The Issue The issue in this case is whether Respondent, Thomas Felix Diaz, has violated various provisions of the Florida Insurance Code as alleged in an Administrative Complaint dated March 26, 1992 and, if so, what disciplinary action should be imposed against his license as an insurance agent in Florida.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times relevant to this proceeding, Respondent was licensed in this state as a life insurance agent. Respondent is currently licensed as a life insurance agent, as a life and health insurance agent, and as a health insurance agent. At all times pertinent to this proceeding, Respondent was appointed to sell life insurance with Mass Indemnity and Life Insurance Company (MILICO) which has recently changed its name to Primerica Financial Services. In that capacity, all funds received by, from or on behalf of consumers, representing premiums for insurance policies, were trust funds received in a fiduciary capacity and were to be paid over to an insurer, insured, or other persons entitled thereto in the regular course of business. Sometime around March of 1991, the president of Delta Picture Frame Company ("Delta" or the "Company") of Miami decided to change the health insurance for two of his employees. The insurance was being provided at company expense. The prior policy included a small life insurance component as part of the coverage. The president of the Company contacted the MILICO agency to inquire regarding their group health policy and asked to see an agent. On or about March 18, 1991, Respondent accompanied another agent for MILICO, Nelson Barrera, to Delta's office to meet with the president of the Company. At the time of the meeting, Respondent was only licensed as a life insurance agent. He did not obtain his health and life license until approximately April 15, 1991. At the meeting, Barrera explained the coverage and price for health insurance. The president of Delta agreed to purchase the health insurance policies but never verbally expressed any interest in purchasing life insurance for his employees. In fact, he specifically rejected a proposed life and health insurance package stating that the company would only pay for health insurance. Respondent spoke separately with the employees. Applications for both life and health insurance were filled out and signed by the employees. The evidence was inconclusive as to whether life insurance was actually discussed with either of the employees. Only one of the employees testified at the hearing. She verified her signature on the application for life insurance, but she claims that she only discussed health insurance with the agents and did not knowingly apply for life insurance. The president of Delta signed the last page of the life insurance applications which authorized automatic withdrawals to pay MILICO for the life insurance policies. The circumstances surrounding the execution of the life insurance applications was not clearly established by the evidence.. However, the evidence was clear that the president of the Company never intended to purchase life insurance and never knowingly agreed to authorize bank withdrawals for life insurance. The evidence established that the president of the Company clearly indicated that the Company would only pay for health insurance and he never knowingly assented to the issuance of life insurance policies for the employees at company expense. When the president of the Company noticed that the bank records reflected withdrawals payable to MILICO, he inquired further and learned that the deductions were for life insurance. He immediately called Respondent who agreed to cancel the life insurance policies and provide a refund. Respondent was entitled to receive a commission of 75 percent of the first year's premiums for the sale of the life insurance policies to the employees of Delta.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a Final Order finding Respondent guilty of violating Section 626.621(6) and that Respondent's licenses be suspended for a period of three months, or, in lieu of a suspension, Respondent should be required to pay to the Department a fine of $500 and be placed on probation for a period of two years subject to such terms and restrictions as the Department may apply. RECOMMENDED this 3rd day of June 1993, at Tallahassee, Florida. J. STEPHEN MENTON 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 3rd day of June 1993.
The Issue The issue in this case is whether the license of James Joseph Sines (Respondent) should be disciplined by the Department of Insurance and Treasurer (Petitioner) based upon actions he is alleged to have taken during July 1987, involving an insured, Eunice Chappell, which would constitute an unlawful misappropriation and conversion of her funds, as more particularly set forth in the Administrative Complaint issued herein on, or about June 22, 1989.
Findings Of Fact At all times material hereto, Respondent has been licensed, and eligible for licensure, in the State of Florida as a life and health debit agent, life and health agent, general lines agent limited to industrial fire insurance, and health insurance agent. From August 1, 1986, through August 28, 1987, Respondent was employed by Union National Life Insurance Company as a life and health debit agent. All funds received by Respondent under his licenses representing premiums, returned premiums, and other funds belonging to insured persons or insurers were trust funds received in a fiduciary capacity. It was Respondent's usual practice to cash checks for his debit policyholders when he visited them to collect their premiums, as many of his policyholders did not have checking or savings accounts, and thus, had some difficulty cashing checks. He did this as a service to policyholders, and as a way of making sure that insurance premiums were paid up to date, since when he cashed a check for a policyholder, he would deduct the amount of any outstanding overdue premiums, and return the balance of the check proceeds to the policyholder. The value of checks which Respondent cashed for policyholders ranged from $1 to $900, with the average check being around $300. Eunice Chappell was a policyholder with Union National Life Insurance Company at all times material hereto. Respondent visited her in her home on a regular basis, usually weekly, to collect the premiums on her debit policies, and to assist with the filing of any claims on her policies. In fact, he assisted her with the filing of a claim under policies with Union National for income replacement and convalescent benefits for a period of hospitalization from June 24, 1987, to July 3, 1987. On or about July 30, 1987, Respondent received Check Number 352955, dated July 28, 1987, issued by Union National Life Insurance Company and made payable to Eunice Chappell, in the amount of $729, representing benefits due her under policies with Union National for her period of hospital confinement in late June and early July 1987. Shortly after receiving this check, Respondent visited Chappell at her home. Since she was a number of weeks behind on her premiums, she asked him to cash this check for her, and to pay her overdue premiums out of the proceeds. However, Respondent did not have sufficient cash on hand. Therefore, he had her endorse the check, and took it to his bank to cash after he also endorsed the check and placed his account number under his endorsement. Due to her frail physical condition, Respondent had to help Chappell sign her name to the back of this check by placing his hand over hers and guiding it as she made her signature. The only person present during this visit in Chappell's home, other than Respondent and Chappell, was Michael Pierazek, a co-worker and fellow agent for Union National. When Respondent presented this check at his bank, it could not be cashed since he did not have sufficient funds in his account to cover it. Therefore, he returned to Chappell's house, accompanied by Pierazek, and told her he was unable to cash the check for her. However, she insisted that Respondent assist her in any way possible in cashing the check because of her severely limited physical abilities. He told her that the only thing he knew to do would be to return to the bank and deposit the check in his personal account, wait for the funds to clear in a few days, and then return with the proceeds. Chappell agreed to this procedure. It is strictly against the policy of Union National for agents to deposit into their own personal account any policyholder's check received in the course of their business. Respondent was aware of this policy, but sought no exemption from this policy. He did deposit Chappell's check in his account on or about August 3, 1987. On August 14, 1987, Eunice Chappell's daughter, Ethel Small, called the district manager for Union National, Donald R. Sanders, to inquire about the status of her mother's insurance claim check. She indicated to Sanders that her mother had never received the check for $729, dated July 28, 1987. From the evidence received, as well as the demeanor of the witnesses who testified, it is found that Small was simply unaware of her mother's arrangement with Respondent, and the fact that Check Number 352955 had been presented to Chappell by Respondent and subsequently deposited into his personal account with the knowledge and agreement of Chappell. Small was not present during this transaction. An affidavit executed by Chappell on August 21, 1987, states that she received no proceeds from Check Number 352955, which is correct. It does not state that she never was presented with said check. A second check was issued by Union National to Eunice Chappell dated August 19, 1987, which was delivered to her by Sanders and the Respondent on August 21, 1987. This second check was numbered 355819. Ethel Small endorsed this second check on behalf of her mother, under a purported power of attorney. However, the document which she claims gave her Eunice Chappell's power of attorney was signed by a notary public on August 6, 1987, at the place provided on the document for the signature of the person giving the power of attorney, and recites that Ethel Small, rather than Eunice Chappell, was known to, and appeared before said notary public acknowledging "the within power of attorney to be her (Ethel Small's) act and deed." Nowhere on this purported power of attorney does Eunice Chappell's signature or mark appear, nor is there any evidence that she even appeared before the notary public who signed this document. Between August 3, 1987, when he deposited Chappell's first check into his personal account, until August 14, 1987, when Ethel Small contacted the district manager of Union National, Respondent was waiting for this check to clear, and therefore, did not give Chappell any proceeds from this check. While it is not clear from the evidence presented exactly when this first check did clear, and funds became available in Respondent's personal account, it was established that Respondent did not give Chappell any proceeds from this first check. He had been instructed by his district manager, Sanders, not to contact Chappell in any way after August 14, except in his presence. Respondent complied with this directive, and awaited the issuance of a second check to accompany Sanders to Chappell's house to deliver this check. Respondent was terminated by Union National as a result of this transaction, and an amount equal to the proceeds from the first check was deducted by Union National from his personal savings account with the company, the balance of which he received at termination, in order to reimburse Union National for the issuance of the second check. There is no evidence that Respondent used the proceeds of the first Chappell check for his own benefit, or that Union National expended funds beyond what they were obligated to pay to Chappell on her claim as a result of Respondent's actions in this transaction. He did violate company policy by depositing Chappell's first check in his personal account, but this was done with her full knowledge and consent, and was, in fact, done at her request. At the time of hearing, Eunice Chappell was deceased, and therefore, the findings set forth herein concerning her arrangement with the Respondent are based upon the demeanor and credibility of witnesses who testified and who were present on July 30, 1987, when Respondent and Chappell met, as well as the demeanor of the one witness who disputes Respondent's account of this transaction, Ethel Small. It is specifically found that Small's testimony lacks credibility because it was conflicting and implausible, and because she had a personal motive to have a second check issued. She testified she was always present with her mother in the home and never left her side during the times in question, but then offered conflicting, vague and uncertain testimony about when she moved into her mother's house, times she had to leave her mother to go to the store, do laundry and cash checks, and about leaving her mother with her sister. She admitted that on two occasions each week she would take a taxi cab to the store and back, and this would take an hour or so, plus the time necessary to wait for the cab. Her testimony that she never left her mother's house when her husband periodically came to visit her from Deland is not credible. Small had a motive for wanting a second check to be issued by Union National after she found out that her mother had a private arrangement with Respondent concerning the first check. Under the purported power of attorney which she had executed only a few days after her mother gave the first check to Respondent, she endorsed and cashed the second check for $729. Ethel Small filed a complaint with the Petitioner concerning this matter in May or June 1988. No evidence was presented in support of the Respondent's affirmative defense of laches, and it was not shown that Petitioner's actions between receipt of this complaint and the filing of the Administrative Complaint in this matter was dilatory or prejudicial to Respondent.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order dismissing all charges against Respondent contained in the Administrative Complaint filed in this matter. DONE AND ENTERED this 18th of December, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1989. APPENDIX (DOAH CASE NO. 89-3999) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 5. Rejected in Finding 14. Adopted in Findings 5, 6. Rejected as irrelevant and immaterial. Adopted in Finding 9. 8-9. Adopted and Rejected in part in Findings 9, 10. Rejected in Findings 6-10. Rejected in Findings 6, 14. Adopted in part in Finding 11, but otherwise rejected in Finding 14 and as not based on competent substantial evidence. Adopted and Rejected in part in Finding 10. Adopted in Finding 12. Adopted in Finding 15. Rulings on the Respondents Proposed Findings of Fact: Adopted in Findings 6 - 10, 14. Rejected in Finding 15. COPIES FURNISHED: John C. Jordan, Esquire 412 Larson Building Tallahassee, FL 32399-0300 Terry M. Brocklehurst, Esquire Countryside Place, Suite 110 2605 Enterprise Road East Clearwater, FL 34619 Don Dowdell, Esquire General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue in this case is whether, for the reasons alleged in the Administrative Complaint dated February 10, 1984, the Petitioner should revoke the Respondent's license and eligibility for licensure as an insurance agent or impose some lesser penalty authorized by statute.
Findings Of Fact Based on the testimony of the witnesses and the exhibits admitted into evidence, I make the following Findings of Fact: 1/ On June 16, 1982, the Respondent, Shelby Dewey Blackman, executed an Application for Qualification as Nonresident Life Agent, which application he thereafter caused to be filed with the Petitioner, Department of Insurance and Treasurer. In that application Mr. Blackman stated that his residence address and his business address in his state of residence were both "2549 New York Avenue, Pascagoula, Miss. 39567." (Pet. Ex. 1; Tr. 12-13) The Department of Insurance and Treasurer does not issue Nonresident Life Agent licenses to people who are in fact residents of the State of Florida. Such licenses are only issued to people who are nonresidents of this state. Applicants for Resident Life Agent licenses are required to take an examination prior to licensure. Applicants for Nonresident Life Agent licenses are not required to take an examination prior to licensure. The Department would not have issued a Nonresident Life Agent license to Mr. Blackman if the Department had known that Mr. Blackman was a Florida resident. (Tr. 14) As a result of the filing of the application described above, the Department issued to Mr. Blackman a license as a Nonresident Life and Health Agent for the American Sun Life Insurance Company, which was the only company he was authorized to write insurance for in the State of Florida. When Mr. Blackman received his license, the license listed the name of the the only company he was authorized to write insurance for in this state. Licensees who are authorized to represent more than one insurance company in this state receive a separate license for each company they are authorized to represent. Mr. Blackman had only the one license to represent one company. (Pet. Ex. 1 and 2; Tr. 14-18) At all times material to this case, Mr. Blackman was a resident of Santa Rosa County, Florida. Specifically, Mr. Blackman was a resident of Santa Rosa County, Florida, at the time he applied for and was issued a Nonresident Life and Health Agent license and at the time of writing the four insurance applications which are described hereinafter. (Pet. Ex. 3; Tr. 20-21, 53) Continental Bankers Life Insurance Company of the South does not currently hold, and has never held, a Certificate of Authority to write insurance in the State of Florida. In November of 1982 Continental Bankers Life Insurance Company of the South was licensed to write insurance in the State of Alabama and Mr. Blackman was authorized by Continental to write insurance for Continental in the State of Alabama. (Pat. Ex. 8; Tr. 24-25) During November of 1982, Mr. Blackman wrote four applications for health insurance policies to be issued by the Continental Bankers Life Insurance Company of the South. One was an application dated November 2, 1982 from Mr. Thomas J. Barrow. Another was an application dated November 4, 1982, from Mr. Jimmie R. Williams. The last two were applications dated November 12, 1982, from Mr. Henry E. Marshall and Mr. Ercy L. Henderson, respectively. All four of the applications were written and signed in Jay, Florida. No part of the transactions which culminated in the writing of the four applications took place in the State of Alabama. On three of the applications Mr. Blackman wrote that the application was written and signed in Brewton, Alabama, and on one of the applications Mr. Blackman wrote that the application was written and signed in Flomaton, Alabama. The statements that the applications were written and signed in Alabama were false statements that Mr. Blackman knew to be false statements. (Pet. Ex. 4, 5, 6, 7; Tr. 37-38, 42, 49, 53-54) The false statements written on the four applications described above were relied upon by the Continental Bankers Life Insurance Company of the South and were, therefore, material misrepresentations. If Mr. Blackman had truthfully written on the applications that they were written and signed in the State of Florida, Continental would not have issued policies on the basis of those four applications because Continental was not licensed to write insurance in the State of Florida. The MM-6 policy is an insurance policy that Continental markets in Alabama and the false statements on the applications which indicated that the policies were applied for and completed in Alabama induced Continental to issue the policies. (Tr. 25-27, 32, 34-35)
Recommendation For all of the reasons set forth above, and particularly because of Mr. Blackman's demonstrated disregard for the truth, I RECOMMEND that the Department of Insurance and Treasurer enter a Final Order revoking Mr. Blackman's license and eligibility to hold a license. DONE AND ORDERED this 31st day of July, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9575 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1984.
The Issue The issue is whether Respondent is liable for a penalty of $44,794.51 for the alleged failure to maintain workers' compensation insurance for two employees in violation of Chapter 440, Florida Statutes (2008).1
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation insurance for the benefit of their employees in accordance with Section 440.107. Respondent is a Florida corporation engaged in the construction business. Respondent utilizes a payroll service company, identified in the record as Frank Crum Leasing (Frank Crum). Frank Crum pays Respondent's employees and collects premiums for workers' compensation insurance based on payroll and employee hours that Respondent reports to Frank Crum each week. Frank Crum maintains a list of the reported employees that is updated weekly (the weekly Frank Crum list). Respondent reports payroll and employee hours to Frank Crum in arrears. On Wednesday afternoon of each week, Respondent reports payroll and employee hours to Frank Crum for the preceding Wednesday through Tuesday. Frank Crum publishes a weekly Frank Crum list each Thursday. New employees that begin work on Wednesday through Tuesday appear on the next weekly Frank Crum list. For example, new employees that began work anytime from Wednesday, February 18, 2009, through Tuesday, February 24, 2009, are reported on February 25, 2009, and appear on the weekly Frank Crum list dated February 26, 2009. New employees that began work anytime from Wednesday, February 25, 2009, through Tuesday, March 3, 2009, are reported on March 4, 2009, and appear on the weekly Frank Crum list dated March 5, 2009.2 Frank Crum collects workers' compensation insurance premiums from Respondent in arrears based on the payroll and employee hours reported each Wednesday for the previous week. The reporting of payroll and employee hours and the payment of insurance premiums in arrears has been Respondent's customary business practice for the past 13 years. On February 26, 2009, one of Petitioner's investigators conducted a random construction site visit at 6417 Grand Island Road, Apollo Beach, Florida. Four workers, who are identified by name in exhibits of record, were laying a concrete sidewalk at the site. The four workers laying the sidewalk were employees of Respondent. Two of the workers were on the weekly Frank Crum list dated February 26, 2006. The other two workers were not on the same list. The two workers who were not on the Frank Crum list dated February 26, 2006, are identified in the record as Mr. Ricardo Hurtado and Mr. Evelio Bueno. On February 26, 2009, Petitioner issued a Stop-Work Order and Penalty Assessment and requested business records from Respondent. Petitioner reviewed the business records and, on April 10, 2009, issued an Amended Order of Penalty Assessment in the amount of $44,794.51 for failure to maintain workers' compensation insurance coverage for the two workers who were not listed on the weekly Frank Crum list dated February 26, 2009, and identified in record as Mr. Hurtado and Mr. Bueno. Respondent does not dispute the accuracy of the penalty calculation. However, Respondent does dispute that Respondent is liable for the penalty assessment. Respondent maintains that the two unlisted workers were covered by workers' compensation insurance on February 26, 2009. The two unlisted workers began their employment with Respondent on February 25, 2009. On March 4, 2009, Respondent reported the new employees to Frank Crum. Respondent paid premiums to Frank Crum for workers' compensation insurance covering the two workers for the dates of employment on February 25 and 26, 2009. The two unlisted workers were covered by workers' compensation insurance on February 25 and 26, 2009. The weekly Frank Crum lists in Petitioner's exhibits are not clear and convincing evidence of the effective date of workers' compensation insurance coverage. The testimony of Respondent's witness at the hearing was clear and convincing that the two workers were covered by workers' compensation insurance in accordance with the customary business practice of Respondent and Frank Crum for the last 16 years. The terms of the workers' compensation insurance policies would have assisted the fact-finder in resolving any evidential conflicts concerning the effective date of workers' compensation insurance coverage. However, Petitioner did not submit copies of the insurance policies and did not submit the testimony of a representative of the workers' compensation insurance company. In support of Petitioner's assertion that Mr. Hurtado and Mr. Bueno were not covered by workers' compensation insurance, Petitioner cites, in paragraph number 13 of its PRO, the testimony of the general counsel of Frank Crum. Petitioner points to the deposition testimony of the general counsel which, in relevant part, states that she did not know whether the insurance company covered the two unlisted workers. The general counsel explained that such a determination would be up to the insurance company and not the general counsel for Frank Crum. The general counsel is correct. Petitioner submitted no evidence to show that the general counsel of Frank Crum is competent to testify for the insurance company. The evidence is clear that Respondent paid insurance premiums in arrears. The evidence is less than clear that insurance coverage was not in effect before the payment of the premium.3 The pretermitted insurance policy or competent testimony from an insurance representative may have clarified the issue. However, the only testimony concerning the effective date of workers' compensation coverage for the two unlisted workers comes from Respondent's live witness. The fact-finder finds her testimony to be credible and persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order dismissing the Stop-Work Order and Amended Order of Penalty Assessment. DONE AND ENTERED this 4th day of August, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2009.
The Issue Whether Respondent's insurance license should be suspended or revoked or otherwise disciplined because Respondent violated the Florida Insurance Code.
Findings Of Fact The Department is the agency with jurisdiction over licensing insurance agents pursuant to Chapter 626, Florida Statutes. Respondent applied for a license with the Department as a non-resident life, health, and variable annuity agent by submitting an application which he signed on July 4, 1999. He was awarded nonresident insurance License No. D008927 on July 12, 1999. Question seven on the July 4, 1999, application for licensure, inquired, "Has anyone ever obtained a judgement, or is there currently pending, any type of civil action against you individually or against any entity in which you are or were an officer, director, partner, or owner based upon allegations of fraud, misrepresentation or conversion or which in any way involved the subject of insurance?" Respondent checked a box which indicated a negative answer. Because the application submitted by Respondent appeared to be correct, Respondent was issued the aforementioned license. On July 4, 1999, when Respondent answered question seven, a judgment by default had been entered against Respondent by the Circuit Court of Maryland for Montgomery County, in a case styled Paley, Rothman, Goldstein, Rosenberg & Cooper, Chartered, v. Daniel D. Manoff. The judgment was in the amount of $7,590.36 and was filed with the Clerk on July 6, 1994. The complaint which resulted in the judgment alleged that Respondent had failed to pay for legal services received. This complaint involved the breach of a contract. Therefore, Respondent's answer to question seven was correct, insofar as the unrevealed judgment is concerned, because the judgment did not involve a matter "based upon allegations of fraud, misrepresentation or conversion or which in any way involved the subject of insurance." A complaint was filed against Petitioner on May 18, 1998, in the Circuit Court of Maryland for Montgomery County, styled First Financial Group, et al., v. Daniel Manoff, et al., v. The Guardian Life Insurance Company of America, et al. Respondent was a defendant in that case. The suit which was the subject of the complaint was unresolved on July 4, 1999, when Respondent answered question seven. The complaint in the First Financial Group case alleged that Respondent committed fraud. Because of this, Respondent incorrectly answered question seven. When Respondent signed the application for an insurance license on July 4, 1999, he was aware, or was provided ample opportunity to be aware, that a truthful application was expected by the Department. This is because immediately above the signature line are the words, "Final Statement," and below those words are explicit warnings as to the hazards of signing the application when the person providing the imprimatur has not provided correct information. The warnings include one which informs that signing a false statement is a second degree misdemeanor and another that states that the signature is made under penalties of perjury. In addition to the foregoing, the "Final Statement" contains an oath which avers that, ". . . I have not withheld any information on myself that would in any way affect my qualifications." The information sought by question seven is material to the decision as to whether the Department considered Respondent to be qualified to hold an insurance license. Had the information requested been timely supplied, Respondent would not have been awarded a license absent further inquiry into his experiences with the legal system in Montgomery County, Maryland. Respondent worked for Agency 10 of the Berkshire Life Insurance Company in Rockville, Maryland, at the time he submitted the application for licensure which is the subject of this proceeding. The person charged with carrying out administrative duties at that agency was Kathy Cody. Among other duties, she was responsible for obtaining licenses and appointments for agents and managers in the Rockville field office. When processing applications, Ms. Cody, and sometimes another administrator in the office, typically would solicit information from the agent, broker or manager requiring a license and would prepare an application. She did this for many people for many states. Respondent was licensed in a number of states and Ms. Cody assisted Respondent in obtaining some of those licenses. She does not specifically remember the application at issue. It was Ms. Cody's practice to submit completed application forms to the home office in Pittsfield, Massachusetts. If the paperwork was in order, the home office would send the applications to the appropriate state licensing agency. Ms. Cody, or in any event, someone in the office other than Respondent, sent his Florida application to the home office. Respondent did not complete the entire application. He did, however, sign the application which meant that he swore to the accuracy of its contents. Sue Carter processes license applications for the Department. She has engaged in this work since 1984. According to Ms. Carter, if an application is received which reveals an unsatisfied judgment, then further inquiry is made. According to Ms. Carter, it is the policy of the Department to refuse to license someone with a pending complaint alleging fraud. Therefore, she stated, if Respondent's application had revealed the existence of the First Financial Group complaint, the Department would not have issued a license to Respondent.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Respondent violated on one occasion, Section 626.611(1), (2) and (7), and Section 626.211(1), Florida Statutes, and which requires Respondent to surrender his non-resident life, health, and variable annuity insurance agent license. DONE AND ENTERED this 8th day of April, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 8th day of April, 2002. COPIES FURNISHED: Daniel Dwight Manoff Post Office Box 267 Poolesville, Maryland 20837 Richard J. Santurri, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Plaza Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact On January 7, 1981, the Petitioner notified the Respondent that an action was being commenced to revoke the Respondent's self-insurance privilege pertaining to employee compensation insurance coverage in the State of Florida. That notification stated as grounds that the Respondent, having had its self- insurer's surety bond terminated, the revocation proceeding would take place. The notification letter afforded the Respondent an opportunity for hearing on this revocation question and on January 24, 1981, the Respondent requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings on February 3, 1981. On February 13, 1981, the Petitioner acknowledged receipt of the request for formal hearing and the Petitioner identified the steps that it deemed to be necessary before the Respondent could continue as a self-insured employer, to include the necessity to provide an excess loss insurance policy. The formal hearing de novo was conducted on March 27, 1991. The Respondent has employees working in the State of Florida and it has been operating as a self-insured employer in the State of Florida from 1977, through January, 1981, by the process of posting a $25,000 surety bond. On December 11, 1980, the Petitioner received a termination notice related to the Respondent's self-insurer's bond. The bond issued by the Underwriters Insurance Company of North America was officially cancelled February 3, 1981. The Respondent, subsequent to the time of the bond cancellation, has failed to purchase a further bond, which bond at present must be a minimum amount of $380,000 or to provide other sufficient security. In lieu of the opportunity for self-insurance, the Respondent could purchase a workers' compensation insurance policy; however, at the time of the hearing, in addition to not having an appropriate bond or other security, the Respondent had not purchased such an insurance policy. The Respondent has no cash and negotiable instruments filed with the Florida Bureau of Self Insurance as surety for workers' compensation coverage. The Respondent also is without an acceptable excess loss insurance policy for purposes of workers' compensation.
Findings Of Fact The Petitioner, Ecker Enterprises, is a corporation licensed to do business in Florida with home offices in Chicago, Illinois. It has, in the past, and up until the approximate time of this proceeding, properly authenticated its ability to provide its own insurance or funds to cover any worker's compensation exposure emanating from its operations within the State of Florida in a manner sufficient to comply with Chapter 440, Florida Statutes, and Chapter 35-5, Florida Administrative Code. The corporation, however, failed to file required financial statements and other financial information with the Bureau of Self-Insurance of the Department for 1980. On August 18, 1980 the Chief of the Bureau of Worker's Compensation, Self-Insurance issued a revocation of the corporation's privilege to be self- insured in the State of Florida pursuant to Rule 38-5.12(5) Florida Administrative Code. The financial statements involved were filed at a later time, although not timely, but did not comport with the subject rules on self-insurers in that they were not certified and did not contain the required information as to financial disclosure. The Department stipulated that it would forebear from revoking the privilege for forty-five days and allow the self-insurance privilege to remain in force provided the corporation filed the necessary documentation pursuant to Section 440.51(12) Florida Statutes, and the above-cited rule, within that period of time, to which the Petitioner agreed. The time stipulated by which the filings were to be made has elapsed and the Petitioner has failed to comply with the stipulation.
Recommendation Having considered the evidence in the record the candor and demeanor of the witnesses, the foregoing Findings of Fact and Conclusions of Law, and arguments of counsel, it is therefore RECOMMENDED that the revocation of privilege of self-insurance in the State of Florida previously imposed against the Petitioner herein was proper and should therefore stand unchanged. DONE and ENTERED this 6th day of January, 1981, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1981. COPIES FURNISHED: Jack C. Inman, Esquire Post Office Box 1294 Orlando, Florida 32302 Douglas P. Chance, Esquire Dept. of Labor and Employment Security 2562 Executive Center Circle, East Tallahassee, Florida 32301 Mr. Wallace E. Orr Secretary Department of Labor and Employment Security Suite 206 Berkley Building 2690 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent, Pearlie M. Butler, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on December 29, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat. (2003). Respondent, Pearlie Mae Butler, is licensed in Florida as a Life Including Variable Annuity Agent (2-14), a Life and Health Agent (2-18), and a Health Agent (2-40). Ms. Butler's license number is D068258. At the times relevant to this matter, the Department has had jurisdiction over Ms. Butler's insurance licenses and appointments. Ms. Butler's Failure to Remit. At the times relevant to this matter, Ms. Butler was employed as an agent of Monumental Life Insurance Company (hereinafter referred to as "Monumental"). Ms. Butler, on behalf of Monumental, collected payments for insurance on a monthly basis, often in cash. Pursuant to Monumental's policies and procedures, Ms. Butler was required to give customers a receipt for all premium payments, which she signed in acknowledgement of a payment, and to record the receipt of the payment in Monumental's records. In September 2003 Ms. Butler voluntarily left Monumental. As a consequence, an audit was conducted of Ms. Butler's records. This audit included a comparison of actual insurance premium receipts which Ms. Butler had give to her customers with the insurance premium payments recorded by her in Monumental's records. As a result of the audit, it was found that Ms. Butler had collected a total of $483.21 in premiums she had received from three different customers which she did not report or remit to Monumental. These funds constituted trust funds pursuant to Section 626.561(1), Florida Statutes (2003), and were received in a fiduciary capacity by Ms. Butler. As such they should have been accounted for and paid to Monumental. Ms. Butler was informed by letter of the findings of the audit and was requested to remit the unaccounted-for funds. Ms. Butler had not, as of the date of the final hearing, responded to this request. Monumental, despite not having received the premiums, gave the three customers credit for their payments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Pearlie Mae Butler violated the provision of Chapter 626, Florida Statutes (2003), described, supra, and revoking her licenses. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 8th day of September, 2005. COPIES FURNISHED: James A. Bossart, Esquire Division of Legal Services Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Pearlie M. Butler Post Office Box 924013 Homestead, Florida 33032 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
