FILED OCT 04 2010 REPRESENTING ALEX SINK : Ey cugrmmasucorns —Docketed by IN THE MATTER OF: oe CASE NO: 111943-10-AG MICHAEL CHARLES HEIMBACH / ADMINISTRATIVE COMPLAINT TO: MICHAEL CHARLES HEIMBACH 4120 Harbor Lake Drive Lutz, Florida 33558 MICHAEL CHARLES HEIMBACH 14502 Dale Mabry Ste. 200 Tampa, Florida 33618 You, MICHAEL CHARLES HEIMBACH, 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 that: GENERAL ALLEGATIONS 1. You, MICHAEL CHARLES HEIMBACH, are currently licensed in this state as a life and variable annuity agent; life, health and variable annuity agent; and health insurance agent. 2. At all times pertinent herein, you, MICHAEL CHARLES HEIMBACH, were eligible for licensure and licensed as an insurance agent in this state. Filed Nov 10, 2010 1:15 PM Division of Administrative Hearings : » * ) ) 3. At all times pertinent to the dates and occurrences referred to herein, and pursuant to Section 626.561(1), Florida Statutes, all funds received by you, CHARLES MICHAEL HEIMBACH, from insureds were trust funds received in a fiduciary capacity and were to be paid over to an insurer, insured, or other person entitled thereto in the regular course of business. COUNT I 4. Paragraphs one through three are realleged and incorporated herein by reference. 5. On or about January 10, 2007, you, CHARLES MICHAEL HEIMBACH, received $6,000.00 from Elba Zamboli of Tampa, Florida. This $6,000.00 was intended to be the initial premium payment for a fixed annuity. Elba Zamboli entrusted this $6,000.00 to you, CHARLES MICHAEL HEIMBACH, in your fiduciary capacity, for the express purpose of investing the funds into a fixed annuity. You, CHALES MICHAEL HEIMBACH, received the funds and deposited the funds into your business bank account. 6. You, CHARLES MICHAEL HEIMBACH, failed to remit the funds on behalf of Elba Zamboli to any: insurer or to anyone else so entitled and failed to return the funds to Elba Zamboli or otherwise account for such funds until April, 2008. 7. You, CHARLES MICHAEL HEIMBACH, have misappropriated, converted, or withheld moneys belonging to Elba Zamboli. As a result, Elba Zamboli failed to receive the requested annuity and has suffered a significant financial loss. 8. The foregoing findings constitute grounds for violation of several provisions of the Florida Insurance Code including, but not limited to the following: (a) Section 626.561, Florida Statutes, which provides that all premiums, return premiums, or other funds belonging to insurers, insureds, or others received by an agent under his license are trust funds received by the licensee in a fiduciary capacity. The licensee in the regular ) ) course of business shall account for and pay the same to the insurer, insured, or other person entitled thereto. | (b) Section 626.61 1(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 practicés in the conduct of business under the license or appointment. (d) Section 626.611(10), 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 misappropriate, convert, or unlawfully withhold moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license or appointment. (e) 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 willfully violate any provision of this code. WHEREFORE, you, MICHAEL CHARLES HEIMBACH, are hereby notified that the Chief Financial. Officer 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 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 Julie Jones, 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. 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 or__OCtoloer 2010. 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 MICHAEL CHARLES HEIMBACH, 4120 Harbor Lake Drive, Lutz, Florida 33558, MICHAEL CHARLES HEIMBACH, 14502 Dale Mabry Ste. 200, Tampa, Florida 33618 onthis "day of Octholoer | 2010. . “KK cv. JAMES A. BOSSART, ESQUIRE Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 (850) 413-4124 ees a, STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES DIVISION OF LEGAL SERVICES IN THE MATTER OF: MICHAEL CHARLES HEIMBACH CASE NO. 11943-10-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 J understand my options, I am requesting disposition of this matter as indicated below. (CHOOSE ONE) 1.) 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 J hereby elect a proceeding to be conducted in accordance with Section 120.57(2), Florida Statutes. In this regard, I desire to (CHOOSE ONE): | 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, | 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, 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 No.:

Docket for Case No: 10-010167PL