 8 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 cal! 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 shali 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. n th DATED and SIGNED this 25° dayof__“Spne. , 2010, lt 7 Director, Aeon nd Agency Services CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing ADMINISTRATIVE COMPLAINT and ELECTION OF PROCEEDING has been furnished by Certified Mail to: MARK ALLEN FITZMORRIS, 100 Corbata Lane, St. Augustine, FL 32095 and 637 N. Lee sth Street, Jacksonville, FL 32204 onthis 25 day of Svne._,2010. 612 Larson Building Tallahassee, Florida 32399-0333 (850) 413-4124 10 STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES IN THE MATTER OF: MARK ALLEN FITZMORRIS CASE NO.: 109447-10-AG ELECTION OF PROCEEDING I have received and have read the Administrative Complaint filed by the Florida Department of Financial Services ("Department") against me, including the Notice of Rights contained therein, and I understand my options. I am requesting disposition of this matter as indicated below. (CHOOSE ONE) Lod I do not dispute any of the Department’s factual allegations and I do not desire a hearing. I understand that by waiving my right to a hearing, the Department may enter a final order that adopts the Administrative Complaint and imposes the sanctions sought, including suspending or revoking my licenses and appointments as may be appropriate, 2. I do not dispute any of the Department's factual allegations and I hereby elect a proceeding to be conducted in accordance with Section 120.57(2), Florida Statutes. In this regard, I desire to (CHOOSE ONE): t] Submit a written statement and documentary evidence in lieu of a hearing; or [] Personally attend a hearing conducted by a department hearing officer in Tallahassee; or [] Attend that same hearing by way of a telephone conference call. 3. [] I do dispute one or more of the Department's factual allegations. I hereby request a hearing pursuant to Section 120.57(1), Florida Statutes, to be held before the Division of Administrative Hearings. I have attached to this election form the information required by Rule 28-106.2015, Florida Administrative Code, as specified in subparagraph (c) of the Notice of Rights. Specifically, I have identified the disputed issues of material fact. TO PRESERVE YOUR RIGHT TO A HEARING, YOU MUST FILE YOUR RESPONSE WITH THE DEPARTMENT OF FINANCIAL SERVICES WITHIN TWENTY-ONE (21) DAYS OF YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT. THE RESPONSE MUST BE RECEIVED BY THE DEPARTMENT NO LATER THAN 5:00 P.M, ON THE TWENTY-FIRST DAY AFTER YOUR RECEIPT OF THE ADMINISTRATIVE COMPLAINT. The address for filing is: Julie Jones DFS Agency Clerk, Florida Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. Signature Print Name Date: Address: Date: Administrative Complaint Received: If you are represented by an attorney or qualified Phone No.: representative, please attach to this election form his or her name, address, telephone and fax numbers Fax Nou: 1]

Docket for Case No: 10-005863