Findings Of Fact At all times relevant to this proceeding, Respondent, Carl Austin Jorgensen, was licensed by the Petitioner, Department of Insurance, as an ordinary-combination life including disability insurance agent and a solicitor for property, casualty, surety and miscellaneous lines insurance. He has held a license since 1956. During the time in which the alleged violations occurred, Respondent was employed by Simons and Rose Agency, an insurance firm located in Coconut Grove, Florida. Respondent wished to establish an insurance agency with his wife, Maren Jorgensen, who was licensed as a general lines agent. He discussed this with her on several occasions in 1977, but she would not agree. Her consent was necessary since agency applications must be submitted by a licensed general lines agent. On or about August 10, 1977, Respondent prepared and submitted an application for agency appointment to the Florida Joint Underwriters Association (FJUA) . The Association is the successor to the automobile assigned risk plan in Florida and was established to provide insurance coverage to those automobile drivers who are otherwise unable to obtain voluntary insurance coverage. The application was submitted under the name of All Lines Insurance Agency, 222 NorthEast 20th Street, Miami, Florida, and bore the name and signature of Maren Jorgensen, the Respondent's wife (Petitioner's Exhibit 2). The application was actually signed by Respondent, who had forged his wife's name (Petitioner's Exhibit 7). As a licensed general lines agent, Maren Jorgensen held a 2-20 license. This license was required in order to be qualified to sell insurance through the FJUA. Respondent held no such license, and as such, was unqualified to write policies. Upon receipt of the application, the FJUA reviewed it, and having determined that Maren Jorgensen held an appropriate license, assigned Nationwide Mutual Fire Insurance Company to write policies for All Lines' customers. Maren Jorgensen was unaware of the application being filed, and did not consent to the use of her name. At no time did she participate in or otherwise supervise the running of the business. Rather, Respondent himself operated the agency until early 1978, when it ceased to do business. On or about December 23, 1977, Respondent solicited and sold two automobile insurance policies to Lowell McLean, III, a long-time acquaintance. These policies were issued by Nationwide Mutual Fire Insurance Company and were numbered J58721 and J57869 (Petitioner's Exhibits 3 and 5) The applications bore the name and signature of his wife as producing agent. However, the applications were prepared and submitted by Respondent without her knowledge and consent. The Florida Department of Law Enforcement (FDLE) verified that Respondent had forged her signature (Petitioner's Exhibit 7) On or about November 26, 1977, Respondent solicited and sold an automobile insurance policy to Michael J. Halen. This policy was issued by Nationwide Mutual Fire Insurance Company and was numbered J56852 (Petitioner's Exhibit 4). It bore the name and signature of Respondent's wife as producing agent. However, the application was prepared and submitted without the knowledge and consent of Maren Jorgensen. Again, the FDLE verified that Respondent had actually signed her name (Petitioner's Exhibit 7). Two relatively small commission checks were sent by Nationwide to Maren Jorgensen as producing agent for the sale of the three policies. The checks were mailed to the address of All Lines, without the knowledge of the wife. Respondent appropriated one of the checks for his own personal use. His wife accidentally discovered the other in her husband's wallet and then cashed it herself. Respondent sold only three policies involving two customers during his association with All Lines. None of the three transactions resulted in harm or financial loss to either the customers or the insurance company. During the period when the aforesaid events occurred, Respondent and his wife, although living together, were experiencing marital difficulties. In fact, his wife characterized this time-frame as being a "rather stormy period". They are now separated. Respondent acknowledged the charges in the complaint, but attributed these indiscretions to his desire to rehabilitate the marriage by cultivating a successful insurance business with his wife.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Carl Austin Jorgensen's ordinary-combination life including disability insurance license be suspended for a period of eighteen (18) months from the date of the final order entered in this proceeding for those violations of Chapter 626, Florida Statutes (1977) described herein above. DONE and ENTERED this 22nd day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of April, 1981. COPIES FURNISHED: Deborah A. Getzoff, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32301 William A. Meadows Jr., Esquire 6101 SW 76th Street South Miami, Florida 33143
The Issue Whether Petitioner should be licensed as a title agent by the Department of Financial Services?
Findings Of Fact The Parties Ms. Shirley Auxais, the Petitioner, was born on November 20, 1971, in Brooklyn, New York. She is presently a resident of Coral Springs, Florida. Formerly married, Ms. Auxais' married name was Shirley A. Seraphin. The Department of Financial Services, the Respondent, was created by the Florida Legislature in the 2002 Session. Section 20.121, Florida Statutes. It is responsible for taking action on the license application submitted by Ms. Auxais and has been substituted as the Respondent in this proceeding for the Department of Insurance, the agency that issued the notice of denial. See B., 1Note to Section 120.121, Florida Statutes (2002), p. 400. Unemployment Compensation Fraud On February 17, 1998, the State Attorney of the Seventeenth Judicial Circuit filed an information against Ms. Auxais for unemployment compensation fraud, a felony. See Section 443.071(1), Florida Statutes. At the time of the filing, Ms. Auxais' name was Shirley A. Seraphin. The information charged the following: Shirley A. Seraphin from on or about the 13th day of August, A.D., 1995 up to and including the 16th day of September A.D., 1995, . . ., did . . . make a false statement or representation on her Pay Order Card(s), Florida Department of Labor Form UCB60 and/or UCB61, knowing said statement or representation to be false, or knowingly failed to disclose a material fact to obtain or increase benefits or other payments for her or any other person, in that the said Shirley A. Seraphin did knowingly state on her pay order cards that she was unemployed and not earning wages during the aforesaid period, when in fact and truth she was employed . . ., and earning wages which she willfully failed to report, and the said false statement was made or material fact not disclosed with the intent to obtain or increase benefits pursuant to the Florida Unemployment Compensation Law Respondent's Exhibit 3. Ms. Auxais, in the Circuit Court of the 17th Judicial Circuit, in and for Broward County (the "Court") entered a plea of "No Contest" to the charges. On June 18, 1998, Ms. Auxais upon the motion of the State, was ordered by the Court to pay restitution to the Division of Unemployment Compensation "in the total sum of Eight hundred twenty-five and 00/100 ($825)." Respondent's Exhibit 5. On June 18, 1998, an Order of Probation was rendered by the Court in Ms. Auxais' case pursuant to a plea of nolo contendere to Unemployment Compensation Fraud as reflected on the face of the order. Adjudication of guilt was withheld and Ms. Auxais was placed on "18 months mail in probation." Respondent's Exhibit 6. Slightly more than four months later, an order was entered by the Court that terminated Ms. Seraphin's probation. Application for Licensure as a Title Agent On May 13, 2002, Ms. Auxais submitted an application for a new license as a title agent to the Department of Insurance's Bureau of Agent and Agency Licensing. The license applied for, according to the application is "04-10-Resident Title Agent." Respondent's Exhibit 2, p. 7. The application poses a number of screening questions. Two are immediately adjacent to each other in the order that follows: In the past 12 months, have you been arrested, indicted, or had an information filed against you or been otherwise charged with a crime by any law enforcement authority anywhere in the United States or its possessions or any other country. Have you ever been charged, convicted, found guilty or pled guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered. Respondent's Exhibit 2, p. 8. The answer shown on the application to both questions is "N" which stands for "no." Six months later, on November 14, 2002, the Notice of Denial was issued. The factual basis for the denial consists of two interrelated facts. First, Ms. Auxais responded "no" to the question of whether she had ever pled no contest to a crime. Second, Ms. Auxais had pled no contest to Unemployment Compensation Fraud, a felony, in the Circuit Court in and for Broward County. Explanations In the interim between the submission of the application and the denial, Ms. Auxais, in a letter to a Regulatory Consultant at the Department of Insurance, offered "explanations . . . in regard to the cases filed against [her] . . .". Respondent's Exhibit 9, page 25. The first explanation concerns a criminal charge of "larceny by credit card." The charge is not related to the Department's basis for denial. Nonetheless, the explanation sheds light on Ms. Auxais' credibility. It has value to this case, moreover, because Ms. Auxais chose in her testimony at hearing to explain further her written explanation. She did so as she attempted, at the same time, to explain away the false answer on her application with regard to the nolo contendere plea for Unemployment Compensation Fraud, the second explanation in her letter in November of 2002 to the Department of Insurance. The explanation to the unrelated charge (the first explanation offered in the letter to the Department of Insurance) follows: Arrest Date: 3/13/95. Charge: Larceny Credit Card I went shopping with an ex-associate. I was not aware of the fact that she had obtained a credit card and attempted to use it unlawfully. When security began to question the nature of the card she fled the scene and I was held, arrested and charged for Larceny Credit Card. I explained the nature of the incident to the defense attorney appointed to me who suggested I plead no-contest. The courts ruled adjudication withheld. (Respondent's Exhibit 9). With regard to a question about whether her ex-associate had ever been charged with some type of theft crime for the incident, Ms. Auxais testified, "No she was never found. I can't find her to this day." (Tr. 44, 45). The second explanation relates to the felony of Unemployment Compensation Fraud: Arrest Date: 4/29/98 Charge: Fraud/Unemployment I worked for a group of physicians one of whom split from the group. At that time the other physicians felt threatened since I worked directly for the physician who decided to leave and I got fired. During this time I filed for unemployment. While I was on unemployment and receiving benefits the physician gave me a gift (so I thought) in the sum of $400.00. I was not aware that her accountant documented the $400.00 as employment. Some months later after she re-opened her new practice and I resumed working for her I among other employees received a letter from the unemployment office notifying us of unemployment fraud and they demanded repayment of the monies I received in the amount of $800.00. When I explained the situation to the physician she agreed to repay unemployment. I set up a payment plan with unemployment however the physician's accountant did not keep up with the payment which caused me to get arrested for unemployment fraud. (Id.) At hearing, in the midst of elaborating on these two explanations, Ms. Auxais offered an explanation for how it happened that her application had been submitted with the false answer of "no" to the screening question of whether she had ever pled "no contest" to a crime when, in fact, she had pled nolo contendere or no contest to crimes twice. Her explanation in this regard was: I personally did not fill out the application for the title insurance thing on line. My supervisor did it for me[.] [A]t the time that the application was filled out for me on line[,] I was in title insurance training in Tampa . . . But you just don't go around telling everybody that yes I was charged with unemployment compensation fraud after you thought everything was done. I guess the person who filled out the application for me was not aware that I was charged with a felony, so when the question was asked, had I ever been charged with a felony, they checked no. When it came back, I had already signed the last page of that prior to leaving, because you can actually print out the application. The application was sent out with that. (Tr. 30). Before transmitting it to the Department of Insurance, Ms. Auxais did not read the filled-out application. She testified she did not have the opportunity to so "[b]ecause [she] was in the midst of trying to go out of town and [she] was in the midst of trying to get [the] application out for a deadline . . .". (Tr. 64). There are at least two problems with this explanation. Both relate to the declaration that appears above the signature line in the application: Under penalties of perjury, I declare that I have read the foregoing application for licensure and that the facts stated in it are true. Respondent's Exhibit 2, p. 000011 of Respondent's Exhibits. If Ms. Auxais is to be believed, she had not, in fact, read the application with answers before signing it so that her attestation by way of her signature was false. The other problem occurs with her reading of the application after it had been signed, filled out, sent in and discovered by the Department of Insurance to be false. On this point, Ms. Auxais had yet another explanation. This explanation has as its basis Ms. Auxais' reading of the two screening questions quoted in paragraph 10, above. The first of the two has a time frame with regard to the question it asks about criminal arrests or charges. "In the past 12 months," is the predicate to the question. The second question, has no such time limitation. It asks whether the applicant has "ever" pled nolo contendere or no contest to a crime. When confronted by a Department of Insurance employee, "a Mr. Thomas" with the false answer to the second question, Ms. Auxais testified, "I . . . explained to him that even after going back and re-reading everything I would have still said no because the prior question asked within the past 12 months." (Tr. 60, 61). In other words, Ms. Auxais construed the second question to be limited by the time frame of the first so that contrary to its plain inquiry as to whether she had "ever" pled nolo contendere or no contest to a crime, it really asked whether she had so pled within the previous 12 months. Ms. Auxais is a college graduate. She plans to continue her education post-graduate by attending law school and regards employment as a licensed title insurance agent as a stepping stone to a career in law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying Petitioner's application for licensure as a title insurance agent. DONE AND ORDERED this 28th day of April, 2003, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 28th day of April, 2003. COPIES FURNISHED: Shirley Auxais 9022 West Atlantic Boulevard, No. 227 Coral Springs, Florida 33065 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 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent failed to maintain general liability insurance coverage as required by Section 493.6110, Florida Statutes, and, if so, what penalty should be imposed on his Class "A" Private Investigative Agency License and his Class "C" Private Investigator License.
Findings Of Fact Respondent currently holds a Class “A” Private Investigative Agency License, having been issued License No. A96- 00005 pursuant to Chapter 493, Florida Statutes, effective June 15, 1996, and expiring on June 15, 1998. Respondent currently holds a Class “C” Private Investigator License No. C94-00709, issued pursuant to Chapter 493, Florida Statutes, effective January 23, 1997, and expiring on December 7, 1998. As of June 28, 1996, Respondent had general liability insurance coverage relative to his Class “A” license through Scottsdale Insurance Company, West Palm Beach, Florida. This insurance policy expired on June 28, 1997. Respondent currently has insurance coverage relative to his Class “A” license through Costanza Insurance Agency, Inc., Dallas, Texas. The effective period of this insurance coverage is from August 5, 1997, through August 5, 1998. Respondent did not file Form LC2E018, Certificate of Insurance, with the Department as required to evidence that his agency, Jon Bowdoin and Associates, had insurance coverage in force during the period beginning June 29, 1997, through August 4, 1997. Respondent had no insurance coverage relative to his Class “A” license for the period June 29, 1997, through August 4, 1997. Respondent’s Class “A” Private Investigative Agency License was not in an inactive status during the period June 29, 1997, through August 4, 1997.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that Respondent committed the violation alleged in the Administrative Complaint filed herein; (2) imposing an administrative fine of $700.00; and (3) placing Respondent's Class "A" Private Investigative Agency License on one year non- reporting probation. DONE AND ENTERED this 16th day of June, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1998. COPIES FURNISHED: Michelle Guy Assistant General Counsel Department of State, Division of Licensing The Capitol, Mail Station Four Tallahassee, Florida 32399-0250 Jon Bowdoin, Owner Jon Bowin and Associates 3323 U. S. Highway 19 Suite 901 Palm Harbor, Florida 34684 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue in the case is whether Petitioner is entitled to a Resident Independent All-Lines Insurance Adjuster license.
Findings Of Fact On July 24, 1999, Petitioner was involved in a physical altercation in her driveway, defending herself against a female neighbor. Shortly after the altercation, Petitioner was arrested for Aggravated Battery. On January 12, 2000, a Criminal Information was filed against Petitioner charging her with Aggravated Battery Causing Great Bodily Harm. On August 15, 2000, Petitioner pled no-contest to Felony Battery and was placed on two-years' probation. Adjudication of guilt was withheld. Fourteen months later, on October 18, 2001, Petitioner's probation was terminated early without any violations. On March 11, 2002, Petitioner applied for licensure as a Resident Independent All-Lines Insurance Adjuster and provided the prior arrest information in her application. On May 24, 2002, Respondent denied Petitioner's application for licensure on the basis of her single arrest and subsequent plea. On June 18, 2002, Petitioner submitted a timely Election of Proceedings form requesting a formal hearing. Respondent's licensing review committee, composed of the Bureau Chief of Licensing Division, Licensing administrators, the Assistant Division Director of Agent and Agency Services, and a Department attorney, reviewed Petitioner's application and determined that she was unfit and untrustworthy to hold a license. The review committee's decision was based strictly on Petitioner's prior criminal plea and the limited time between her completion of probation and application for licensure. The evidence presented at hearing, however, demonstrated Petitioner's fitness and trustworthiness to hold a license. Petitioner, an African-American, lives in a 50-house subdivision containing approximately three African-American families. On July 24, 1999, Petitioner attempted to enter her driveway but was blocked by a car that was parked in front of her driveway. A Caucasian woman was parked in front of Petitioner's driveway and was reading mail that she had retrieved from the community mailbox located in Petitioner's front yard. Despite having experienced the woman's similar rude behavior 2-weeks prior, Petitioner politely "tooted" her horn to encourage the woman to move her van forward and patiently waited. Shortly thereafter, Petitioner again beeped her horn. In response, the woman glanced at Petitioner, looked away, and refused to move. Thereafter, Petitioner placed her car in park, approached the driver's side of the woman's car, knocked on her window, and said, "I want to go in my driveway." Again, the woman ignored her request and continued to read her mail. Petitioner stated that after further knocking, she opened the woman's door and said, "I don't know you and you don't know me. I want to go into my driveway and I need you to move your van." In response the woman said to Petitioner, "You need to move. I want to close my door." Immediately thereafter, and without warning, the woman pushed Petitioner to the ground, got out of her car and attacked Petitioner. After being repeatedly struck by the woman, Petitioner bit the woman's shoulder in self-defense. Within seconds, the altercation, which Petitioner alleges was racially motivated, ended and the woman drove away. Petitioner ran into her house and relayed the events to her teenage children. Prior to calling 911, Petitioner called her uncle for advice. While on the telephone with her relative, the police arrived at Petitioner's home and she was arrested. Petitioner retained a lawyer to contest the charge. Upon her attorney's advice, Petitioner reluctantly agreed to plead no-contest to the charge, accept two years of probation, and receive a withholding of an adjudication of guilt. Petitioner's probation was terminated after 14 months without incident. Petitioner has never been arrested nor convicted of any crime prior to this incident. Since 1987, Petitioner has been working in the insurance industry in various capacities including claims examiner. She is currently entrusted with large sums of money, successfully works in customer service, and routinely deals with difficult customers in an appropriate and professional manner. Petitioner has been praised by her employers and co-workers and possesses an excellent demeanor. Petitioner has been offered a position as an adjustor trainee with Zurich Insurance Company contingent upon obtaining an adjustor's license. On June 21, 2001, approximately nine months before Petitioner submitted her application, Respondent repealed its law enforcement waiting period rule which outlined the length of time an applicant was required to wait, following a felony plea, in order to qualify for licensure. While Respondent adopted a new law enforcement waiting period rule pursuant to Section 626.207, Florida Statutes, on October 17, 2002, approximately five months after Petitioner submitted her application, Respondent stipulates that the new rule does not apply to Petitioner. In fact, at the time Petitioner submitted her application in March 2002, Respondent stipulates that it operated strictly under Sections 626.611 and 626.621, Florida Statutes. Consequently, Petitioner applied at a time when Respondent admittedly used only the statutes as a basis for denial. Waiting periods were not applied to applications for licensure during March 2002. While Petitioner's Notice of Denial contains a typographical error as to the date on the first page of the letter, the Agent Personal Data Inquiry correctly shows that Petitioner was officially denied on May 24, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order approving Petitioner's application for licensure as a Resident Independent All-Lines Insurance Adjuster. DONE AND ENTERED this 19th day of March, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 19th day of March, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Maria N. Neal 5639 Breckenridge Circle Orlando, Florida 32818-1377 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
