: j JUN TE 7 2015 CHIEF FINANCIAL OFFICER Docketed by EL JEFF ATWATER STATE OF FLORIDA IN THE MATTER OF: CASE NO: 160776-14-AG DARELY CARIDAD GUTIERREZ / ADMINISTRATIVE COMPLAINT TO: — Darely Caridad Gutierrez 12530 SW 8" Street Miami, Florida 33184 Darely Caridad Gutierrez 16542 SW 64" Terrace Miami, Florida 33193 DARELY CARIDAD GUTIERREZ is hereby notified that pursuant to chapter 626, Florida Statutes, the Chief Financial Officer of the State of Florida, has made an investigation of his activities while licensed as an insurance agent in this state, as a result of which it is alleged: GENERAL ALLEGATIONS 1. Darely Caridad Gutierrez is currently licensed in this state as a general lines insurance agent. 2, At all times pertinent herein, Darely Caridad Gutierrez was eligible for licensure and licensed as an insurance agent in this state. 3. At all times pertinent herein, Darely Caridad Gutierrez was the agent of record of Insurance Consultants of Dade, Inc., a Florida incorporated insurance agency doing business in Miami-Dade County, Florida. () C) 4. At all times pertinent herein, and pursuant to section 626.561(1), Florida Statutes, all funds received by Darely Caridad Gutierrez 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 5. Paragraphs one through four are realleged and incorporated herein by reference. 6. In early February 2011, Darely Caridad Gutierrez was solicited by Key International, Inc., a Florida corporation doing business in Miami, Florida, to provide a premium quote for a property insurance policy, a general liability insurance policy and an excess liability (umbrella) insurance policy for the corporation. To this end, Darely Caridad Gutierrez obtained a quote from USG Insurance Services, Inc. to insure Key International, Inc. for the premium amount of $43,801.83, However, Darely Caridad Gutierrez falsely misrepresented this quoted premium to Key International, Inc. as being $46,980.17 rather than $43,801.83. This quote was false and a material misstatement of fact. Darely Caridad Gutierrez was aware of this fact. 7. On or about February 25, 2011, Darely Caridad Gutierrez received a check in the amount of $18,500.00 drawn on the account of Key International Inc. On March 24, 2011, Darely Caridad Gutierrez received a second check in the amount of $14,240.09 drawn on the account of Key International, Inc. On April 24, 2011, Darely Caridad Gutierrez did receive a third and final check in the amount of $14,240.08 drawn on the account of Key International, Inc. These three checks in the total amount of $46,980.17 were intended to be in payment of Key International, Inc’s policy insurance premiums as had been represented. Darely Caridad Gutierrez received the funds and deposited the funds into the agency business bank account. () — a 8. Darely Caridad Gutierrez failed to remit the entire funds on behalf of Key International, Inc. to any insurer or to anyone else so entitled; but only remitted $6,517.00 in payment of one policy premium to the insurer and retained the remaining amount of $40,363.00 for her own use and benefit. 9. On April 26, 2011, Darely Caridad Gutierrez entered into a fraudulent premium finance agreement with Standard Premium Finance to finance the premiums of two of the above mentioned insurance policies (the property insurance policy and the general liability insurance policy) over a one year period, with the false signature of a Key International, Inc.’s corporate officer fraudulently affixed thereto, At no time did Key International, Inc. have any knowledge of this premium finance agreement nor did it authorize the financing of the insurance policy premiums. This premium finance agreement was a false and material misstatement of fact and was entered into solely to allow Darely Caridad Gutierrez to utilize the premium funds over the policy period for other than its intended purpose. Darely Caridad Gutierrez was aware at all times of this false and material misstatement of facts. 10. Darely Caridad Gutierrez failed to return the funds to Key International, Inc. or otherwise account for such funds despite demand being made for same. 11. Darely Caridad Gutierrez has misappropriated, converted, or wrongfully withheld moneys belonging to Key International, Inc. As a result, Key International Inc. has suffered a significant financial loss. . IT IS THEREFORE CHARGED that Darely Caridad Gutierrez has violated or is accountable under the following provisions of the Florida Insurance Code which constitutes grounds for the suspension or revocation of his insurance licenses and eligibility for licensure: () C) (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 626.611(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(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. (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 tule of the department or willfully violate any provision of this code. (e) Section 626.621(6), Florida Statutes, which provides that it is a violation, 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. - 0 “~ SY (f) Section 626.9541(1)(a)1, Florida Statutes, which provides that it is a violation 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. (g) Section 626.9541(1)(e) 1, Florida Statutes, which provides that it is a violation to knowingly: a. File with any supervisory or other public official, b. Make, publish, disseminate, ’ circulate, c. Deliver to any person, d. Place before the public, e. Cause, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement. COUNT II 12. Paragraphs one through four are realleged and incorporated herein by reference. 13. In early February 2012, Darely Caridad Gutierrez was solicited by Key International, Inc., a Florida corporation doing business in Miami, Florida, to provide a renewal premium quote for the three business property and liability policies for the corporation, previously mentioned in Count I above. To this end, Darely Caridad Gutierrez obtained a quote from USG Insurance Services, Inc. to insure Key International, Inc. for the premium amount of $41,870.19. However, Darely Caridad Gutierrez falsely misrepresented this quoted premium to Key International, Inc. as being $53,228.00 rather than $41,870.19. This quote was false and a material misstatement of fact. 14, On or about February 1, 2012, Darely Caridad Gutierrez received a check in the amount of $53,228.00 drawn on Key International Inc.’s escrow account with Wells Fargo Bank. This check in the total amount of $53,228.00 was intended to be in payment of Key International, () | C) Inc.’s policy insurance premiums. Darely Caridad Gutierrez received the funds and deposited the funds into the agency business bank account. 15. Darely Caridad Gutierrez failed to remit the entire funds on behalf of Key International, Inc. to any insurer or to anyone else so entitled; but retained the total amount of $53,228.00 for her own use and benefit. 16. On April 26, 2011, Darely Caridad Gutierrez entered into a fraudulent premium finance agreement with Standard Premium Finance to finance the premiums of the three insurance policies mentioned in Count I above in the total amount of $41,870.00 over a one year period with the false signature of a Key International, Inc.’s corporate officer fraudulently affixed thereto. At no time did Key International, Inc. have any knowledge of this premium finance agreement nor did it authorize the financing of the insurance policy premiums. This premium finance agreement was a false and material misstatement of fact and was entered into solely to allow Darely Caridad Gutierrez to utilize the premium funds over the policy period for other than its intended purpose. Darely Caridad Gutierrez was: aware at all times of this false and material misstatement of facts, 17. Darely Caridad Gutierrez has misappropriated, converted, or wrongfully withheld moneys belonging to Key International, Inc. As a result, Key International Inc. suffered a significant financial loss. IT IS THEREFORE CHARGED that Darely Caridad Gutierrez has violated or is accountable under the following provisions of the Florida Insurance Code which constitutes grounds for the suspension or revocation of his insurance licenses and eligibility for licensure: sections 626.561; 626.611(7)(10)(13); 626.621(6); 626.9541(1)(a)l and (1)(e)(1), Florida Statutes as more particularly alleged in Count I above. oN ne 7 C) COUNT Il 18. Paragraphs one through four are realleged and incorporated herein by reference. 19. In early February 2013, Darely Caridad Gutierrez was solicited by Key International, Inc., a Florida corporation doing business in Miami, Florida to provide a renewal premium quote for the three business property and liability policies mentioned in Count I above for the corporation. To this end, Darely Caridad Gutierrez obtained a quote from USG Insurance Services, Inc. to insure Key International, Inc. for the premium amount of $46,021.99. However, Darely Caridad Gutierrez falsely misrepresented this quoted premium to Key International, Inc. as being $66,936.14 rather than $46,021.99. This quote was false and a material misstatement of fact. 20. On or about February 1, 2013, Darely Caridad Gutierrez received a check in the amount of $66,936.14 drawn on Key International Inc.’s escrow account with Wells Fargo Bank. This check in the total amount of $66,936.14 was intended to be in payment of Key International, Inc.’s policy insurance premiums. Darely Caridad Gutierrez received the funds and deposited the funds into the agency business bank account. 21. Darely Caridad Gutierrez failed to remit the entire funds on behalf of Key International, Inc, to any insurer or to anyone else so entitled, but retained the total amount of $66,936.00 for her own use and benefit 22. On April 30, 2013, Darely Caridad Gutierrez entered into a fraudulent premium finance agreement with Standard Premium Finance to finance the premiums of the three of above mentioned insurance policies in the total amount of $41,870.00 over a one year period with the false signature of a Key International, Inc.’s corporate officer fraudulently affixed thereto. At no time did Key International, Inc have any knowledge of this premium finance agreement nor did it C) () authorize the financing of the insurance policy premiums. This premium finance agreement was a false and material misstatement of fact and was entered into solely to allow Darely Caridad Gutierrez to utilize the premium funds over the policy period for other than its intended purpose. Darely Caridad Gutierrez was aware at all times of this false and material misstatement of facts. 23. Darely Caridad Gutierrez has misappropriated, converted, or wrongfully withheld moneys belonging to Key International, Inc. As a result, Key International Inc. suffered a significant financial loss. IT IS THEREFORE CHARGED that Darely Caridad Gutierrez has violated or is accountable under the following provisions of the Florida Insurance Code which constitutes grounds for the suspension or revocation of his insurance licenses and eligibility for licensure: sections 626.561; 626.611(7)(10)(13); 626.621(6); 626.9541(1)(a)l and (1)(e)(1), Florida Statutes as more particularly alleged in Count I above. C) C) WHEREFORE, DARELY CARIDAD GUTIERREZ is 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. cath “Tv DATED and SIGNED this _1T* day of I UAe , 2015. a SS Gregory Thomas, Director Agent and Agency Services C) C) 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 chapter 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 a petition for administrative hearing are required. 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. FAILURE TO ENSURE THAT YOUR WRITTEN RESPONSE IS RECEIVED BY THE DEPARTMENT 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 A FINAL 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, Specifically, your response must contain: (a) The name, address, 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, and facsimile number of the attorney or qualified representative of the respondent (if any) upon whom service of pleadings and other papers shall be made. 10 C) C) (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. (c) A statement including the file number of the administrative complaint. 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. 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 an administrative law judge of the State of Florida 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 free form agency action, and no such oral communication or correspondence 11 C) () shall operate as a valid request for an administrative. proceeding. Any request for an administrative proceeding received before 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 during the time frame in which you have to request a hearing. () () 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 Electronic Mail and/or Certified Mail to Darely Caridad Gutierrez, 12530 SW 8" Street, Miami, Florida 33184 and 16542 SW 64" Terrace, Miami, Florida 33193 on this | 1*" day of “Svne- 2015. ames A. Bossart, Esquire ivision of Legal Services Y Larson Building Tallahassee, Florida 32399-0333 (850) 413-4124 ay 2199 441 7042 Pib? W586 &5 ay 799 FIL 7032 2ub? Th 13

Docket for Case No: 15-004259PL