Findings Of Fact During 1977, while licensed as an insurance agent, Mr. Yesnes engaged in a scheme to fraudulently obtain sales commissions from various insurance companies. He submitted applications for insurance coverage without the prior consent of the purported applicants. He obtained the data to fill in their application forms from information contained in previous policy records. This scheme was admitted by Mr. Yesnes when he appeared before a Department of Insurance investigator, Eugene Petree, III, to explain consumer complaints against him related to the bogus applications. On February 24, 1977 Mr. Yesnes, while registered with the Department as a non-resident agent, sold a $50,000 decreasing term life insurance policy to a 65 year old widow, Mrs. Inez Cameron. This sale was made in Pensacola, Florida, where both Mr. Yesnes and Mrs. Cameron were living at the time. The beneficiary of the policy was designated as "the estate of Inez Cameron." When that designation was made, Mr. Yesnes was the legatee of Mrs. Cameron's will. Mr. Yesnes later requested the company issuing the policy, United Presidential Life Insurance Company, to change the beneficiary of the policy to himself by name, but the company refused to make the change. Under the foregoing circumstances it is contrary to the standards of the insurance industry for an agent to sell a policy in which he is made the beneficiary. Mrs. Cameron was a widow and had no known living close relatives. She had established a personal "mother-son" relationship with Mr. Yesnes and for a period of time they lived together. For the last year and a half Mr. Yesnes has been a pizza wholesaler in the Pensacola area. He contracts for a supplier to manufacture the pizzas which Mr. Yesnes then sells to bars and small restaurants who cannot economically produce their own pizzas. According to his present supplier Mr. Yesnes sells a product of a much higher quality than the purchasers should expect to get for their cost. His present supplier, Mr. Meehan, has known Mr. Yesnes for eight to nine months. In his opinion Mr. Yesnes is trustworthy and reliable. He pays his bills on time and keeps his obligations. Mr. Secchiari, the owner of Genos Pizza in Pensacola, is Mr. Yesnes' former supplier. He too believes him to be trustworthy and reliable. In his opinion as an insurance consumer he believes that if licensed, Mr. Yesnes would be better than some life insurance agents and not as good as others. Mr. Yesnes has always been prompt in paying his bills with Mr. Secchiari. Mr. Yesnes was initially licensed as an insurance agent in Florida in February 1965. Three years later he moved to Atlanta, Georgia. He later moved to Pensacola in 1976 where he was employed by the Franklin Life Insurance Company. During that employment he was supervised by Michael Howard, an area manager. Mr. Howard had contact with Mr. Yesnes for a period of eighteen months. On the basis of that experience Mr. Howard is of the opinion that Petitioner is ethically unfit to be in the insurance business. Respondent offered testimony from Ms. Dorothy Dale Godwin and Ms. Sarah Dawson in the form of their opinion of Petitioner's character. This testimony is not accepted as credible. It lacks an adequate foundation because the witnesses contact with Mr. Yesnes was fleeting. Due to their relationship with Mrs. Cameron they are also found to be biased against Mr. Yesnes. On his pending application for licensure Mr. Yesnes gave 804 Royce Street, Pensacola, Florida 32503 as his address for the past five years. In fact, during that time he lived in Atlanta, Georgia; Mobile, Alabama; and at different addresses in Pensacola. He gave the 804 Royce Street address because that is where his father lives. At times Petitioner has lived there and he considers it his permanent address. At no time during these proceedings has Petitioner expressed regret for any past unprofessional actions. He has also not expressed any commitment not to engage in unprofessional behavior in the future, if licensed to sell insurance in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent, Department of Insurance and Treasurer, enter a final order denying the application of Ivan Yesnes for a license as a life agent in the State of Florida. DONE and RECOMMENDED this 14th day of July, 1981, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1981.
Findings Of Fact Petitioner applied to the Respondent for licensure as a general lines, and a life and health insurance agent on or about February 8, 1990. By letter dated May 17, 1990, the Petitioner was informed that his applications for examination were denied based upon a finding that he lacked fitness or trustworthiness to engage in the insurance business. Petitioner timely requested a hearing to determine if he is qualified to take these licensure examinations. On or about January 3, 1986, the Petitioner entered a plea of guilty to two counts in a superseding indictment filed in Case Number 84-00603(S)-05 in the United States District Court for the Eastern District of New York. Based upon this plea, the Petitioner was found guilty of conspiracy to defraud an insurance company and filing a false insurance claim, each count being a felony involving moral turpitude. He was sentenced to three years probation, and ordered to pay a fine of $10,000. Special conditions of probation included prohibiting the Petitioner from engaging in the insurance business, and requiring that he make restitution to the Hartford Insurance Group in the sum of $1,778.08. On or about August 15, 1986, the Insurance Department of the State of New York revoked the Petitioner's insurance broker's license, based upon his felony conviction as set forth above. The Petitioner successfully completed his period of probation in New York on January 2, 1989, including payment of the $10,000 fine and restitution in the amount of $1,778.08. On or about September 22, 1989, the Board of Parole of the State of New York issued a Certificate of Relief from Disabilities to the Petitioner which removes bars to employment and licensure automatically imposed by the laws of the State of New York as a result of his conviction. However, this Certificate specifies that it shall not prevent any administrative or licensing body or board from relying upon this conviction as a basis for the exercise of its discretionary power to refuse to issue a license. The Petitioner failed to disclose on his applications for examination that his insurance broker's license in New York had been revoked. In fact, he specifically answered "no" to the question on these applications concerning whether his license had ever been revoked in another state. The Petitioner did disclose on his applications for examination that he had been charged with a felony in New York, and indicated that he had entered a plea to a single charge. He stated on his applications, however, that he had not been convicted by any court. The Petitioner claims that he did not know that his New York license had been revoked. Rather, he testified that he had sought to surrender his license in New York after his conviction in 1986, and thought that the administrative action had been concluded with his license surrender. He claims he never was notified of any hearing, and did not receive a copy of the order of revocation issued by the Insurance Department in New York. The Petitioner also claims that he entered his plea of guilty as a matter of convenience in order to avoid a long and expensive trial, and on the advise of his counsel. He maintains that he did not file a false insurance claim and did not conspire to defraud any insurance company. Rather, he testified that he was very ill at the time, and did not expect to live. In order to avoid the strain and expense of a trial, and since he did not believe he would ever again be physically able to engage in the insurance business, he agreed to resolve the criminal charges against him with a plea of guilty to two counts in the superseding indictment issued against him. Finally, he testified that he indicated on his applications that he had not been convicted by any court since he had not had a jury trial, and he was under the impression that a person can be convicted only if found guilty by a jury. Based upon his demeanor at hearing, it is found that the Petitioner is a credible witness and that his claims that he did not know his New York license had been revoked and that he thought a person could only be convicted if found guilty by a jury are truthful. Nevertheless, the Petitioner was in error regarding both claims, and as a result, he answered questions on his applications in a false and incomplete manner. He was convicted on two felony counts, and his license was revoked in New York based on those convictions.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified to take the examination for licensure as a general lines, and a life and health insurance agent. DONE AND ENTERED this 2nd day of April, 1991 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 2nd day of April, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Rejected as a summary of the evidence (Exhibit P-2) and not a proposed finding of fact. Adopted in Finding 1. Adopted and Rejected, in part, in Finding 6. Adopted, in part, in Finding 2, but otherwise rejected as unnecessary, simply a summation of testimony, and as not based on competent substantial evidence. Adopted in Finding 8. Rejected in Finding 9. Rejected as a comment on the record and not a proposed finding of fact. Rulings on the Respondent's Proposed Findings of Fact. COPIES FURNISHED: Mark E. Berman, Esquire 2450 Hollywood Boulevard Suite 401 Hollywood, FL 33020 Gordon Thomas Nicol, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Bill O'Neil, Esquire General Counsel The Capitol, PLaza Level Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
Findings Of Fact On June 30, 1983, Petitioner, Timothy Bond Taber, entered a plea of nolo contendere to the charge of sale, delivery, or possession of cannabis with intent to sell, which is defined as a third degree felony by Section 893.13, Florida Statutes, in the Circuit Court for Leon County, Florida. On the basis of his plea, he was found guilty as charged and, inter alia, placed on probation for three years. However, on August 29, 1983, upon Motion by Mr. Taber, the judge entered an Order deleting the adjudication of guilt and withholding adjudication. The probation and other aspects of the prior action were not disturbed. Petitioner explained the facts and circumstances leading up to his arrest which took place in Tallahassee on, January 28, 1983. At that time, Petitioner, who was a 19 year old high school graduate who had lived in Tallahassee for seven years, was working for U-Haul. His co-defendant in the criminal case was his U-Haul supervisor who, at the time, was on a work release program from the Leon County Jail. He was also engaged in repeated sales of marijuana and convinced Petitioner to allow him to store his stock of marijuana in Petitioner's car and to hold the money from the sales. Petitioner admits to being engaged in this activity but denies any sales himself. He now knows his actions were a big mistake and he deeply regrets his participation in them. He has no other criminal history. In addition to the probation, Petitioner was sentenced to community service the term of which was subsequently reduced due to his good behavior. There is some indication his probation officer will recommend termination of his probation one year early due to his good behavior. After leaving U-Haul, where he had worked for five years, Petitioner went to work as a trainee for Mr. Hudgins, District Manager in Tallahassee for Family Life Insurance Co. Mr. Hodgins observed Petitioner carefully during the training period. He found Petitioner epitomized the good qualities looked for by his company to represent it in insurance sales. Integrity is a watchword in the insurance industry and Mr. Hudgins does not see anything in Petitioner's past which would show he does not have this requisite integrity. In fact, Mr. Hudgins sees traits in Petitioner, such as honesty, drive, and a desire to help, which would lead to success in the field. When Petitioner made his application for employment with Mr. Hudgins' company, he answered "no" to the question regarding any prior convictions, since the question does not relate to arrests. Even knowing of Petitioner's misconduct, Mr. Hudgins does not consider Petitioner is disqualified. In his opinion, because Petitioner was young when he made a mistake he should not be perpetually tarred because of it. These sentiments are echoed in the statement of a co- worker of Petitioner's at U-Haul who has know him for six years and who has recently hired him to work at Ryder Truck Rental. Mr. Earlywine has had many compliments from customers and co- workers about Petitioner's outstanding work and business ethics. These qualities were also recognized by Joan O'Steen, a Deputy Sheriff in Hillsborough County, who is convinced that Petitioner is a strong and morally superior individual. On the basis of the above, it would appear, therefore, that Petitioner is neither unfit nor untrustworthy at this time. On June 28, 1985, Petitioner submitted to Respondent an application for filing for examination as an ordinary life, including health, agent. At question 11, he properly indicated he had been charged with a felony but not convicted. On the basis of his plea, however, on August 30, 1985, the chief, Bureau of Licensing for Respondent, denied Petitioner's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner's application to sit the examination for licensing as an ordinary life, including health, agent be denied. RECOMMENDED in Tallahassee, Florida, this 21st day of January, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301j Bernard F. Daley, Jr., Esquire P. O. Box 1177 Tallahassee, Florida 32302 David G. Poucher, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
The Issue The issue for consideration is whether Respondent's license or eligibility for licensure as an insurance agent in Florida should be disciplined because of the Administrative Complaint filed herein, and whether Respondent should be denied a resident license to represent various insurance companies in this state because of the misconduct alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the allegations contained herein, Michael Eugene Best was either licensed or eligible for licensure as a life insurance agent, a life and health insurance agent, and a health insurance agent in the State of Florida, and was engaged in the sale and brokerage of insurance, doing business as M. E. Best Investments. The Department of Insurance is the state agency responsible for the monitoring and regulation of the insurance business in this state. Ms. Dorothy Clark, a 73 year old woman, has known and done business with Mr. Best in the insurance area for approximately ten years. In August, 1988, she met with him to discuss her possible purchase of some kind of insurance. She cannot recall what kind of insurance it was. She gave him some money to pay for the insurance in question, which was to be procured from some insurance company, the name of which she could not initially remember, but subsequently recalled to be American Sun Life Insurance Company. The premium payment which she gave to Mr. Best was in the amount of $1,200.00, but she cannot recall whether he was obliged to use that money for the purchase of insurance from that particular company, or whether he had the option to place the insurance with another company. To the best of her limited recollection, Mr. Best did get a policy for her from American Sun Life Insurance Company, but she cannot recall if she kept that policy or if it was changed to another company. She does not recall requesting him to change companies, however, but does recall that she ultimately received a policy issued by United American Life Insurance Company and that Mr. Best was the agent who procured it for her. At hearing she denied ever attempting to cancel the United American policy though she claims she did not want it. She claims that she never received a refund check from United American, however, a check payable to her in the amount of $799.90 was issued to her by that company with address shown as her home of record. The check bears what purports to be her endorsement on the back thereof, followed by the endorsement of Mr. Best's company, but at first she claimed she did not place it there. When shown the check at the hearing, however, she admitted the signature on the endorsement was hers and that she most likely signed it. This check was issued as a result of her unremembered direction to Mr. Best to cancel the policy. She claims she did not authorize Mr. Best to take the money it represented and use it for his purposes. She claims that the check was subsequently deposited by her to her account and that Mr. Best never got possession of it or the money. This is patently wrong, however, inasmuch as Mr. Best admits that he did have the check and placed his company's endorsement on it. He subsequently used the check, with her agreement, to apply toward a policy with another company, and to his recollection, she voluntarily endorsed the check to him. Ms. Clark also purchased a $30,000.00 annuity policy through Mr. Best with another company, the name of which she cannot recall, at about the same time as the first policy mentioned herein. To get this policy she issued a check to Mr. Best in the amount of $30,000.00. When the policy was issued, she requested that it be cancel led because by the time she received it, she had reconsidered and determined that she did not want it. She notified Mr. Best of her desires that the policy be cancelled, but claims she never communicated directly with the company. The company has a letter reputedly from her, however, which complains of Respondent's purported trickery and deceit. It is found that this latter letter was prepared for her signature by someone else. When Ms. Clark told Mr. Best she did not want the policy, and requested him to cancel it, he asked her to wait awhile, for some reason which was unclear to her. Instead, she indicated to him then that she did not want to do so but wanted her money back. Some time after this discussion, but before the policy was cancelled, Mr. Best came to see her and though she cannot recall if he got her to sign anything, she identified her signature on a letter to the company which had issued the annuity policy in question , which indicated that she was satisfied with the policy and withdrawing her request to cancel. She recalls Mr. Best requesting that she sign the letter, but cannot recall what he said at the time. As she remembers, he appeared normal when he came to see her, and she voluntarily signed the letter of her own free will. It is obvious, however, that Ms. Clark did not understand what was being said to her or what she was signing because, she claims, she still wanted the policy cancelled. Her recollection of the incident is shaky - and unsure. She cannot recall if Mr. Best made her sign the letter, and she cannot recall where she signed it. It may have been at her home or at some other location, but she does not know for certain. In addition, she cannot recall if the letter was typed when she signed it, or if the paper was blank. Though she contends Mr. Best tried to keep her from cancelling this annuity policy, at this time she cannot recall what he told her; what reasons he gave her; or why he wanted her to wait. Whenever she dealt with Mr. Best, he was not rude to her. She did not feel she was being forced by him to take out any insurance from him or to do any of the things or sign any of the documentation that she did. Ms. Clark filed the complaint against Mr. Best because she was told by someone that he had forged her name on a check. At the time she signed the complaint, and at the time of the hearing, she did not know whether he did it or not, nor does she know which check he is supposed to have forged. In fact, Ms. Clark finds it difficult to recall much of what had happened and is not sure of any of the facts to which she testified. She does know, and it is found, that all the money she paid to Mr. Best was reimbursed to her and she has lost nothing as a result of her dealing with him. Ms. Clark recalls that about this time, upon the advice of her attorney, Mr. Kanetsky, she engaged in dealings with another insurance agent who advised her to cancel the annuity policy and, in fact, wrote the letter of cancellation to the insurance company for her. Mr. Kanetsky, an attorney practicing in Venice, Florida, has worked with Ms. Clark for approximately ten years, primarily in the area of estate planning for her and her sister. Over the years, he has discussed with Ms. Clark various insurance policies and other financial products, and is aware of the insurance dealings involved in this case which he learned about from his discussions with his client. He claims that in August or September, 1988, Ms. Clark called his office and solicited advice from him as to how she could get rid of an insurance policy she did not want. He advised her to come in with all her papers to discuss it and at their first meeting, found that she had purchased the $30,000.00 annuity on the life of a niece, and also a health policy, from Respondent. The annuity policy was a single premium annuity, and the health policy had a $1,200.00 premium, for both of which, she had written checks. During this discussion Ms. Clark was quite sure that she did not want to keep the annuity policy. She was somewhat confused about the health policy, but was also satisfied that she didn't want it, though she could not elaborate why. Due to Ms. Clark's conditions, both financial and otherwise, Mr. Kanetsky felt she would be better off in a liquid position rather than having such a large annuity outstanding, and since she apparently wanted to cancel both policies, he agreed to help her. To do so, he first contacted an individual in the insurance business who was aware of Mr. Best and his operation. Upon advice of this individual, Mr. Kanetsky then contacted the insurance company on which the annuity policy had been written and requested that it be cancelled. Mr. Kanetsky also referred Ms. Clark to another insurance agent to get the health policy cancelled and a new policy issued. He also contacted Mr. Best to have him refund the $400.20 difference between the $1,200.00 which Ms. Clark had paid in as a premium on the health policy, and the $799.80 which had been refunded to her by the company when the first policy was cancelled. There is some misunderstanding as to how that first $799.80 check was handled. On its face, the check reflects it was sent to Ms. Clark who, in turn, endorsed it over to Mr. Best to be applied toward another policy. Mr. Kanetsky, on the other hand, indicates the check, though addressed to Ms. Clark, was actually sent to Mr. Best, who had Ms. Clark endorse it and who applied it to another policy. In any event, since Ms. Clark wanted that policy cancel led and apparently intended to do no further business with Mr. Best, Mr. Kanetsky requested that Best refund all monies paid. Mr. Best immediately issued his check for $400.20. The insurance company, apparently concluding it had sent the first check to Mr. Best by mistake, issued another check to Ms. Clark in the amount of $799.80, which represents the actual premium cost, with the balance being the agent's legitimate commission. Since Mr. Best had already forwarded his check for $799.80, when the second insurance company check was received it was immediately refunded to Mr. Best. The $30,000.00 paid in for the annuity policy was refunded to Ms. Clark directly by the insurance company. Mr. Kanetsky contends that notwithstanding he had written to Mr. Best to advise him to stay away from Ms. Clark, there is some indication that Best thereafter came to Ms. Clark's residence to discuss the annuity policy with her. Mr. Best does not deny having gone to Ms. Clark's home on several occasions; once to talk to her about the health and accident policy, and another time, to talk about the annuity. In both cases, however, this is a standard practice in the insurance industry, suggested by the company, to attempt to "conserve" the business by making a follow-up call in an effort to dissuade a policy holder from cancelling. It is found that no improper pressure was applied by Mr. Best in his efforts to conserve his sales. Over his years of experience with Ms. Clark, Mr. Kanetsky has found that she confuses easily, and though she is competent, she is extremely limited in business experience and understanding. She does not have a guardian of her property, but is clearly not equipped emotionally to handle many of her financial affairs. It is found that her recollection of the incidents in question here is so poor as to render her testimony almost irrelevant and without merit, and though she is quite sure she did not want the insurance she bought, and attempted to cancel it, she is totally unsure of the circumstances surrounding her relationship with Respondent and the details of any conversations and transactions she may have had with him. Consequently, her testimony, the only direct testimony regarding the issue of what transpired between her and Mr. Best, is, for all purposes here, worthless. Mr. Best denies threatening Ms. Clark or attempting to coerce her into purchasing insurance from him. When he saw her in August, 1988, it was the first time he had seen her for a while and had, in fact, forgotten about her until she came into his office to file a claim. At that point, he made an appointment with her for a review of her policy status. At that time Ms. Clark had no Medicare coverage, (she does now), and he offered to attempt to get her medical coverage, to which she agreed. She wrote a check for a policy to be issued by American Sun Life Insurance Company which, subsequently, rejected her. When the rejection came through, Mr. Best immediately notified her of that fact and told her then he would convert to another company, to which she agreed. Mr. Best is satisfied Ms. Clark understood he would apply the refund check he received from American Sun to the second policy issued by United American Life, and he did this. She thereafter cancelled that policy. After Mr. Best received notice of the cancellation, he went to her home to explain everything to her. At no time, however, did he threaten her, a fact to which she agrees. He claims she had received the initial refund from united American for $799.80, which she agreed he could apply toward a policy with another company, and she voluntarily endorsed the check over to him. She also cancelled this second policy. With regard to the annuity policy, when she notified the company that she was cancelling it, he received notice of this from the home office which suggested he do what he could to conserve the business. When he went to see her about it, she agreed, he claims, that she would keep the policy. At that time he wrote out, by hand, a note to be signed by her indicating her satisfaction with the policy and her desire it be maintained. When the company thereafter indicated it preferred a typed statement to that effect, he went to her with a typed notice which said the same thing, and which Ms. Clark signed. No threats were made, and Ms. Clark agrees to this. Mr. Best also sold an insurance policy to an Ann Ward, which she cancelled for a reason totally unrelated to the Respondent. When Mr. Best found out she had cancelled the policy, he went to see her to inquire as to her reasons. At that time, as in all her dealings with him over a period of time, he was not, and she has never found him to be, overbearing, unprofessional, or coercive. In all their transactions together, he has always fully explained his product, and on the basis of their relationship, she would be happy to deal with him again. When Ms. Ward cancelled her policy, the company wrote to Mr. Best and advised him of this fact and that he must refund a portion of the premium which it had paid to him as a commission. When he received this letter, he called the company and authorized it to withhold from the amount owed to him for renewal commissions, any amount the company claimed as reimbursement. He claims to have believed this procedure, a standard action within the industry, satisfied his obligation to the company. He was, therefore, quite surprised when the company complained and he immediately wrote a check to the company to cover the balance due it which is now paid in full. However, the evidence of record shows he was sent several notices of delinquency, even several for the balance after he authorized the company to take his earned commissions, without his taking any action and the company ultimately, on December 22, 1988, terminated his agency. His failure to pay over is found to be more negligent than willful, however. Mr. Best has been in the insurance business since 1979 and claims he has had no prior administrative complaints filed against him since that time. The Department showed none.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Counts I and II of the Administrative Complaint relating to the Respondent, Michael Eugene Best, be dismissed; and that as to Count III, he pay an administrative fine of $500.00. It is further RECOMMENDED that Mr. Best's applications to represent World Insurance Company, Travellers Life Insurance Company, and American Integrity Insurance Company be denied, such denial to be without prejudice to re-filing of the applications at a later time to be set by the Department. RECOMMENDED this 15th day of February, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, as to all of the Proposed Findings of Fact submitted in this case. FOR THE PETITIONER; 1. - 3. Accepted and incorporated herein. Accepted and incorporated herein. -10. Accepted and incorporated herein. 11.-14. Accepted and incorporated herein. 15.&16. Accepted and incorporated herein. 17. Accepted and incorporated herein, with the understanding that the failure to deal with American Sun Life was not due to any misconduct of Respondent but because of the Company's rejection of Ms. Clark. 18.-20. Rejected as not supported by the evidence. 21.-24. Accepted and incorporated herein. 25.-27. Rejected as not supported by the evidence. 28.-31. Accepted and incorporated herein. 32.&34. Accepted and incorporated herein. 35. Accepted and incorporated herein. COPIES FURNISHED: C. Christopher Anderson, III, Esquire Office of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Michael E. Sweeting, Esquire Pflaum, Dannheisser and Sweeting, P. A. 100 Wallace Avenue, Suite 210 Sarasota, Florida 34237 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue to be determined is whether Respondent violated section 626.611(5), (7), (9), and (10), and section 626.621(6) and (9), Florida Statutes (2002), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of insurance agents in the State of Florida, and is responsible for administering the disciplinary provisions of chapter 626, Florida Statutes, pursuant to section 20.121(2)(g) and (h). Respondent has been licensed as a life, including variable annuity and health, agent (2-15), life, including variable annuity, agent (2-16), and a life and health agent (2- 18) at all times relevant to this proceeding. During the period relevant to these proceedings, Respondent was the president of BCMI, Inc. Pamela Johnson was employed by the Volusia County Sheriff's Department and on duty when she was involved in a motor accident on I-95 on September 4, 1998. Ms. Johnson was injured in the accident and was unable to continue working as a result. Ms. Johnson filed suit against the company owning the truck that hit her, and in 2000 received a compensatory award of approximately $650,000. She hired an investment advisor to handle the award, and placed her funds in a money market account. Until that time, she had no prior investment experience. Ms. Johnson describes herself as a person who wants to take very few risks with her money. She wanted all of her investments to be very safe and conservative. In 2002, she spoke to Respondent regarding possible investments. She was acquainted with Respondent through her sister. After Respondent met with her at her home, she decided to remove $100,000 from her money market account and invest in an annuity that Respondent was offering. She received a check for $100,000 from the money market account and signed it over to Respondent. Respondent assisted her in filling out an application for an annuity. He then deposited the check into his business account. Respondent did not, however, actually purchase the annuity with the funds entrusted to him. Ms. Johnson did not receive any paperwork regarding her purchase of the annuity, other than her initial application, and asked Respondent when she would receive the paperwork. At first, Respondent told her that he had received his copy and she should receive hers in the mail. She did not. Ms. Johnson called Respondent repeatedly and made several appointments with him between June and October, 2002, in order to obtain more information regarding her investment. Ms. Johnson was finally able to meet with Respondent in October of 2002, and learned for the first time that Respondent had not purchased on her behalf the annuity for which she had applied. Instead, he decided (without input from her) to use the money in a real estate investment. He represented to her that she had already made $5,000 on her investment. At this time, Respondent told Ms. Johnson that if she still wanted to purchase an annuity, she would have to write him another check. She did so, this time directly to Transamerica Life and Annuity instead of to Respondent. She has since moved the management of that annuity to another insurance agency. Ms. Johnson continued to seek documentation for her first investment, to no avail. She told Respondent she needed some documentation in order to complete her taxes, so in February 2003, he showed her a sheet of paper entitled "Account Summary," which listed her two investments. The first investment was her annuity with Transamerica Life and Annuity. The second investment is entitled "Corporate Note," with "real estate" in parenthesis, an identification number (which is her social security number), and an account balance of $105,000. The document stated at the bottom below Respondent's name and address, "**No taxes are due on these accounts at this time." Despite multiple contacts by both Ms. Johnson and a friend of Ms. Johnson, no further documentation regarding her investment has ever been provided. Finally, in May of 2004, Respondent told Ms. Johnson that an employee of the real estate company had embezzled all of the funds and that her entire investment was lost. Both the Financial Industry Regulatory Authority (FINRA) and Ms. Johnston eventually filed complaints with DFS regarding Respondent's handling of her first $100,000 investment. Respondent has offered several payment plans to Ms. Johnson over the years, but he has never actually returned any money to her. He did not have her permission to invest in a real estate transaction. He only had permission to purchase an annuity.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services enter a Final Order finding Respondent guilty of violating section 626.611(5), (7), (9), and (10) and section 626.621(6); revoking his license; and requiring that he make restitution to Pamela Johnson in the amount of $100,000 pursuant to the authority in section 626.692. DONE AND ENTERED this 23rd day of June, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 23rd day of June, 2011.
Findings Of Fact Petitioner was found guilty of breaking and entering in 1974, and was charged with burglary and attempted escape in 1976. The burglary charge was, upon adjudication reduced to trespassing and too attempted escape charge was dropped. Respondent's license application form contains the question, "Have you ever been charged with or convicted of a felony?" Details are required if a "yes" answer is given. Petitioner disclosed the 1974 breaking and entering conviction but did not include either of the 1976 charges or the 1976 misdemeanor conviction. However, this was not an attempt by Petitioner to withhold information, but was rather a misunderstanding of the request to list all felony charges regardless of disposition and not merely those involving felony convictions. Petitioner's reputation for truthfulness was attested to by the police officer who arrested him in 1974 and 1976, and monitored his subsequent rehabilitation. Petitioner readily admitted the acts for which he was arrested in 1974, and has never been otherwise known to lie. Petitioner, who was 26 years old at the time he filed his application in April of 1980, has overcome his earlier difficulties. Since 1976, he has completed a drug therapy program, taken mental health technician courses at a community college, and worked as a counselor and supervisor in a community mental health facility. He is currently a convenience store manager in Fort Pierce, and recently trained part-time with a local insurance agency in anticipation of licensing.
Recommendation From the foregoing, it is RECOMMENDED that the application of Ricky D. Brown for filing for examination as ordinary-combination life including disability agent be granted. DONE and ORDERED this 10th day of December, 1980, in Tallahassee, Leon Country, Florida. R. T. CARPENTER 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 10th day of December, 1980. COPIES FURNISHED: Mr. Ricky D. Brown 601 North 15th Street Fort Pierce, Florida 33450 Leon Rolle, Esquire Office of Treasurer and Insurance Commissioner 220 Larson Building Tallahassee, Florida 32301
Findings Of Fact James Edward Snapp is licensed by the Department of Insurance as an Ordinary Life, including Disability Agent, Dental Agent and Disability Agent and was so licensed at all times in 1981 and 1982 in his dealings with Mrs. Mabel McCarthy and Mr. George Guertin. In July 1981 Respondent went to the apartment of Mabel McCarthy, a 79- year-old widow, and talked to her about insurance. His visit was unsolicited and Mrs. McCarthy initially told him she had adequate coverage with her Medicare, Medicaid and Blue Cross. Respondent discussed the issuance of a "gold" card which provided better coverage than she was presently receiving. They also discussed her $1,000 life insurance policy for which she had designated the Haven School in Miami as beneficiary. When she indicated she would also like to leave something to another school in Palm Beach County, Respondent suggested she cancel the $1,000 policy and take out two $5,000 policies and make each school beneficiary of one policy. Following Respondent's assertions to Mrs. McCarthy regarding her taking out different insurance policies, Mrs. McCarthy gave Respondent her check on 26 July 1981 in the amount of $1,100 made payable to Accident & Health Agency, the agent for whom Respondent worked. Mrs. McCarthy understood this to be the premium payment for the life insurance and hospitalization insurance policies. Respondent told Mrs. McCarthy the cash surrender value of her life insurance policy should be about $900. When she wrote Mutual of Omaha about the cash surrender value, she was advised it was nearer $700 and the company questioned her reasons for cancelling the policy. This aroused Mrs. McCarthy's suspicions and she called the Insurance Commissioner's branch office to inquire about Respondent. Up until this time she had full confidence in Respondent. In the application for health insurance for Mrs. McCarthy which Respondent subsequently submitted 12 July 1981 to American Sun Life Insurance Company, he checked the "no" square to the question "Is the insurance applied for intended to replace any insurance presently in force?" knowing he had suggested to Mrs. McCarthy this policy would replace her Blue Cross insurance policy. The total premium on these policies, one providing for medical expenses and the other providing for nursing home care, is $530. American Sun Life Insurance Company does not sell life insurance. On 28 July 1981 Respondent again visited Mrs. McCarthy, obtained her check in the amount of $380 made payable to Accident & Health Agency, and submitted an application to American Sun Life Insurance Company on behalf of Mrs. McCarthy which provides hospital and medical benefits. On this application he also checked the "no" square to the question about replacing existing insurance. The annual premium for this policy was $370. Mrs. McCarthy also gave Respondent a check in the amount of $500 payable to Accident & Health Agency for additional policies. Before this check had been cleared, Mrs. McCarthy received the first policies Respondent had sold her and realized they were no different from her prior coverage, no "gold" card was included and neither was a life insurance policy. Upon receipt of these policies on 11 August 1981 Mrs. McCarthy stopped payment on the $500 check and again called the Insurance Commissioner's office. When the Insurance Commissioner contacted American Sun Life Insurance Company with Mrs. McCarthy's complaint, they refunded $900 to Mrs. McCarthy for the policies they had issued. Those policies were for the maximum coverage Sun Life provides. The three policies issued by Orange State Life Insurance for various health care benefits were those applied for when the $500 check was written by Mrs. McCarthy and these policies were cancelled when payment was stopped on that check. The total premium for these policies was $449.99 plus a $26 policy fee. Respondent obtained the name of George Guertin as a potential client and called him for an appointment to discuss insurance. Upon arrival 18 January 1982 shortly after the phone call, Respondent looked at two policies Guertin showed him covering Medicare Supplemental payments on Guertin and his wife. These policies were issued by Tara Life Insurance Company. Respondent told Guertin that the agent who sold him these policies had charged top price and he could get these policies for him at a lower premium. The premium paid on the policy issued to George Guertin was $482 and the premium on the policy issued to Alma Guertin was $445. Respondent was not authorized to solicit policies for Tara. Guertin gave Respondent his check payable to J. Snapp in the amount of $540 to renew the two policies with Tara Life Insurance Company. Guertin also gave Respondent his life insurance policy issued on John Hancock Mutual Life Insurance Company to inquire about the cash surrender value. This policy was later returned to Guertin without change. Respondent's testimony that the $540 was for services he was to provide the Guertins in preparing Medicare claims and that the Guertins understood this at the time the check was signed, is not credible. George Guertin was born in Canada in 1903 but has lived in the United States for 65 years. Although he went to school in Canada through the eighth grade, he does not read English. George's brother Eme apparently lived with the Guertins and was disabled. Respondent offered to take Eme to the Veteran's Administration to get his disability pension increased. He was paid $250 for this service and for taking Eme to the VA on other occasions. Guertin testified that the signature on Exhibit 12 was not his signature and that on Exhibit 13 was not his wife's signature. Respondent testified that these "contracts" were signed by George Guertin and Alma Guertin in his presence. Regardless of the validity of the signatures, these "contracts" provide that compensation [of Respondent] shall be determined by mutual agreement. There was no mutuality of agreement that the $540 paid by Guertin to Respondent was for services to be rendered by Respondent in completing Medicare forms. When Guertin was advised by Tara Life Insurance Company that his policies were about to lapse for nonpayment of premiums, he realized Respondent had not renewed these policies as he was told Respondent would do, he complained to the Insurance Commissioner's office, and he sent premium payments to Tara. Respondent suffered injuries while serving in the Marine Corps in Korea. He was discharged with a 35 percent disability rating in 1955 and since that time he has been treated from time to time in VA facilities. He has had several heart attacks, five according to Respondent's testimony, and takes a wide variety of medication. In his testimony Respondent admitted that he only sold insurance and left the doing of the paperwork associated with these policies to the agency for whom he works. He does not keep records of his insurance transactions because he has a "real tough time" doing so. He leaves those chores to the agency.
