The Issue Whether Petitioner, acting on behalf of June Rosacker, is entitled, pursuant to Chapter 717, Florida Statutes, to the $37,281.25 in the Department of Banking and Finance's (Department's) Unclaimed Property Account Number 00963-1981- 00026, which was derived from the Department's sale of five $5,000.00 Florida Development Commission Sunshine Skyway Revenue Bonds, numbers 2114, 2115, 2116, 2117, and 2118, that Gulfstream Bank, N. A., had turned over to the Department as unclaimed property.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made to supplement the "Stipulated Facts" set forth in the parties' Prehearing Stipulation: June Rosacker (Mrs. Rosacker) is the widow of Richard Rosacker (Mr. Rosacker). She and her late husband were married for 38 years before he passed away on October 11, 1995. Mr. and Mrs. Rosacker lived in a residence on the premises of Floral Acres, a commercial nursery located at 109 Northeast 17th Street in Delray Beach from 1961 until 1978. It was their first marital residence. Mr. Rosacker was the Vice President of Operations of Floral Acres until 1969, when he resigned his position. Mr. Rosacker's resignation coincided with his cousin, Arthur Rosacker, Jr. (Arthur Jr.), succeeding Arthur Rosacker Sr. (Arthur Sr.), Arthur Jr.'s father and Mr. Rosacker's uncle, as President of Floral Acres. Mr. Rosacker and Arthur Jr. did not get along with each other as well as Mr. Rosacker and Arthur Sr. did. Mr. Rosacker started his own business in 1970. Arthur Sr. executed his Last Will and Testament (Arthur Sr.'s Will) in 1971. Mr. Rosacker was not named a beneficiary in Arthur Sr.'s Will. Arthur Sr. passed away on April 4, 1978. Sometime in the 1970's, Mr. Rosacker received at his and Mrs. Rosacker's Floral Acres residence correspondence from a bank, which was not Mr. and Mrs. Rosacker's "regular bank," advising Mr. Rosacker that the bank was holding $25,000.00 in "funds" in his name. 1/ Mr. Rosacker thought "the bank must have made a mistake." He had no knowledge of the "funds" which were the subject of the bank's correspondence. Mr. Rosacker went to the bank (which was located in Boca Raton) for the purpose of letting the bank know that the "funds" were not his. Upon his return, he told Mrs. Rosacker that had taken care of the matter by telling the bank "it was not his money, he didn't put any money in the bank, and he knew nothing about it." In 1981, Boca Raton-based Gulfstream Bank, N.A. 2/ (Gulfstream) reported to the Department that it was holding as unclaimed property five $5,000.00 Florida Development Commission Sunshine Skyway Revenue Bonds, numbers 2114, 2115, 2116, 2117, and 2118, (Bonds in Question) that had been left in a safe deposit box, number 3228, rented in the name of a "Richard Rosacker" whose address was not "on file" at the bank. 3/ Gulfstream's report to the Department further indicated that the "date of [the] last transaction" involving safe deposit box number 3228 was May 5, 1971. On this date, according to the report, the lessor of the box was Fort Lauderdale-based American National Bank and Trust Company (which subsequently merged with Gulfstream). The bonds were remitted to the Department, which sold them for a total of $37,281.25. At no time did either Mr. or Mrs. Rosacker rent a safe deposit box from American National Bank and Trust Company or Gulfstream. At no time did either Mr. or Mrs. Rosacker purchase Florida Development Commission Sunshine Skyway Revenue Bonds. On May 18, 1984, Mr. Rosacker executed a Declaration of Trust, which provided, in pertinent part, as follows: ARTICLE I TRUST CORPUS This Trust shall consist of the original TEN DOLLARS ($10.00) contribution and additional assets may be contributed by me or by any other person. All trust assets shall be listed on the SCHEDULE OF ASSETS attached hereto, may be comprised of property of any kind and character, including insurance benefits of any nature, and may be added by inter vivos or testamentary transfer, or otherwise at my demise. Any asset registered in the name of the Trust or Trustee 4/ shall be presumed to be a part of this Trust, whether such asset is listed on the SCHEDULE OF ASSETS or omitted therefrom, it being my intent to expand rather than restrict the list of assets held in this Trust. . . . ARTICLE V DISPOSITION AT SETTLOR'S DEMISE-RESIDUARY TRUST PROVISIONS If my wife, JUNE WEBB ROSACKER, survives me, I direct my Trustee to fund into "Trust B" provided under paragraph B the largest amount, if any, that can pass free of Federal estate tax under this instrument by reason of the unified credit and the state death tax credit, reduced by property passing outside this instrument which does not qualify for the marital or charitable deduction in computing Grantor's federal estate tax. The values as finally fixed for Federal estate tax purposes shall govern the funding of this Trust. The balance of my estate I give outright to my wife, June Webb Rosacker. . . . ARTICLE VI APPOINTMENT OF TRUSTEE . . . Upon my demise my wife, JUNE WEBB ROSACKER and my friend, MARVIN SALINE, shall be appointed the Trustees of all shares of this Trust. Should MARVIN SALINE be unable to serve as Trustee, my brother, HANS DONALD ROSACKER shall be appointed Trustee. . . . Should neither of the foregoing be able to serve as Trustee with my spouse then she shall appoint as Trustee a corporate fiduciary. The "Declaration of Trust's" "Schedule of Assets" was left blank. On September 23, 1988, Mr. Rosacker executed an Amendment to Trust Agreement, which provided, in pertinent part, as follows: I hereby amend Article VI, Paragraph A to provide that if my spouse cannot serve as Trustee, then my daughters, JANICE and ELLEN, shall serve as Trustees, or either shall serve as sole trustee if one cannot serve. I then amend Paragraph B to appoint my spouse and my daughters, JANICE and ELLEN, (or either if one cannot serve) as Co-Trustees at my demise. I therefore revoke all reference to MARVIN SALINE and HANS DONALD ROSACKER as potential Trustees, . . . . On May 18, 1984, the same day he executed the Declaration of Trust, Mr. Rosacker also executed a Last Will and Testament, which provided, in pertinent part, as follows: ARTICLE III I give to my beloved wife, JUNE WEBB ROSACKER, in fee, all clothing, jewelry, household goods, personal effects, automobiles and other tangible personal property not otherwise specifically bequeathed by Will, Codicil or Separate Writing, except cash on hand, owned by me at the time of my death. . . . ARTICLE V All the rest, residue and remainder of the property which I may own at the time of my death, real, personal and mixed, tangible and intangible, of whatsoever nature and wheresoever situated, including all property which I may acquire or become entitled to after the execution of this Will, . . . , I bequeath and devise to the Trustee of that Trust Agreement executed by me on , 1984, said assets to be held IN TRUST as part of the Trust Estate as that term is used in said Trust Agreement as further amended at time prior to my death. . . . ARTICLE VI I hereby appoint my wife, JUNE WEBB ROSACKER, to be my Personal Representative of this my Last Will and Testament. . . . Fred Goodman is a Florida-licensed private investigator who does business as Eyes and Ears Investigative Services. He has been "involved in abandoned property matters" for the past nine years. In February of 1994, Mr. Goodman visited Mr. and Mrs. Rosacker at their home in Oveido, Florida, to seek authorization to file a claim with the Department, on behalf of Mr. Rosacker, to recover the proceeds of the sale of the Bonds in Question. Mr. Rosacker declined to give Mr. Goodman such authorization. He told Mr. Goodman that, although he believed that the bonds "were put in the bank for him by his uncle," Arthur Sr., "it was a situation in which he was not going to be able to prove that he owned the funds" and that therefore it would be a "waste of time" for him to pursue the matter. Following Mr. Rosacker's death in 1995, Mr. Goodman entered into an agreement with Mrs. Rosacker in which Mrs. Rosacker agreed to "appoint Eyes and Ears Investigative Services . . . an irrevocable Limited Power of Attorney to proceed on [her] behalf in accordance with [the recovery of the $37,281.25 in assets described in the agreement]; [and] to perform any and all acts, including but not limited to the execution of any and all documents, for and on behalf of [her], as may be required in order to effect the recovery and disbursement of said assets to Eyes and Ears Investigative Services Escrow Account." The agreement provided that, "for full compensation of its Services," Eyes and Ears Investigative Services would be "assigned a fee of 30% [of] said assets." Although it has been almost six years since Mr. Rosacker has passed away, his Last Will and Testament has not yet been probated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order rejecting Petitioner's claim that Mrs. Rosacker is entitled to the proceeds of the Bonds in Question. DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 4th day of October, 2001.
The Issue Whether Respondent violated various provisions of the Insurance Code, specifically Sections 626.561(1), 626.611, 626.621 and 626.9521, Florida Statutes, which warrants that Respondent's licenses as an insurance agent should be disciplined.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: 1. Respondent was, at all times pertinent, licensed as a general lines agent and health agent in Florida 2 Respondent was the registered agent, sole director and officer of Sunshine State Insurance of Manatee, Inc. As a result of her corporate capacity, Sheryl Ann Satterfield is responsible for actions of employees working under her direct supervision and control. FINDINGS REGARDING COUNT I On or about April 5, 1991, Respondent's employee solicited an application for automobile insurance from Miguel A. Coronado of Bradenton, Florida. The automobile insurance was to be provided by the Nu-Main of Florida Agency. At this same time, the premium for the automobile insurance was quoted as $414.00 for a six month coverage. After being informed of the premium amount, Mr. Coronado paid Respondent's employee $146.00 in cash as a down payment on the premium. Receipt #6557 was issued which acknowledged receipt of said premium. On or about April 26, 1991, Mr. Coronado received a cancellation from Instant Auto Credit stating that his automobile was an unacceptable vehicle. After receiving this notice, Mr. Coronado went to the Sunshine State Insurance office to discuss the cancellation with Respondent. Respondent refused to refund the $146.00 premium to Mr. Coronado. Respondent never forwarded the $146.00 premium funds received from Mr. Coronado to Nu-Main of Florida. Further, Respondent failed, and refused to refund the premium to Mr. Coronado upon demand. Respondent misappropriated funds held in trust for her own use and benefit. FINDINGS REGARDING COUNT II On or about November 26, 1990, Jodi Spencer of Sarasota, Florida went to Respondent's agency for the purpose of obtaining automobile insurance. Ms. Spencer made a premium down payment of $197.00 on a quote of $697.00 annual premium. Respondent's employee issued receipt #7874 which acknowledged receipt of the $197.00 premium down payment. The auto insurance was to be provided by Nu-Main of Florida, Inc., and American Skyhawk Company. On February 11, 1991, American Skyhawk Insurance Company sent Ms. Spencer a cancellation notice. Respondent was to return $24.50 of unearned commission to Ms. Spencer which she failed to do. FINDINGS REGARDING COUNT III On or about December 31, 1990, Matthew Baker of Bradenton, Florida, went to Sunshine State Insurance Agency to obtain automobile insurance. At this time, Matthew Baker paid a down payment of $197.00 on an annual premium of $1,313.00. The insurance was to be provided by First Miami Insurance Company. Respondent's agency issued receipt #6851 upon receipt of the aforementioned premium down payment. On January 31, 1991, First Miami Insurance Company sent Mr. Baker a cancellation notice. At the time of cancellation Respondent was to return an unearned commission of $154.60. Respondent has failed to return $154.60 in unearned commission to Mr. Baker. FINDINGS REGARDING COUNT IV On or about January 11, 1991, Edwin Soto of Bradenton, Florida, was cancelled by First Miami Insurance Company with whom he had an existing automobile insurance policy. Edwin Soto had purchased this First Miami Insurance Company policy from Respondent. (Testimony of Edwin Soto). As a result of this cancellation Mr. Soto is owed $70.61 from Respondent which she has failed to return to him. FINDINGS REGARDING COUNT V In January 1991, William M. Woodyard of Bradenton, Florida, met with Respondent to renew his general liability and worker's compensation insurance. At this same time Mr. Woodyard gave Respondent his premium down payment. During the latter part of 1991, Mr. Woodyard went to Sunshine State Insurance of Manatee, Inc. to obtain a copy of his worker's compensation policy. Upon Mr. Woodyard's arrival, he met with Joe Money, President of Sunshine State Insurance Group, Inc. No record of insurance or coverage for Mr. Woodyard or his company existed. Previously, Capital Premium Finance Company had issued two return premium checks to Mr. Woodyard. Respondent deposited Mr. Woodyard's return premium checks into the Sunshine State Insurance Agency's checking account in the total amount of $440.80. Mr. Woodyard was entitled to receive a premium refund check and unearned commission check from Respondent. Mr. Woodyard did not receive any premium refund or unearned commission funds from Respondent.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Respondent's licenses as an insurance agent in this state be REVOKED. DONE and RECOMMENDED this 20th day of October, 1992, at Tallahassee, Florida. DANIEL M. KILBRIDE 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 20th day of October, 1992. APPENDIX The following constitute specific rulings, pursuant to Section 120.59 (2), Florida Statutes, upon the parties respective proposed findings of fact (PFOF) Petitioner's PFOF: 1. - 27. Accepted in substance. Respondent's PFOF: Respondent did not file proposed findings of fact. COPIES FURNISHED: Willis F. Melvin, Jr., Esquire Daniel T. Gross, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, Florida 32399-0300 Ms. Sheryl Ann Satterfield P.O. Box 333 Polk City, Florida 33868 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issues are whether Respondent's licenses as an insurance agent should be disciplined, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant to these proceedings, Respondent was eligible for licensure and licensed in Florida as a life insurance agent and a life and health insurance agent. Respondent has been licensed to sell insurance for 23 years. He has no history of a prior disciplinary action being filed against his licensure. Over the years, Respondent has won several awards in his profession. Counts I and II In March 1985, Respondent sold Joel and Kay Majors a whole life insurance policy, Sun Life Assurance Company of Canada (Sun Life) policy No. 9007333. This policy, with a specified face amount of $200,000, insured the life of Joel Majors. The monthly premium on this policy was $258.83. In June 1989, Respondent sold the Majors a last- survivor whole life insurance policy, Sun Life policy No. 5978802. The purpose of the second policy, with a face amount of $500,000, was to pay estate taxes after the death of the last survivor of Mr. and Mrs. Majors. The annual premium on this policy was $4,585.00. Respondent represented to the Majors that the policy premiums on the second Sun Life policy, policy No. 5978802, would be paid using accumulated cash and dividends from the first Sun Life policy, policy No. 9007333. Respondent explained to the Majors that they would never have to pay out-of-pocket premiums on the second policy. Based on Respondent's representations, the Major's believed that Sun Life policy No. 9007333 would generate sufficient cash and dividend values to pay the premiums on Sun Life policy No. 5978802. Respondent did not explain to the Majors what it would mean for them to use the cash value of one policy to pay the premiums on another policy. The cash value of a whole life insurance policy is essentially the amount the policy owner may borrow against that policy. Because the cash value is determined by the amount the policy owner has paid on the policy, use of the cash value is an interest-bearing loan to the policy owner. The loan does not have to be repaid at any particular time, but in the event of a claim or surrender of the policy, proceeds from the policy are reduced by the amount of the loan plus outstanding interest. In November 1991, Respondent sold the Majors a third whole life insurance policy, Sun Life policy No. 9247770. This policy insured the life of Joel Majors in the face amount of $200,000. The Majors never received a copy of this policy. The monthly premium on this policy was $404.83. Each year, when the annual premium for Sun Life policy No. 5978802 was due, Respondent presented Joel Majors with blank forms entitled Policy Service Request. Joel Majors signed the forms without realizing that they authorized interest-bearing loans to be taken out of the cash value of policy No. 9007333 and on one occasion out of policy No. 9247770. These loans were made without the knowledge or informed consent of the Majors. Respondent never mentioned the word "loan" to the Majors. The Majors would never have purchased the Sun Life policy No. 5978802 with the understanding that the premium would be paid with interest-bearing loans from their other policies. All annual premiums on Sun Life policy No. 5978802, except one annual premium, were paid from loans made against Sun Life policy No. 9007333. Page 6 of Sun Life policy No. 9007333 states as follows in relevant part: Interest on all policy loans will accrue from day to day at the rate of 8 percent per annum, and shall be due and payable on each policy anniversary. Any unpaid interest will be added to the principal amount of the policy loan and will bear interest at the same rate and in the same manner as the policy loan. We will accept repayment of any policy loan at any time before the maturity of this policy. When the policy proceeds become due, we will deduct the balance of any outstanding policy loans and accrued interest on such loans, from that amount. If your policy loan balance ever equals or exceeds the net cash value, this policy will terminate 31 days after we mail notice to your last known address . . . . One loan was made against Sun Life policy No. 9247770. According to page 6 of the Sun Life policy No. 9247770, the company sets the policy loan interest rate annually according to the provisions contained therein. The Majors were not aware that any funds from this policy would be used to pay premiums on any other policy. Sometime in 1997, the Majors learned about the loans on policy Nos. 9007333 and 9247770. They realized for the first time that loans were used to pay the premiums on Sun Life policy No. 5978802. The Majors never intended to authorize interest- bearing loans that would deplete the death benefit of one policy to pay policy premiums on another policy. Respondent testified at the hearing that loans from Sun Life policy Nos. 9007333 and 9247770 were used to pay the premiums on Sun Life policy No. 5978802. However, his testimony that the loans were made with the knowledge or informed consent of the Majors is not persuasive. The Majors were not knowledgeable about insurance policies. They placed their trust in Respondent to handle their insurance transactions. Often the Majors did not open mail from the insurance company containing statements about their policies. Count III In July 1990, Respondent sold the Majors a flexible premium deferred annuity, Financial Benefit Life Insurance Company (Financial Benefit) policy No. 818249, with a maturity date of July 13, 2010. The initial deposit for the annuity was $25,000. Later in the year, the Majors deposited an additional $10,000 in the annuity. Respondent promised the Majors that if the interest rate on the annuity dropped, he would "roll-over" the annuity to obtain a higher rate. Respondent also promised that he would pay any penalties associated with the transaction. Respondent did not explain the definition of a "roll-over" to the Majors. In February 1994, Respondent withdrew a portion of the funds (the $10,000 contribution plus accumulated interest) from the Majors' Financial Benefit annuity, policy No. 818249. He used the funds to purchase the Majors a second annuity, Financial Benefit policy No. 707450, with an initial contribution in the amount of $12,503.43. Although the second annuity had a higher interest rate, Respondent made this purchase without the Majors' knowledge or informed consent. Respondent received a commission on this unauthorized transaction. Financial Benefit issued the second annuity but a copy of the policy was never delivered to the Majors. Respondent never disclosed its purchase to the Majors. In 1996, the Majors complained to Respondent that the interest rate had dropped on what they believed was their one Financial Benefit annuity. At that time, the original annuity was worth the initial $25,000.00 contribution plus interest or approximately $33,000.00. Respondent requested the surrender of the remaining funds in the original annuity, Financial Benefit policy No. 818249, to purchase the Majors a third annuity, Financial Benefit policy No. 712937. Financial Benefit assessed a surrender charge in the amount of $2,250.00. Subsequently, on October 10, 1996, Financial Benefit issued policy No. 712937 to the Majors with an initial contribution of $33,477.60 and an October 10, 2016, maturity date. Respondent purchased the third annuity without the knowledge or informed consent of the Majors. The Majors did not receive a copy of the third annuity. Respondent received a commission on this unauthorized transaction. The Majors were not aware that Respondent had purchased the second and third annuities. They continued to believe that they had only one annuity, the one purchased in 1990, which had been "rolled over" to obtain a higher interest rate. However, they eventually became aware of the $2,250.00 surrender charge assessed by Financial Benefit. They complained to Respondent and reminded him of his promise to pay all penalties. Respondent then purchased two money orders from Capital City Bank in the total amount of $2,250.00. Respondent mailed the money order to Financial Benefit with instructions for the company to deposit the funds into the annuity. Knowing that the insurance company would not permit Respondent to make personal contributions to the Majors' annuity, Respondent signed the name of Joel Majors on the money orders. Joel Majors had no knowledge of the money orders and did not authorize Respondent to sign his name. If the Majors had known that Respondent was going to "roll-over" their original annuity by using its funds to purchase two new policies with different maturity dates, they would never have agreed to the transactions regardless of higher interest rates. Instead, they would have let their original policy mature and take their money out for placement in another investment vehicle. Counts IV and V In 1985, Respondent sold Joel and Kay Majors a $50,000.00 life insurance policy, Sun Life policy No. 9009995D. The policy insured the life of the Majors' son, Timothy Majors. About ten years later, Esther Majors, wife of Timothy Majors, was employed as a travel agent. As a full-time employee, Esther Majors was entitled to $110.00 per month from her employer's benefit plan. The money was available to Esther Majors for savings because she did not need to participate in her employer's health insurance plan. Esther Majors could use the money to purchase an Individual Retirement Account (IRA) or other comparable investment. Timothy and Esther Majors sought Respondent's assistance in setting up an appropriate investment for Esther Majors' funds. Respondent first met with Esther Majors' employer to discuss the retirement account. The employer and Respondent discussed using the money to fund a self-directed IRA or annuity that could be rolled over later if Esther Majors changed jobs. Respondent also met with Timothy and Esther Majors. They discussed setting up what Timothy and Esther Majors believed would be an IRA with a monthly contribution of $110.00 for as long as she worked full-time for the same employer. Respondent did not set up the IRA for Esther Majors. Instead, in January 1995, Respondent submitted an application to Time Insurance Company (Fortis) for an adaptable life insurance policy insuring the life of Esther Majors and naming Timothy Majors as the beneficiary. Respondent submitted the application without the knowledge or informed consent of Timothy and Esther Majors. Esther Majors either did not read the application when she signed it or did not understand that she was signing an application for life insurance as opposed to an IRA annuity. Respondent requested that Fortis issue the policy with a face amount of $69,533.00 and with a monthly premium in the amount of $110.000. Fortis issued the policy as policy No. 985698. Timothy and Esther Majors never intended to purchase a life insurance policy. Respondent did not discuss life insurance with Timothy and Esther Majors at any time. Esther Majors could have purchased life insurance through her employer. Thus, Respondent misrepresented the nature of the insurance product that he sold to Timothy and Esther Majors. On or about July 15, 1995, Timothy Majors informed Respondent that Esther Majors would temporarily cease making the $110.00 contribution to what he believed was Esther Majors' IRA because she was going to college and would no longer be working full-time as a travel agent. Timothy Majors assured Respondent that, upon graduation, Esther Majors intended to resume payments and roll her IRA over to a new employer. Respondent replied that Timothy and Esther Majors needed to continue saving for their future. He also told Timothy Majors that the company where Esther's money was invested required a minimum deposit per year in order not to lose the money already deposited. Respondent asked Timothy Majors for a check in the amount of $60.00. Timothy Majors gave Respondent the check. On or about October 25, 1995, Respondent requested a loan for $270.00 to be made from Timothy Majors' Sun Life insurance policy No. 9009995D. Respondent requested this loan without Timothy Majors' knowledge or informed consent. Sun Life mailed a check payable to Timothy Majors in the amount of $270.00 to Respondent's office. Respondent then obtained Timothy Majors' signature endorsement on the check without explaining that the funds would be used to pay the quarterly premium on Esther Majors' Fortis insurance policy. Timothy Majors signed the check unaware that it represented a loan on his Sun Life insurance policy. Respondent used the Sun Life check in the amount of $270.00 and, together with Timothy Majors' check for $60.00, paid another quarterly premium on Esther Majors' Fortis insurance policy in the amount of $330.00. Neither Timothy nor Esther Majors authorized Respondent to make this payment. No further premium payments were made for Esther Major's Fortis insurance policy. Respondent never told Timothy and Esther Majors that the policy would lapse if they stopped paying the premiums. The policy was too new to have any cash value. As a result, the life insurance policy eventually lapsed. Esther and Timothy Majors lost all of the funds used to pay premiums on a life insurance policy that they never knew they owned. Count VI In 1995, Kay Majors arranged for Respondent to sell an annuity to her mother, Bernice Langford. During the initial meeting between Ms. Langford and Respondent, he was informed that Ms. Langford was born on February 5, 1918, and that her age was 77. Respondent filled out an application for a Financial Benefit flexible premium deferred annuity for Ms. Langford. Because Ms. Langford's age made her ineligible to purchase the annuity, Respondent misrepresented her date of birth as February 5, 1928, and her age as 67 on the application. Financial Benefit issued a $60,000.00 annuity, policy No. 711110, to Ms. Langford. Respondent received a commission for selling the annuity to Ms. Langford. Thereafter, Kay Majors became aware of inaccuracies in her mother's age and informed Respondent about them. Respondent indicated that he would take care of the problem. Respondent later sent a letter to Ms. Langford representing that he had notified the company about her correct age and had the records corrected. Although Financial Benefit sells annuities to people up to 100 years old, it would not have issued the annuity in question to Ms. Langford had it known her correct age. The company is aware of the age discrepancy and has not rescinded the annuity. Count VII In 1993, Respondent sold a Sun Life modified benefit whole life insurance policy, policy No. 9292231, to Cheryle Hayes Wood Burch (n/k/a Cheryle Hicks.) This policy had an initial face amount of $91,443.00 and a monthly premium of $100.00. In 1995, Respondent advised Ms. Hicks that he had found her a better policy through Fortis, with identical coverage and premium. Respondent presented the replacement policy to Ms. Hicks as if he had already switched the policies and only needed her signature on some paperwork. Respondent indicated that Ms. Hicks' Sun Life policy had no cash value. Ms. Hicks had not requested that Respondent replace her Sun Life policy. However, she trusted him to act in her best interests. Respondent told Ms. Hicks he would take care of everything. At Respondent's request, Ms. Hicks signed an insurance application dated May 16, 1995. Ms. Hicks either did not read the application before signing it, did not understand what she read, or signed a blank application form presented to her by Respondent. Subsequently, Fortis issued an adaptable life insurance policy, policy No. 994725, to Ms. Hicks. The new policy had a face amount of only $50,000, even though the premium was identical to the Sun Life policy. Ms. Hicks was not aware that her new policy had a reduced face amount. Respondent received a commission on this transaction. Ms. Hicks believed her new Fortis policy had a $100,000 death benefit. She never intended to purchase a replacement policy with only a $50,000.00 death benefit. Respondent misrepresented the terms of the replacement policy for the purpose of receiving a commission. Counts VIII and IX Respondent sold a Sun Life permanent life insurance policy, policy No. 9216228, with a face value of $33,805.00 to Faye Thompson Hoover. Sun Life issued the policy in November 1990. Respondent also sold a Financial Benefit annuity, policy No. 819862, to Ms. Hoover. Financial Benefit issued the policy in November 1990. In December 1993, Respondent urged Ms. Hoover to cancel her Financial Benefit annuity, policy No. 819862, and purchase a new Financial Benefit annuity. Ms. Hoover did not understand why she should purchase the new annuity, but she trusted Respondent and followed his advice. The new annuity was purchased and issued as Financial Benefit policy No. 707176 in January 1994. In 1996, Respondent urged Ms. Hoover to let him cancel her Sun Life policy No. 9216228 and deposit the funds into her Financial Benefit annuity, policy No. 707176. She agreed. Respondent did not cancel Ms. Hoover's Sun Life policy. Instead, he requested Sun Life to issue a loan for the maximum amount allowable for a loan against the Sun Life policy No. 9216228. Sun Life subsequently issued Ms. Hoover a check in the amount of $4,800.00, which represented a loan against the cash value of the policy. Respondent requested the loan without Ms. Hoover's knowledge or informed consent. Sun Life mailed the $4,800.00 check to Ms. Hoover. Upon receipt of the check, Respondent told Ms. Hoover that the proceeds represented the cash value of her Sun Life policy. Based on Respondent's representations, Ms. Hoover incorrectly believed that her Sun Life policy had been cancelled and that the company had sent her the policy's cash value. Respondent's representations regarding Ms. Hoover's Sun Life policy were false. At no time did Respondent disclose that the check she received was a loan against the cash value of her policy and that the policy was still in effect. Next, Respondent requested Sun Life to stop the monthly draft on Ms. Hoover's bank account that paid the premium on her Sun Life policy. He did this by falsely advising Sun Life that Ms. Hoover had changed her bank account. Because the premium payments had ceased and a new bank authorization was never received by Sun Life, the policy lapsed, but only after exhaustion of the policy's remaining cash value. Ms. Hoover became aware that funds in her Sun Life policy had been exhausted when she received a letter dated August 26, 1996, from the company. When Ms. Hoover confronted Respondent about leaving money in her Sun Life account, he told her he would get her funds back. However, he never did secure a refund of the exhausted funds. In the meantime, Ms. Hoover deposited the $4,800.00 Sun Life check into her bank account. She then wrote a check to Respondent for $4,000.00, with instructions for him to deposit the money into her Financial Benefit annuity, policy No. 707176. Respondent accepted the check but did not follow Ms. Hoover's instructions. Rather, he submitted an application to Financial Benefit for an IRA annuity without Ms. Hoover's knowledge or informed consent. He also sent Financial Benefit Ms. Hoover's $4,000.00 check. Financial Benefit issued the IRA annuity, policy No. 712086, with Ms. Hoover as the annuitant. Ms. Hoover never received a copy of the annuity. Respondent received a commission on this transaction. Count X In 1992, Elizabeth R. Maxwell discussed her retirement needs with Respondent. She wanted to invest her funds so that a portion of it would be available to her in five years. She wanted the balance of her funds to be available in seven years. Ms. Maxwell told Respondent she wanted to be able to retire around age 59. Respondent suggested that Ms. Maxwell invest her money in annuities. He was aware that Ms. Maxwell knew very little, if anything, about annuities and that she was relying on his expertise and experience to assist her in making investment decisions. In April 1992, Respondent sold Ms. Maxwell a Financial Benefit IRA annuity, policy No. 823703, with a maturity date of 2012. Ms. Maxwell subsequently deposited $10,947.95 into this annuity as the original contribution. Respondent received a commission for the transaction. Respondent also sold Ms. Maxwell a Financial Benefit regular annuity, policy No. 823568, with a maturity date of 2012. Ms. Maxwell deposited $90,000.00 into this annuity as the original contribution. Respondent received a commission on the transaction. The maturity date of an annuity is the date on which annuity payments begin. In December 1992, Ms. Maxwell gave Respondent $30,000.00 for deposit into what she thought was one of her two existing annuities. Respondent used the money to purchase a USG Annuity and Life Company (USG) annuity, policy No. 128153, without Ms. Maxwell's knowledge or informed consent. This annuity matures in 2042. In January 1993, Ms. Maxwell gave Respondent $50,000.00 for deposit into what she thought was one of her two existing annuities. Respondent used the money to purchase a USG annuity, policy No. 132140, without Ms. Maxwell's knowledge or informed consent. This annuity matures in 2043. In April 1996, Ms. Maxwell gave Respondent $74,672.57 for deposit into what she thought was one of her two existing annuities. Respondent used the money to purchase an additional Financial Benefit annuity, policy No. 712410, without Ms. Maxwell's knowledge or informed consent. This annuity matures in 2016. Respondent received a commission on this transaction. In April 1996, Respondent, without Ms. Maxwell's knowledge or informed consent, cancelled her Financial Benefit annuity, policy No. 823703. He then transferred $18,927.30, representing the surrender value, into a new Financial Benefit annuity, policy No. 712497. The new annuity's maturity date was 2016. Respondent received a commission on this transaction. In May 1996, Respondent, without Ms. Maxwell's knowledge or informed consent, cancelled her Financial Benefit annuity, policy No. 823568. He then transferred $166,182.69, representing the surrender value, into a new Financial Benefit annuity, policy No. 712548. The new annuity matures in 2016. Respondent received a commission on this unauthorized transaction. In November 1996, Ms. Maxwell gave Respondent $25,000.00 for deposit into what she thought was one of her two existing annuities. Respondent used the funds to purchase an additional Financial Benefit annuity, policy No. 713242, without Ms. Maxwell's knowledge or informed consent. The new annuity matures in 2016. Respondent received another commission. Sometime in 1996, Ms. Maxwell became confused and concerned about her annuity investments. Ms. Maxwell asked her accountant for assistance in determining the status of her investments. She took her accountant boxes of documents containing insurance company statements and other insurance correspondence. Some of the documents were in unopened envelopes. The accountant's investigation, which took place over a six-month time period, revealed at least seven annuities. The accountant also determined that the insurance companies had assessed surrender fees on some of the transactions. Ms. Maxwell was shocked at the result of her accountant's investigation. She was unaware of any annuities other than what she understood to be her two Financial Benefit annuities. The accountant requested that Respondent provide copies of Ms. Maxwell's annuities. Respondent did not provide the copies. At the request of the accountant, Respondent signed a statement that he would personally pay any penalties if surrender charges were assessed. Respondent reimbursed Ms. Maxwell for some of the surrender charges. However, Respondent never provided Ms. Maxwell's accountant with documentation accounting for reimbursement of about $6,000.00 in surrender charges. After Ms. Maxwell's accountant became involved, Respondent asked the accountant to approve the "roll-over" of an annuity. The accountant requested information about the old policy and the new policy before making a decision. Respondent refused to provide the information. Respondent told the accountant that he knew more about insurance than the accountant. Respondent stated that the accountant needed to attend to his business and that Respondent would take care of the insurance side of it. The accountant and Respondent have had no subsequent conversations. As of the date of the final hearing, Respondent had not provided Ms. Maxwell or her accountant with sufficient documentation to account for all of her investments. Until November of 1996, Financial Benefit paid its agents commissions on the sale of annuities at the time of the original deposit and on each subsequent contribution. In November 1996, Financial Benefit notified its agents that no commission would be paid for additional contribution into annuities after the third policy year. After Ms. Maxwell learned that Respondent had invested her funds in more than two annuities and despite Respondent's failure to cooperate with the accountant, Ms. Maxwell continued to trust Respondent to invest her money in annuities. She did so with the understanding that each new transaction would increase the interest she would earn. Ms. Maxwell did not understand the effect the new transactions would have regarding penalties and maturity dates. In February 1997, Respondent, without the knowledge or informed consent of Ms. Maxwell, cancelled Ms. Maxwell's USG annuity, policy No. 132140. He then transferred $58,309.01, representing the surrender value, into a new Financial Benefit annuity, policy No. 713549. The new annuity, on which Respondent received a commission, has a maturity date in 2017. In July 1997, Ms. Maxwell gave Respondent $2,005.11 for deposit into an annuity. Respondent used the funds to purchase an additional Financial Benefit annuity, policy No. 714186, without Ms. Maxwell's informed consent. The new annuity matures in 2017. Respondent received another commission. In October 1997, Ms. Maxwell gave Respondent $15,189.66 for deposit into an annuity. Without Ms. Maxwell's informed consent, Respondent used the funds to purchase a USG annuity, policy No. 529581. This annuity matures in 2014. Respondent received a commission. In January 1998, Ms. Maxwell gave Respondent $2,000.00 for deposit into an annuity. Without Ms. Maxwell's informed consent, Respondent used the funds to purchase a Financial Benefit annuity, policy No. 714865. This annuity matures in 2013. Respondent received a commission. In January 1998, Respondent, without Ms. Maxwell's informed consent, cancelled her USG annuity, policy No. 128153. He then transferred $38,498.43, representing the surrender value, into a new Financial Benefit annuity, policy No. 714866. The new annuity, on which Respondent received a commission, has a maturity date in 2013. Ms. Maxwell received a copy of only one of the many policies that Respondent purchased on her behalf. In 1996 or 1997, Respondent took that policy from Ms. Maxwell, telling her the company was going to adjust it and give it back to her. He never gave the policy back to Ms Maxwell. Respondent obtained Ms. Maxwell's signature each time he purchased an annuity on her behalf. On some occasions Ms. Maxwell thought she was signing a form to deposit additional funds into her original two annuities with Financial Benefit. Sometimes Ms. Maxwell did not know what she was signing because she did not see the whole page or did not read the document first. Respondent would tell her he was in a hurry and she should just sign next to the "X." Respondent told her he would date it later. On other occasions, Respondent told Ms. Maxwell that he was "rolling over" an existing fund into a new fund. He told her the "roll-over" would give her a higher interest rate but that nothing else would change. He said that everything would mature at the same time, otherwise Ms. Maxwell would not have agreed to the "roll-over." Respondent told Ms. Maxwell that there would be no penalties and that he did not get paid commissions. At times Ms. Maxwell signed documents referencing the surrender of annuities and associated penalties. On those occasions, Ms. Maxwell thought she was surrendering the annuities so that they could be rolled over. She trusted Respondent's representation that the penalties were not true penalties. None of the annuities that Respondent sold to Ms. Maxwell or purchased in her name had maturity dates in five to seven years from the date of the original transactions. Respondent never disclosed that the annuities would mature between fifteen and forty years from the purchase date. Consequently, the annuities would not have reached maturity, making her funds available for retirement free of any surrender charge in time for her to retire at age 59. Count XI In 1991, Respondent met with Dr. Charles Moore to discuss the purchase of life insurance as a part of Dr. Moore's estate planning needs. Dr. Moore told Respondent that he wanted to be able to retire in about ten years with about $1,000,000.00 in life insurance. As a result of this discussion, Respondent sold Dr. Moore a Sun Life permanent life insurance policy, policy No. 9245964, with a face amount of $250,000.00 and a monthly premium of $788.28. Respondent also sold Dr. Moore a Sun Life permanent life insurance policy, policy No. 9241898, with a face amount of $250,000.00, and a monthly premium of $876.61. This policy had a renewable term rider with an additional benefit amount of $250,000.00, with a premium in the amount of $88.33 for the first year. The premium on the term rider would increase over time. Respondent told Dr. Moore that in approximately ten years, the policies would have sufficient cash value to pay the premiums from their dividends. Respondent stated that the policies would then be "paid-up" that Dr. Moore would no longer have to pay premiums. Respondent told Dr. Moore that at some point in time, the term rider on Sun Life policy No. 9241898 would have to be cancelled because the premium would become too expensive. Dr. Moore would not have purchased these policies but for Respondent's representations. In December 1994, Respondent sold Dr. Moore a Fortis life insurance policy, policy No. 985470, with a face amount of $500,000 and an annual premium in the amount of $13,000.00. Dr. Moore needed additional insurance to cover potential estate taxes on family-owned real estate in another state. Respondent represented that the policy premiums on the Fortis policy would be paid entirely from dividends from Dr. Moore's Sun Life policies without depleting the cash value of those policies. Dr. Moore would not have purchased this policy but for Respondent's representations. Contrary to Respondent's representations, the dividends on Dr. Moore's Sun Life policies, in and of themselves, were not sufficient to pay the premiums on his Fortis life insurance policy. Instead, without Dr. Moore's knowledge or consent, Respondent submitted loan requests for a series of loans on the cash value of Dr. Moore's Sun Life policies, policy Nos. 924564 and 9241898, from 1995 through 1998. The loans against the Sun Life policies, including principle and interest, total in excess of $52,000.00. When Dr. Moore received checks for the loan proceeds from Sun Life, he would endorse them and give them to Respondent. Dr. Moore thought he was endorsing dividend checks. Respondent used the proceeds from the loans to pay the annual premiums on Dr. Moore's Fortis policy. The loans do not have to be repaid at any certain date. However, the amount of the loans, principal and interest, will be subtracted from the death benefits of the policies in the event of a claim or from the value of the policies in the event of surrender. At the time of the hearing, Dr. Moore either had surrendered his Sun Life policies or was in the process of doing so. He was paying for his Fortis policy on a monthly basis. Count XII At all times pertinent herein, an agent's agreement was in effect between Canada Life Assurance Company (Canada Life) and Respondent. In 1994, Respondent sold Mack Wallace Womble a Canada Life whole life insurance policy. Respondent received commissions on the initial and subsequent premiums paid on this policy. Mr. Womble never received a copy of his policy from the insurance company. Eventually, Respondent complained to Petitioner on Mr. Womble's behalf. Petitioner then directed Canada Life to refund all of Mr. Womble's premiums plus interest. The company complied with this directive and rescinded the policy. There is no evidence that Respondent was responsible for Canada Life having to refund Mr. Womble's premiums. There is evidence that the lengthy dispute over the delivery of the policy involved the company, the company's regional representative, and Mr. Womble. The record contains no business record documenting Canada Life's demand that Respondent refund all commissions paid to him for Mr. Womble's policy. Canada Life's representative/record custodian testified that the company had made such a demand at some unknown point in time. Her testimony, in and of itself, is not competent evidence that the company made a formal demand and that Respondent received that demand. However, Respondent admitted in a deposition that he has not refunded the premiums because cancellation of the policy was the company's fault, causing him to lose a valuable client. Respondent's Producer's Contract with Canada Life states as follows in relevant part: PART I GENERAL CONDITIONS * * * 3. REPAYMENT OF INDEBTEDNESS - The company, at its discretion, may: (a) deduct any commissions or other obligations of any nature payable to the individual Producer or estate, or any of their assigns under this or any other Contract with the Company or; (b) require the Producer or estate to pay to the Company on demand any outstanding balances arising from chargebacks, deductions, adjustments and reversals under the terms of this or any other Contract with the Company regarding such income as, but not limited to, commissions. In the event that this Contract is terminated for whatever reason, all outstanding balances shall be immediately due and payable. * * * PART II CONDITIONS GOVERNING PAYMENT OF REMUNERATION * * * 1. In the event that the Company deems it necessary to refund a premium for a policy, the Producer, if called upon by the Company, shall repay on demand any remuneration received by him in connection with such policy. Canada Life's representative/records custodian testified that the subject Producer's Contract was terminated in 1996. There is no business record in evidence to support that testimony. According to Respondent's official licensure records, the contract between Canada Life and Respondent was "not renewed" in 1997.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order revoking Respondent's insurance licenses. DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 25th day of August, 2000. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 William M. Furlow, Esquire Katz, Kutter, Haigler, Alderman, Marks Bryant & Yon, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32302-1877 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner, Angela Williams (Petitioner or Ms. Williams), was properly enrolled in the Florida Retirement System (“FRS”) Investment Plan upon the expiration of her election period after she was employed by the Department of Corrections (“DOC”) in March 2019.
Findings Of Fact Stipulated Facts Petitioner was employed by the Seminole State College of Florida, in an FRS-eligible position, from 1990 through 1998. At that time, the Pension Plan was the only retirement program available for eligible employees. In 2002, the Investment Plan became available for employees participating in the FRS. Petitioner was not employed in an FRS-eligible position at that time. Petitioner began employment with DOC, an FRS-participating employer, in March of 2019. Following her return to FRS-eligible employment, Petitioner was provided an initial choice period with a deadline of December 31, 2019, by 4:00 p.m., Eastern Time, to elect the Pension Plan or the Investment Plan. Since the Plan Choice Administrator received no election from Petitioner by the December 31, 2019, deadline and Petitioner was not employed in a Special Risk Class position, Petitioner was enrolled in the Investment Plan. Respondent has no record of Petitioner utilizing an election during her initial choice period. On or about January 24, 2020, Petitioner submitted a Request for Intervention (“RFI”) asserting that she had been “erroneously enrolled in the Investment Plan” and requesting that she be “placed back into the Pension Plan, along with any choices associated with that plan.” Petitioner asserted she thought she should have defaulted into the Pension Plan, since she had been previously enrolled in that plan during her 1990-1998 employment. Petitioner’s RFI was denied. On February 24, 2020, Petitioner filed a Petition for Hearing disputing that “it was compulsory to make an election” and that the default into the Investment Plan was “erroneously done.” She alleged that “Florida Statutes 121.4501(4)(b) and 121.4501(4)(f) [we]re incorrectly quoted” in the response to her RFI, and that her “login and activity are not being correctly recorded.” An informal proceeding pursuant to section 120.57(2) followed. At the informal hearing, Petitioner stated that, “on May 27th [2019], the website [MyFRS.com] indicated that I was in the Pension Plan and if I wanted to stay in the Pension Plan, that I should not have to make an election.” On December 14, 2020, the Hearing Officer issued an Order of Transfer to DOAH, citing Petitioner’s statements at the hearing, such as quoted in the preceding paragraph, as raising a disputed issue of material fact. This proceeding thus ensued. Facts Adduced at Hearing Ms. Williams testified that upon her employment with DOC, she received a letter by U.S. Mail at her listed address with a PIN to establish an online FRS account. She then logged onto MyFRS.com on or about May 27, 2019. She testified that she also logged into her MyFRS.com account in the fall of 2019. She stated that during both logins, she was presented with a screen that informed her that she was enrolled in the Pension Plan. She also testified that the login screen included a statement that if she intended to remain in the Pension Plan, she did not need to do anything further. However, there was no screenshot or extrinsic evidence offered in evidence to corroborate that testimony. Ms. Williams’s testimony alone is insufficient to support a finding of fact as to the substance of any logged-in online activities. Furthermore, Ms. Olson testified credibly that a screen providing information as described by Ms. Williams does not exist in the SBA system. Ms. Williams further testified that the next communication she received from SBA by U.S. Mail came in January 2020, informing her that she was enrolled in the Investment Plan. Ms. Williams called the number provided in the mailed notice on January 13, 2020, and spoke with Graham, an FRS plan administrator. Ms. Williams advised Graham of her belief that she was erroneously enrolled in the Investment Plan. By that time, the election period had passed. Graham indicated that he would investigate the matter. On January 22, 2020, Ms. Williams received a message to call Graham. She did so, but the call was “dropped.” She called back and spoke with Carrie. That call was transcribed and is in the record of this proceeding. The transcript of that call reveals that none of the parties to the call had a precise explanation of or answer for the events. It would not be inaccurate to say that Carrie and the MyFRS.com financial guidance representative who joined the call were uncertain about the circumstances of Ms. Williams's account. However, there was no statement made by either of the FRS representatives that could be construed as being contrary to the position SBA has taken in this case. More to the point, since the call was placed on January 22, 2020, after the election period had expired, the discussion between Ms. Williams and the persons on the call could not have formed the basis for any reliance or change in position detrimental to Ms. Williams. Ms. Williams believed that certain of her keystrokes while on her two visits to the MyFRS.com website were not recorded by the transaction server, which she surmised was the result of errors in the system. She testified to her belief that “Alight [the SBA contractor] has a -- quite a serious issue with communication -- with communication defaults, with losing communication between MyFRS.com website and the transaction server. It’s happened to me, you know, several times. So, I -- I don’t believe that you can trust what is being printed by Alight as being accurate.” However, there was no testimony or evidence of such beyond Ms. Williams’s speculation. Evidence was received of five emails sent from the SBA contractor to Ms. Williams between July 22, 2019, and December 30, 2019, advising her of the deadline for making an election. The emails were sent to an email address that Ms. Williams acknowledged she used. The documentary evidence included read-receipts of Ms. Williams having opened only one of the emails during the election period. Ms. Williams went through each of the emails, explaining why she could not have opened those emails at the times indicated. However, her testimony for three of the emails was intended to show that she could not have opened the emails at the times indicated, though the times indicated were the “sent” times, not the “opened” times. Thus, her testimony that she did not open those emails is credited, though for the reason that she simply did not open them rather than that the time shown for her having opened them was incorrect. The only email for which there is evidence of its having been opened within the election period was sent on October 7, 2019, at 8:03 a.m., and first opened that same date at 7:56 p.m. Ms. Williams had no recollection of reading that email. She testified that the recorded time of her opening it again -- Saturday, October 12, 2019, at 9:27 a.m. -- was unlikely because she “was actually getting a fridge delivered that day. So, I would not have been on the internet reading my e-mail while my fridge was being delivered.” It seems a stretch that anyone would forego checking emails for a full weekend day for a refrigerator delivery. That a read-receipt record would be randomly generated without a document having been opened is implausible. The read-receipt record indicated that the October 7, 2019, email was last opened on January 22, 2020, at 5:16 p.m. Another indicated that an August 15, 2019, email was first opened on January 22, 2020, at 5:21 p.m., minutes before Ms. Williams returned Graham’s call. Ms. Williams indicated that reading the email at that time did not make sense to her, stating “if I had that e-mail and I was going to log -- and I was going to read it, I would have done it after the first phone call on the 13th, not right before I dialed in to talk to Graham.” To the contrary, it seems quite normal for one to review emails from SBA prior to discussing a retirement plan election with an SBA representative investigating the election. The email records are, themselves, hearsay.2 However, they are not accepted by the undersigned for the truth of the matters set forth, i.e., the dates and times that they were sent to and opened by Ms. Williams, but rather for the more general purpose of showing that she had been provided with notice of issues regarding her retirement plan that required attention. Thus, they are accepted and given weight for that purpose. Several notices were also sent to Ms. Williams by U.S. Mail at her correct address. She acknowledged receipt of the letter containing her PIN in May 2019, and the letter informing her that she was enrolled in the Investment Plan in January 2020, but denied having received any of the others. There was simply no credible explanation why notices, mailed in the normal course of SBA’s duties to an address of record, would not have been delivered by the U.S. Postal Service. Regardless of whether emails were or were not read, the enrollment of Ms. Williams in the Investment Plan is controlled by application of section 121.4501, Florida Statutes. Ms. Williams addressed what she believed to be the ambiguity of section 121.4501, particularly subsections (4)(b)1. and (3)(a), which she believed to be “open to an interpretation.” That issue will be addressed in the Conclusions of Law that follow.
Recommendation Upon consideration of the findings of fact and conclusions of law set forth herein, it is RECOMMENDED that the State Board of Administration enter a final order upholding the decision to enroll Petitioner, Angela Williams, in the Florida Retirement System Investment Plan pursuant to section 121.4501(4)(b), Florida Statutes. DONE AND ENTERED this 5th day of April, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2021. COPIES FURNISHED: Ruth E. Vafek, Esquire Ausley McMullen 123 South Calhoun Street Tallahassee, Florida 32301 Angela Atkinson Williams 4237 Trout Avenue Milton, Florida 32583 Ash Williams, Executive Director and Chief Investment Officer State Board of Administration 1801 Hermitage Boulevard, Suite 100 Post Office Box 13300 Tallahassee, Florida 32317-3300
