Findings Of Fact At all times relevant hereto, respondent, Toledo Realty, Inc. (TRI), was a corporation registered as a real estate broker having been issued license number 0133053 by petitioner, Department of Professional Regulation, Division of Real Estate (Division or petitioner). Respondent, Ramiro J. Alfert, holds real estate broker license number 0223005 also issued by petitioner. Alfert, who has been a broker for eleven years, was licensed and operating as a qualifying broker and officer for TRI when the events herein occurred. The firm is located at 7175 Southwest 8th Street, Suite 210, Miami, Florida. Approximately three years ago, the Federal National Mortgage Association (FNMA) began foreclosing on a number of residential properties on which the owners had defaulted. Wishing to dispose of these repossessed properties in an expedited manner, FNMA selected at random a number of brokers in the Miami area who were given exclusive listings and agreed to advertise the properties, and take such other steps as were necessary to make a quick sale. Futrell Realty (Futrell) in Kendall, Florida was one such broker, and it had the exclusive listing on the two properties relevant to this proceeding. According to established FNMA procedure, a broker who obtained an offer on a FNMA property was obliged to send the original contract to the listing broker who then mailed it to FNMA area headquarters in Atlanta, Georgia. Marie J. Pardo was a salesperson for TRI, having worked there for almost six years. Pardo represented two potential buyers, Lazara Rouco and Artemia Delgado, an unmarried couple, who were interested in purchasing a FNMA property at 794 Southwest 97th Court Circle, Miami. On March 19, 1986, Pardo prepared a purchase/sales contract on behalf of Rouco and Delgado in which the couple offered to buy the property for $65,000. A $4,000 deposit was given by Rouco to Pardo and then placed in TRI's trust account. In accordance with established procedure, the original contract was sent to Futrell which forwarded it by express mail to FNMA in Atlanta. Four days after the contract was executed, Pardo was advised by Rouco that she and her boyfriend had separated, and she could no longer afford such an expensive house. But by now, the offer had been accepted by FNMA, and Rouco's $4,000 deposit was at risk. In an effort to save Rouco's deposit, Pardo, with FNMA's approval, secured another buyer for the property, and had Rouco assign the contract to the new buyer. The house was thereafter sold by FNMA to the new purchaser on an undisclosed date. Pardo did not advise Alfert or other TRI personnel that this action had been taken. Knowing that Rouco still wished to buy a home, but one that was less expensive, Pardo obtained Rouco's agreement for TRI to retain the $4,000 deposit pending efforts to find another property. In June or July, Pardo located another FNMA property at 100 Southwest 110th Avenue, unit 138, Miami. Because Pardo considered Rouco to be a credit risk, Pardo decided to have Rouco prequalify for a loan before a formal contract was submitted to FNMA. Accordingly, Pardo obtained (presumably from TRI files) another FNMA contract executed on June 10, 1986, by three buyers (Julio Ugarto, and Patricia and Ernesto Duarte) on a different FNMA property. She made a copy of that contract, scratched out the existing names, address and price, and inserted a new price ($47,500), address and Rouco's name. The altered contract was dated July 10, 1986. Although Pardo showed Alfert a copy of the contract that day, he did not notice anything unusual about it, and sent a letter to the mortgage company confirming that TRI had an escrow deposit of $4,000. Pardo stated she did not disclose the alterations to Alfert since she feared being fired if respondents learned of her actions. Pardo sent a copy of the altered contract to a mortgage broker friend to see if Rouco could qualify for a loan. Before she heard from the lender, Pardo left Miami in early September for a three-week vacation in the Dominican Republic. She asked another salesman with whom she shared a desk, Carlos Cachaldora, to hold the contract while she was gone. Cachaldora was a long-time employee of TRI, having worked there for some twelve or thirteen years. The two had worked as "partners" for four years with Pardo securing the client and Cachaldora doing the follow-up work. Although Pardo told Carlos about the alterations, Carlos did not advise Alfert or any other TRI employee of Pardo's actions. At hearing, Paido stated she did not know who sent the altered contract to FNMA but "believes" it was Carlos. However, Carlos denied mailing the contract to FNMA, and testified he received it in early September. Since the evidence shows that FNMA received the contract prior to September, it is found that Pardo mailed the contract to FNMA in July or August without advising Futrell or respondents. By fortuitous circumstances FNMA happened to receive from Futrell a validly executed contract on the same property at 100 Southwest 110th Avenue. This contract and the altered July 10 contract were sent to the FNMA attorney in Miami for review in preparing the closing documents. When FNMA's attorney began checking the documents, she noted there were some discrepancies in the two contracts and brought this to the attention of FNMA. Thereafter, a FNMA area supervisor in Atlanta, Paul Buechele, compared the July 10 contract with the other contract and noted that the names on the contracts did not match, that the July 10 contract had the initials of a FNMA employee who no longer worked at FNMA, and that he did not have the original July 10 contract in his files. Buechele telephoned Alfert on Friday, September 5 and briefly told him he had a "problem," and followed up with a letter the same day advising that FNMA "(had) no record of this sales contract," and for Alfert to express mail the original within 48 hours or else FNMA would "consider any such contract null and void." Although Buechele suspected the second contract might be an altered document or a forgery, he did not tell this to Alfert. During their conversation, Alfert looked in the office file, but could not find the original contract. He then advised Buechele that he would have to check with the salesman involved with the sale and get back in touch after he learned what had happened. There were no further communications between the two. The following Monday, Alfert met with Cachaldora who told Alfert he thought the original copy had been sent to FNMA and it must have been misplaced. Alfert was not overly concerned since it was not unusual for the selling broker to have only a copy of a contract in its files, particularly since the listing broker is given the original on FNMA transactions. At no time did Carlos advise Alfert that the July 10 contract was an alteration of the June 10 contract. Carlos telephoned Buechele the same day and advised him TRI had a copy, but no original, of the contract, and it was being express mailed that day to FNMA in Atlanta. On September 11, 1986, Rouco wrote TRI a letter requesting the immediate return of her $4,000 deposit because she had just been advised she could not qualify for a loan. Alfert mailed her a refund check the same day. He gave no further thought to the matter since he felt the contract at that point was "terminated." This was because Rouco had requested a return of her deposit, and more than forty-eight hours had passed since receiving Buechele's letter. On December 2, 1986, a Division investigator visited Alfert to discuss the July 10 contract. His visit was prompted by a complaint from Buechele about the altered contract. For the first time, Alfert learned what Pardo had done. Alfert immediately sent her written notice that she was fired. He also advised the Division that she was no longer an employee of TRI. Cachaldora, who had worked for TRI for some twelve years, also left TRI a few months later, albeit voluntarily. He was not fired because Alfert considered Pardo, and not Cachaldora, to be the guilty party. TRI is a relatively large realty office having three brokers and approximately seventy-five salesmen. Alfert holds the position of manager and has biweekly meetings with sales personnel to go over office procedures and to discuss sales. According to office procedure, Alfert is, whenever practicable, supposed to review all contracts before they are presented or mailed. This advice was conveyed to Pardo and Cachaldora but they did not follow office procedure. Except for the activities of Pardo and Cachaldora, there is no evidence that any other employee was involved in the Rouco matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found not guilty of violating Subsection 475.25(1)(b), Florida Statutes (1985), as alleged in the administrative complaint. DONE AND ORDERED this 7th day of December, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1987.
The Issue Whether Respondent violated Sections 475.25(1)(b),(e),(k), and Section 475.42(1)(b), Florida Statutes, and Rule 61J-14.009, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Tam N. Shigley (Shigley) was provided notice of the final hearing in this case by Notice of Hearing by Video dated December 6, 1996. The final hearing was scheduled to commenced at 9:00 a.m. on January 31, 1997. The Administrative Law Judge and counsel for Petitioner waited until 9:15 a.m. to commence the hearing, but Shigley did not appear. Shigley did not advise either the Division of Administrative Hearings or the Petitioner that she would not be appearing at the final hearing. Shigley is now and was at all times material to this proceeding a licensed Florida real estate salesperson, issued license number 0465639. On March 27, 1994, Shigley was employed by First Nationwide Mortgage. She negotiated a contract between Bich Hue and Minh Huynh (hereinafter Buyers) and Lois A. Hopwood (hereinafter Seller) for the purchase of a house located in Sunrise, Florida. Shigley was listed as the contract escrow agent on the contract. Shigley received a check for $5,500 from the Buyers as a deposit to be held in escrow until the closing. Shigley cashed the check and did not deposit the proceeds of the check in an escrow account. Shigley’s employer was unaware that Shigley had accepted the check, had cashed the check, and had not deposited the check in the escrow account. At the closing of the real estate transaction, Shigley did not have the $5,500 which she had received from the Buyers and stated that she had lost the money. On May 23, 1994, Shigley entered into an agreement with the seller in which she agreed to pay the Seller the $5,500 within six months and that if she did not repay the money within the specified time that the Seller would report Shigley’s actions to the Real Estate Board. Shigley did not repay the money to the Seller. Michael Millard filed a complaint with the Broward County Sheriff’s Department in March, 1995, alleging that Shigley had absconded with $1350 which he had given her as a deposit on a lease. On March 14, 1995, Harvey Kosberg filed a complaint with the Department of Business and Professional alleging that Shigley, while registered as a salesperson with Rainbow Realty had acted as a broker and took and kept money in her name. The Department undertook to investigate the allegations of Mr. Kosberg and was unable to locate Shigley. She did not have a telephone listing, and the post office did not have a forwarding address for her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Tam N. Shigley violated Sections 475.25(1)(b),(e),(k), and 475.42(1)(b), Florida Statutes, and Rule 61J2-14.009, Florida Administrative Code and revoking her license as a real estate salesperson. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of March, 1997. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1997. COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation/Division of Real Estate 400 West Robinson Street, Suite N-308 Orlando, Florida 32801-1772 Tam N. Shigley 5834 Autumn Ridge Road Lake Worth, Florida 33463 Henry M. Solares, Division Director Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner is eligible for licensure as a resident general lines agent.
Findings Of Fact On August 14, 1998, Robert Manns, a representative for Butler County, Missouri, filed a consumer complaint with the Missouri Department of Insurance, which alleged that Petitioner financed a premium for an insurance policy when the premium had, in fact, been paid by the county. On June 9, 1999, Petitioner was assessed a fine of $10,000.00 by the Missouri Department of Insurance based on Petitioner's having practiced forgery and deception in an insurance transaction. Specifically, it was found that Petitioner signed the names of the city finance director and county commission clerk to premium finance documents and letters representing that the city and county had financed a premium when, in fact, the city and county had paid the insurance premium for the city and county accounts in full on an annual basis. At the time Petitioner forged the premium finance agreement, he was licensed as an insurance agent in the State of Missouri. The Missouri Department of Insurance did not revoke Petitioner's license as an insurance agent in the State of Missouri. On February 14, 2000, the Indiana Department of Insurance denied Petitioner’s application for licensure based upon the Missouri administrative action. On September 19, 2003, Petitioner applied for licensure as a resident general lines agent in the State of Florida. Based on its review of Petitioner's application and the administrative documents from the Missouri Department of Insurance described in paragraphs 2 above, the Department denied Petitioner’s application. In regard to the incident described in paragraph 2 above, Petitioner denied that he forged the insurance contract, but he admitted that he forged the premium finance agreement associated with the subject insurance contract. However, Petitioner testified that "no one lost money" as a result of his forging the premium finance agreement. Petitioner testified that he was not proud of the incident, that he was very sorry for doing it, and that his actions could not be justified. The Department considers the forgery of documents and deception related to insurance documents and transactions by an insurance agent to be serious matters. This is particularly true in light of the fiduciary role of an insurance agent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that final order be entered denying Petitioner’s application for licensure as a resident general lines insurance agent in the State of Florida. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2004. COPIES FURNISHED: Johnny R. Howe 4367 Winding Oaks Circle Mulberry, Florida 33860 Michael T. Ruff, Esquire Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The Respondent is, and at all times applicable to these proceedings was, a licensed health and accident insurance agent licensed by National States Insurance Company. In order to become a licensed Florida insurance agent, the Respondent was required to become familiar with the provisions of the Florida Insurance Code and pass an exam given by the Department of Insurance. The Respondent is familiar with the provisions of the Florida Insurance Code applicable to insurance agents. On or about May 4, 1989, Respondent visited the home of Forrest and Viola DePeugh in Englewood, Florida. The DePeughs had sent in a "lead card" to the Respondent's company requesting information on insurance. While visiting the DePeughs, the Respondent asked to see their existing insurance policies. The DePeughs showed the Respondent three insurance policies, all of which were Medicare Supplement policies. The DePeughs had policies from American Sun, AARP, and Old Southern Insurance Company. 5. The Respondent attempted to explain to the DePeughs how their existing coverages would work and how the policy offered by the Respondent's company, National States, was different from the insurance policies the DePeughs had already purchased. Mr. DePeugh had a difficult time understanding the difference in the coverages offered by the various policies. The Respondent tried to explain that the Old Southern policy would pay 100 percent of the Medicare allowable charges, up to the actual amount of the-physician's charges, while the National States policy would pay 200 percent of the Medicare allowable charges, up to the actual amount of the physician charges. While the Respondent was explaining the differences between the policies, Mr. DePeugh was told by the Respondent that the insurance agent who had sold the DePeughs the Old Southern policy, Richard Stetsky, would never have sold them something that did not pay the actual bill. Stetsky had told them that he had been with Old Southern for seven or eight years. When Mrs DePeugh told the Respondent that Stetsky had been with Old Southern for seven or eight years, the Respondent told the DePeughs that the Respondent personally knew that Stetsky had not worked for Old Southern for that length of time because Stetsky had worked with the Respondent at the same agency, Diversified Health Services, only three or four years ago. The Respondent told Mr. DePeugh that if.Stetsky had told them he had worked for Old Southern for seven or eight years, Stetsky was not telling them the truth. Although there was conflicting testimony, the evidence did not prove that the Respondent told the DePeughs that Stetsky was a "thief" or a "crook". During his sales call with the DePeughs, the Respondent showed the DePeughs a copy of the BESTS rating guide, an industry reference which rates the financial performance of insurance companies. The Respondent informed the DePeughs that Old Southern had a BESTS' rating of "C", while the company the Respondent represented, National States, had a BESTS' rating of "A". The Respondent attempted to explain to the DePeughs the difference between an "A" and a "C" rating. The Respondent also told the DePeughs that they could check the ratings of insurance companies at the public library. Mr. DePeugh called the Department of Insurance after the Respondent left, and the Department stated that Old Southern had experienced financial difficulties in the past, but that the company was now in good standing. The evidence did not prove that the Respondent told the DePeughs that Old Southern was "bankrupt" or that Old Southern was a "no good" company. The Respondent did not take an insurance application from the DePeughs. The Respondent did not accept any money from the DePeughs. The Respondent did not tell the DePeughs to cancel any of their existing insurance coverages. The Respondent's sales approach bothered Mrs. DePeugh, and she thought that the Respondent "should have sat down and talked sensibly." The purpose of Mrs. DePeugh's complaint against the Respondent was to make him talk to elderly people in a "more polite fashion" and to "change his attitude to the way he talks to the elderly." If the Respondent had been a "gentleman", Mr. DePeugh believes that he and his wife possibly would have "bought some insurance off of him." Like his wife, the main basis of Mr. DePeugh's complaint against the Respondent was "his attitude". There was no evidence that the Respondent failed to comply with a proper order or rule of the Department of Insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order dismissing the Administrative Complaint against the Respondent, Stephen Todd Daggett, in this case. RECOMMENDED this 25th day of April, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5712 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Accepted but unnecessary. Rejected as not proven. Accepted but unnecessary. Accepted but subordinate to facts not proven and contrary to those found, and also unnecessary. Respondent's Proposed Findings of Fact. 1.-14. Accepted and incorporated to the extent not subordinate or unnecessary. 15. Irrelevant and unnecessary. COPIES FURNISHED: Nancy S. Isenberg, Esquire Department of Insurance Division of Legal Services Room 412, Larson Building Tallahassee, FL 32399-0300 Thomas W. Stahl, Esquire Newell & Stahl, P. A. 817 North Gadsden Street Tallahassee, FL 32303 Wayne O. Smith, Esquire Wayne O. Smith, P. A. 5420 Central Avenue St. Petersburg, FL 33707 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue The issue in this proceeding is whether William Jeffery Mishko's application for qualification as general lines agent should be denied for the reasons stated in the letter of denial: nolo contendere plea to a felony failure to reveal that plea on the application, based on the provisions of subsections 626.611(1)(2) and (7) F.S. and subsection 626.621(8) F.S.
Findings Of Fact William Jeffery Mishko, 1649 Algonquin Trace, Maitland, Florida, submitted his application, dated December 26, 1986, to the Department of Insurance, seeking qualification to take the examination for licensure as a general lines agent or solicitor. At the time that he filled out the application he was attending an insurance school, Hilda Tucker School, in Ft. Lauderdale, Florida. It was the first day of class and the students were told to get their applications in for the examination. He hurriedly completed the form and mailed it. A series of questions on the form address criminal history of the applicant. Those questions and Mishko's responses are: 8. Have you ever been charged with a felony? Yes if YES give date(s): 5/23/84 What was the crime? controlled Stubstnce[sic] Where and when were you charged? Winter Springs C.C. Tuskawilla Did you plead guilty or nolo contendere? No Were you convicted? No Was adjudication withheld? x Please provide a brief description of the nature of the offense charged. [writing struck through] controlled substance If there has been more than one such felony charge, provide an explanation to each charge on an attachment. Certified copies of the information or indictment and Final Adjudication for each charge is required. ---No Mishko testified that he started to explain the whole story on 8.(f), but there was insufficient space. He did not attach an additional sheet and did not attach a copy of the court documents as they were not available to him at the time. Later, the agency returned his application to him with the incomplete items circled. The question at 8.(c) was circled, as well as others relating to residence and employment in the past five years. Mishko then went to the Seminole County courthouse, obtained the certified copies and sent them to the agency. The court records reveal that on January 13, 1986, in case no. 85-999 CFC, in circuit Court of Seminole county, William Jeffery Mishko entered a plea of nolo contendere to possession of a controlled substance. Adjudication was withheld and he was placed on probation for three years. Mishko had been arrested on May 23, 1985, with two friends. He said that he was at work at the golf and country club and two friends came to see him with a small amount of cocaine. The police found them in the golf cart shed and arrested them for possession of cocaine and paraphernalia. The information, dated August 12, 1985, alleges a violation of section 893.13 F.S.. Mishko attributes the errors in the answers on the form itself to his haste to get the application filed so he could take the examination as soon as he finished the course in Ft. Lauderdale. When he followed up the application with the certified court records, he did not amend the application form with the accurate date of arrest or with the correct answer to 8.(c).
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Insurance enter a final order denying William Jeffery Mishko's application based upon subsection 626.621(8) F.S. DONE and RECOMMENDED this 20th day of July, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1254 The following constitute my specific rulings on the parties proposed findings of fact. Petitioner's Proposed Findings of Fact Adopted in paragraphs #1 and #2. Adopted in paragraph #2. Adopted in paragraphs #3 and #4. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph #3. Adopted in paragraph 4. Rejected as irrelevant. See paragraph 4, Conclusions of Law. 7-8. Adopted in paragraph #5. 9-11. Adopted in substance in paragraph #4. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Gerald Rutberg Esquire Post Office Box 977 Casselberry, Florida 32707 Rainell Y. McDonald, Esquire Richard W. Thornburg, Esquire Department of Insurance Room 413-B Larson Building Tallahassee, Florida 32399-0300
