Findings Of Fact The Respondent, Wayne Ashley Bryant, is licensed and eligible for appointment as a life and health agent and a general lines agent in Florida. He was so licensed at all times relevant to the charges against him. At all pertinent times, Mr. Bryant was the registered agent of Automatic Auto Insurance Agency (Automatic Auto). His licensure allowed Automatic Auto to sell insurance to members of the public as a general lines agency. On or about September 12, 1988, Linda Coxon went to Automatic Auto to purchase automobile insurance for her son, who was on active duty in the armed services. After receiving a quote, Ms. Coxon issued a personal check made payable to Automatic Auto in the amount of $321.00 as a premium down payment. Ms. Coxon was given policy binder number 80880147 along with a receipt for her payment, an insurance card, copies of binders and a premium finance agreement. Ms. Coxon never received a refund of her premium nor did she receive any insurance policy for her son, because the insurer never received the application or premium. On or about August 10, 1990, Victoria Rego went to Automatic Auto to purchase automobile insurance. Victoria Rego paid $524.00 as a premium down payment and received an I.D. card naming State Farm as her insurer. Victoria Rego never received an insurance policy nor did she receive a refund of her premium payment. Mr. Bryant and Sandra Bailey were authorized signatures on the Automatic Auto bank account. During the time of the events at issue, Sandra Bailey managed All Eastern Insurance Agency, which operated a number of offices selling insurance. She was not a licensed insurance agent. The problems with processing policies at Automatic Auto resulted from an oral arrangement Mr. Bryant recently had entered into with All Eastern Insurance Agency. Mr. Bryant agreed to supervise the sales force at a number of offices of All Eastern. In return, All Eastern was to process policies sold at Mr. Bryant's agency, Automatic Auto, by sending a runner to pick up the insurance applications and premium payments or down payments, and to process the applications for insurance. All Eastern failed to process policies correctly, often losing application to the detriment of members of the public who had come to Automatic Auto for insurance. Mr. Bryant is the person ultimately responsible for the poor service rendered to clients at Automatic Auto, even though, at the time he began his relationship with All Eastern, he believed they were competent to process insurance applications and premium payments received at the offices of Automatic Auto. When complaints were brought to the attention of Mr. Bryant by the Department, he attempted to rectify them, and cooperated with the Department. Ultimately, he severed his relationship with All Eastern. No complaints about Automatic Auto occured before Mr. Bryant began his association with All Eastern, or are attributable to times since he severed his relationship with All Eastern. There is no proof that Mr. Bryant or Automatic Auto profited from All Eastern's defaults.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Wayne Ashley Bryant be found guilty of the violations set forth in the Conclusions of Law portion of this Order, and that his licenses and eligibility for appointment be suspended for a period of six (6) months. DONE and ENTERED this 28th day of January, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 28th day of January, 1991. COPIES FURNISHED: Willis F. Melvin, Jr., Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, Florida 32399-0300 Wayne Ashley Bryant 1530B Federal Highway Pompano Beach, Florida 33064 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue in the case is whether the application filed by John Stover Mark (Petitioner) for licensure as a resident independent all lines adjuster should be approved.
Findings Of Fact On June 13, 2005, the Petitioner was driving his vehicle and was stopped for unlawful speeding. During the traffic stop, the law enforcement officer discovered that a grand theft warrant had been issued and was outstanding against the Petitioner. Prior to the traffic stop, the Petitioner was unaware of the warrant. The Petitioner was arrested on the warrant and charged with a third degree felony count of grand theft. The Petitioner testified that the charge was related to a claim by his former employer that the Petitioner had stolen tools from a construction job site. According to the Petitioner, he had been employed in the construction industry for many years by the same employer and had become unhappy with the lack of financial support he believed he was receiving from the employer. Eventually, he decided to quit the job and called his employer from the job site to do so. The Petitioner testified that he advised the employer that he was leaving the job and that the tools that belonged to the employer were being left at the job site. The abandoned tools apparently went missing, and the Petitioner was subsequently charged with the theft of the equipment. Although the Petitioner testified that he entered a plea of nolo contendere to the charge upon advice of his public defender, the court records indicate that the Petitioner entered a guilty plea to one count of grand theft, a third degree felony, on July 29, 2005, in Case No. 05-CF-012565, Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. The confusion related to the actual plea entered is immaterial to the disposition of this case. In any event, adjudication was withheld, and the Petitioner was sentenced to make restitution and pay court costs and to complete a five-year probationary period. The probation was terminated by order of the Court after approximately two years after the Petitioner had complied with all other requirements of his sentence. The Petitioner was subsequently injured in an automobile accident and through the services of the Department of Education, Division of Vocational Rehabilitation (DVR), received training for another occupation for which he was physically capable. The Petitioner testified that the DVR provided computer equipment and also funded the educational training that was a requirement for licensure as an insurance adjuster. The Petitioner testified that he disclosed the grand theft felony to his DVR counselor, who was apparently unconcerned or unaware that the felony incident posed an impediment to the Petitioner's prospects for licensure as an insurance adjuster. After completing the relevant training, the Petitioner filed an application for licensure as a resident independent all lines adjuster on July 11, 2007. The application contained the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered. The Petitioner answered the question in the affirmative. The Petitioner truthfully answered other questions on the application related to the felony problem and properly disclosed the relevant information. There is no evidence that the Petitioner has failed to disclose the grand theft incident in response to any inquiry material to this case, or has made any attempt to conceal the matter from the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a resident independent all lines adjuster be denied. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of May, 2008. COPIES FURNISHED: William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 John Stover Mark 8143 Sudbury Drive Port Richey, Florida 34668 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Earle Anthony Bennett, is now and was at all times material hereto licensed by petitioner as an insurance agent in the State of Florida. Pursuant to Chapter 626, Florida Statutes, petitioner has jurisdiction over the insurance licenses and appointments of respondent. On October 17, 1990, respondent entered into a home service agent's contract with The Independent Life and Accident Insurance Company (Independent Life). Pertinent to this case, such contract provided: Article 1. Description of General Duties The Agent agrees to canvass for insurance, to collect premiums as due on the policies assigned to the agency, to aid in the proper settlement of claims, to keep true records of the business on the books, to forward to the Company on Company forms a true account of each week of the agency, and to give full time to the business of the Company. Article 2. Collections The Agent agrees to pay over all monies collected to the District Sales Manager or to such other person as the Company may direct. No money shall be retained by the Agent out of collections for any purpose. The agent agrees that should legal proceedings be necessary to collect monies due from the Agent to the Company the Agent shall pay legal costs and a reasonable attorney's fee. * * * Article 37. Indebtedness Due Company The Company may use any commissions, vacation pay, or other compensation due the Agent to reimburse itself for any indebtedness due the Company by the Agent. In November 1991, respondent terminated his employment with Independent Life, and Independent Life notified petitioner of the cancellation of respondent's appointment as one of its insurance agents. Thereafter, on November 7, 1991, Independent Life conducted an audit of respondent's account which revealed a deficiency of $1,613.70 in insurance premiums collected by respondent and not remitted to the company. Subsequent audits in November reflected an additional deficiency of $213.62, in December an additional deficiency of $178.84, and in February 1992, an additional deficiency of $43.48. By letters of November 18, 1991, November 21, 1991, December 2, 1991, December 13, 1991, and March 18, 1992, Independent Life made demand upon respondent to satisfy the deficiencies disclosed by the audits. Such letters reflected, however, varying amounts the company claimed to be due as a consequence of newly discovered deficiencies in ongoing audits, discussed supra, as well as varying credits accorded respondent. Such correspondence lends credence to respondent's testimony that he was unsure as to the exact sum owing Independent Life, and that he had, subsequent to his termination of employment, remitted funds to the company. Respondent did concede, however, that when he terminated his employment with Independent Life, his account had a deficiency of approximately $1,400. Regarding any deficiency that may have been owing Independent Life, the proof demonstrates that respondent did, over time, satisfy all outstanding obligations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent guilty of the violations set forth in the conclusions of law, and suspending his licenses and eligibility for licensure for a period of nine months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of October 1993. WILLIAM J. KENDRICK 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 22nd day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3885 Petitioner's proposed findings of fact are addressed as follows: 1 & 2. To the extent supported by the proof, addressed in paragraph 1. 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 4. 7 & 8. Addressed in paragraph 5. 9 & 10. Addressed in paragraphs 6 & 7, otherwise rejected as not supported by competent proof. 11. Rejected as a conclusion of law. COPIES FURNISHED: William C. Childers, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0333 Earle Anthony Bennett 12100 North West 11th Avenue Miami, Florida 33168 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Respondent has been licensed by Petitioner as a physician in the State of Florida and has, at all times pertinent to this proceeding, held license number ME0030090. Andy Moya, a law enforcement investigator with the Division of Insurance Fraud of the Florida Department of Insurance, conducted an investigation of Respondent's billings to insurance companies. As a result of this investigation, Mr. Moya executed a probable cause affidavit that led to Respondent's arrest on multiple counts, including four counts of grand theft. Grand theft is a third degree felony. On June 12, 1991, Respondent was arrested pursuant to the arrest warrant that had been obtained by Mr. Moya. On October 8, 1991, Respondent freely and voluntarily entered a plea of nolo contendre to four counts of grand theft. The presiding circuit judge accepted Respondent's plea of nolo contendre, withheld adjudication of guilt, placed the Respondent on probation for a period of five years, and ordered Respondent to pay the Department of Insurance the sum of $1,000.00 and the State Attorney's office the sum of $750.00. A condition of Respondent's probation was that under no circumstances could he bill insurance companies for services he performed. All billings to insurance companies would have to be done by someone over whom Respondent had no control. A plea of nolo contendre to four counts of grand theft for billing insurance carriers for services not rendered is directly related to the practice of medicine. The following facts underlie the criminal charges to which Respondent entered a plea of nolo contendre. PATIENT #1 AND PATIENT #2 Patient #1 and #2 were in a car accident in Hialeah, Florida, and subsequently were referred to Respondent by attorney Richard H. Reynolds. Respondent billed U.S. Security Insurance Company, Inc., a total of $1,995.00 for treating Patient #1 on 41 different dates from January 17, 1990, through May 2, 1990. Patient #1 later testified that she had been treated by Respondent on no more than ten different dates. Respondent assigned to Patient #1 a disability rating of five to six percent permanent/partial impairment. Patient #1 later denied under oath that any disability resulted because of the accident. Respondent billed U.S. Security Insurance Company, Inc., a total of $2,195.00 for treating Patient #2 on 46 different dates from January 17, 1990, through May 7, 1990. Patient #2 later testified that she had been treated by Respondent on no more than ten different dates. Respondent assigned to Patient #2 a disability rating of five to six percent permanent/partial impairment. Patient #2 later denied under oath that any disability resulted because of the accident. On October 25, 1990, Respondent authenticated his medical records and billings on Patient #1 and Patient #2 and affirmed to Mr. Moya that these documents were correct. Respondent's medical records and billings for Patient #1 and Patient #2 were fraudulent. PATIENT #3 On July 13, 1990, Patient #3 was in a car accident. On July 27, 1990, an attorney referred Patient #3 to Respondent. Several days after July 27, 1990, Patient #3 visited Respondent (or any other doctor following the accident) for the first time. Respondent subsequently billed U.S. Security Insurance, Inc., for services rendered to Patient #3 on July 20, 23, 25, and 27, 1990. These billings, in the approximate amount of $300.00, were fraudulent in that they were for services purportedly rendered on dates before Respondent first saw this patient. PATIENT #4 Respondent billed Allstate Insurance Company for services that Respondent purportedly rendered to Patient #4 as follows: office visit on June 26, 1990, and physiotherapy treatments on June 26, 28, and 29, and July 3, 5, 6, and 9, 1990. These billings were fraudulent in that Patient #4 was hospitalized at Coral Gables Hospital from June 26, 1990, to July 11, 1990. Respondent did not provide the services for which he billed Allstate Insurance Company during June and July 1990. On February 6, 1991, Respondent signed an affidavit that provided, in pertinent part, as follows: I have read the attached medical report and bill for services rendered to [Patient #4]. I declare that the treatments indication on the attached medical report and bill for services were provided by me on the dates listed and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. Respondent's billings for Patient #4, in the approximate amount of $300.00, were fraudulent and the affidavit he signed on February 6, 1991, was untrue. Respondent was born in Cuba and graduated from the University of Havana School of Medicine in 1962. Respondent testified at the formal hearing that he was born on May 26, 1919, but the application for licensure submitted by Respondent reflects that Respondent was born May 26, 1924. There was no explanation for this discrepancy. Respondent has been licensed as a physician in the State of Florida since 1977. There was no evidence that Respondent has been previously disciplined by Petitioner. At the time of the formal hearing, Respondent was practicing medicine with Dr. Antonio Ramirez, M.D. Dr. Ramirez is a physician licensed to practice medicine in the State of Florida. Dr. Ramirez was also educated in Cuba, and had known Respondent since the 1970s. Dr. Ramirez is of the opinion that the services rendered by Respondent have been satisfactory. Respondent has no responsibility for submitting bills to patients or to insurance companies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent committed the acts alleged in the Administrative Complaint and which revokes Respondent's license to practice medicine in the State of Florida. DONE AND ORDERED this 7th day of February, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of February, 1994. COPIES FURNISHED: Carlos J. Ramos, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Manuel F. Fente, Esquire 1835 West Flagler Street, Suite 201 Miami, Florida 33135 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the First Amended Administrative Complaint; and If so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent's Licensure Status Respondent is now, and has been at all times material to the instant case, a Florida-licensed life and health insurance agent. Counts I through VI At all times material to the instant case, Peter DeBello, Inc., d/b/a Emery Richardson Insurance (Corporation), a Florida corporation owned by Respondent's father, operated a general lines insurance agency (Emery Richardson Insurance) located in the state of Florida. The Corporation was formed to manage the assets of Emery Richardson, Inc., which assets Respondent's father had obtained through litigation. Respondent's father delegated to Respondent the authority to manage the affairs of the Corporation. The same day (in 1992) that the Corporation took possession of Emery Richardson, Inc.'s assets, it so notified the Department of Insurance (Department) by telephone. Shortly thereafter, Leo Joy, a Florida-licensed property and casualty insurance agent since 1961, was designated on a Department- provided form as the primary agent for Emery Richardson Insurance at its 240 Commercial Boulevard location in Lauderdale By The Sea, Florida, and the completed form was provided to the Department.3 At no time prior to the commencement of the instant administrative proceeding did Respondent himself personally notify the Department of the identity of Emery Richardson Insurance's primary agent. It was Mr. Joy who (in 1992) filled out the primary agent designation form and submitted it to the Department. Mr. Joy, however, did so on behalf of Respondent, who had verbally designated Mr. Joy as Emery Richardson Insurance's primary agent. Neither Respondent, Mr. Joy, nor any one else, has subsequently used the Department's primary agent designation form to advise the Department of Mr. Joy's continuing status as Emery Richardson Insurance's primary agent. In his capacity as president of the Corporation, Respondent, on behalf of the Corporation, in April of 1994, entered into an agreement (Agreement) with Ulico Casualty Company of Washington, D.C. (Ulico), which provided as follows: WHEREAS, the Applicant (Corporation), a licensed insurance agent and/or insurance broker, has heretofore obtained from the COMPANY (Ulico) or is desirous of obtaining from the COMPANY the placement of insurance for the Applicant's customers or principals, and WHEREAS, the COMPANY, using its facilities, has placed insurance for the Applicant or with whom Applicant has requested the placement of such insurance, NOW, THEREFORE, in consideration of the mutual promises herein contained, and for other good and valuable consideration, the receipt whereof is hereby acknowledged. It is mutually AGREED as follows: With reference to the placement of new insurance, Applicant shall submit to the COMPANY a separate application containing the name of each prospective insured, describing the risk to be considered for underwriting and binding. Applicant specifically understands and agrees that Applicant shall have no authority to authorize or write any insurance or bind any risk on behalf of the COMPANY without the prior written approval by a duly authorized representative of the COMPANY. With respect to any insurance heretofore placed with the COMPANY by the Applicant, and with respect to any insurance hereinafter placed by the Applicant, all premiums shall be payable to the COMPANY and such Applicant assumes and agrees to pay the COMPANY premiums on all the policies of insurance heretofore or hereinafter placed by Applicant with the COMPANY in accordance with the current statements rendered to the Applicant by the COMPANY, such payment to be made no later than 30 days after the month of issue of the insurance policy, or due date of any installment if issued on an installment basis, less any credits due to the Applicant for return premium, provided an appropriate credit memorandum therefor has previously been issued by the COMPANY to Applicant. In the absence of such credit memorandum, Applicant shall have no right of counterclaim or setoff with respect to any claimed credits due, but shall be required to establish entitlement to the same in a separate action. Applicant shall have the right, so long as Applicant is not indebted to the COMPANY, to deduct agreed upon commissions on each policy of insurance prior to remitting the remaining premium to the COMPANY. In the event that premiums on behalf of any insured party shall have been financed and refund of financed premiums are required from the COMPANY to the financing institution, Applicant shall forthwith refund and pay to the COMPANY all unearned commissions heretofore received with respect to such financed premiums. In the event that Applicant shall fail to make any payment to the COMPANY which is required to be made pursuant to this Agreement, within the time specified, the COMPANY shall have the right, at any time subsequent to the due date of payment, to cancel any policy on which the premium payments have not been remitted to the COMPANY, without prior notice to the Applicant, by sending notice of cancellation directly to the insured, except that Applicant shall continue to remain liable to the COMPANY for the payment of all premiums earned as of the date of cancellation which are collected by Applicant. Applicant represents that they are duly licensed as an insurance broker or agent for Casualty and Property Insurance as indicated in the States set forth below, and agrees that in the event that any license shall cease, terminate or be cancelled, that the Applicant will promptly notify the COMPANY accordingly. Applicant agrees, where required, to file at Applicant's expense, all necessary affidavits and collect all State or local premium taxes and to pay the same promptly to the respective taxing authorities on all insurance placed with the COMPANY, in accordance with the laws applicable in the State of licensing. No changes or modification of this Agreement shall be valid unless such change or modification is subscribed, in writing, by the COMPANY and Applicant. Ulico is one of approximately 47 insurance companies that Emery Richardson Insurance represents. In the past five years, Emery Richardson Insurance has received from clients in excess of seven or eight million dollars in premium payments, which it has deposited in its various checking accounts and then paid over to these insurance companies. Ulico is the only one of these 47 insurance companies to have experienced "problems" in receiving from Emery Richardson Insurance monies due. These "problems" are detailed below. On June 13, 1994, the Corporation opened a checking account (account no. 458-902279-9, hereinafter referred to as the "Account") with Savings of America at the bank's Hollywood, Florida, branch. The Peter Debello described on the signature card for the Account was Respondent's father. Respondent's father, however, through execution of a power of attorney, had authorized Respondent to act on his behalf in connection with the Account. On August 20, 1996, Respondent drafted and signed four checks drawn on the Account, which were made payable to Ulico: check no. 804, in the amount of $1,729.15, for "Teamsters #769, Policy #BOU 907"; check no. 805, in the amount of $1,071.65, for "Sheet Metal Appr. #32, Policy #CLU 668"; check no. 806, in the amount of $700.00, for "Sheet Metal #32, Policy #CLU 682"; and check no. 807, in the amount of $96.05, for "Painters L.U. 160, Policy #CLU 451." (These policies will hereinafter be referred to as the "Subject Policies.") On January 24, 1997, Respondent drafted and signed a check (check no. 882) drawn on the Account, in the amount of $7,500.00, which was also made payable to Ulico. Check nos. 804, 805, 806, 807,4 and 882 were sent to Ulico as payment for monies the Corporation owed Ulico (pursuant to the Agreement) for insurance coverage obtained from Ulico by the Corporation for its clients (as reflected in invoices Ulico sent the Corporation, which hereinafter will be referred to as the "Subject Invoices").5 At the time that he drafted and signed these checks and submitted them to Ulico, Respondent assumed that there were sufficient funds in the Account to cover the amounts of the checks. In drafting and signing these checks and submitting them to Ulico, Respondent did not make any statements or representations that he knew to be false or misleading. All five checks were returned by Savings of America unpaid, with the explanation, "insufficient funds," stamped on each check.6 (These checks will hereinafter be referred to as the "Dishonored Checks.") Ulico's premium collection manager, Gayle Shuler, spoke with Respondent, as well as with Mr. Joy, "many times" concerning the monies the Corporation owed Ulico. At no time did either Respondent or Mr. Joy indicate that they disputed the Subject Invoices7 (although Respondent and Mr. Joy did contest other invoices that they received from Ulico). Although aware that the Dishonored Checks had been returned due to insufficient funds8 and knowing that Ulico desired payment, Respondent failed to act promptly to remedy the situation. It was not until early 1998, after the commencement of the instant administrative proceeding, that Respondent, on behalf of the Corporation, took steps to address the matter. At that time, using Fidelity Express money orders purchased between February 26, 1998, and March 1, 1998, (which Respondent dated August 26, 1996), Respondent paid Ulico a portion ($1,867.70) of the total amount of the Dishonored Checks. The money orders were sent to Ulico by certified mail, along with a cover letter from Respondent. Respondent "backdated" the money orders to reflect "when [the monies owed Ulico] should have been" paid. He did so without any intent to mislead or deceive. There is no clear and convincing evidence that anyone other than Ulico was injured by Respondent's failure to timely pay over to Ulico the monies Emery Richardson Insurance had received from its clients for the Subject Policies (which monies belonged to Ulico). Respondent's failure to timely make such payments, it appears, was the product of isolated instances of carelessness, neglect and inattention on Respondent's part,9 which, when considered in light of the totality of circumstances, including his problem-free dealings with the other insurance companies Emery Richardson Insurance represents, were not so serious as to demonstrate a lack of fitness, trustworthiness or competency to engage in transactions authorized by his license. Count VII In August of 1986, Respondent visited Gary Faske, Esquire, at Mr. Faske's office in Dade County, Florida. The purpose of the visit was to have Mr. Faske complete the paperwork necessary to add Mr. Faske to his new employer's group major medical insurance policy with Union Bankers Insurance Company. After the paperwork was completed, Respondent left Mr. Faske's office with the completed paperwork, as well as a check from Mr. Faske's employer to cover the cost of adding Mr. Faske to the group policy.10 It is unclear what Respondent did with the paperwork and check after he left Mr. Faske's office. In October of that same year (1986), Mr. Faske took ill and had to be hospitalized on an emergency basis. He assumed that he was covered by his employer's group major medical insurance policy, but he subsequently learned that he was wrong and had to pay between $50,000.00 to $60,000.00 in medical bills. The evidence does not clearly and convincingly establish that Respondent (as opposed to Union Bankers Insurance Company or some other party) was responsible for Mr. Faske not having such coverage. Mr. Faske thereafter filed suit against Respondent and Union Bankers Insurance Company in Dade County Circuit Court. He settled his claim against the insurance company, but was unable to reach an agreement with Respondent. Respondent's case therefore went to trial, following which, on August 12, 1997, a Final Judgment11 was entered against Respondent in the amount of $40,271.00.12 Count VIII By filing an Address Correction Request, dated January 29, 1992, Respondent notified the Department that his new mailing address was 40 Hendricks Isle, Fort Lauderdale, Florida. The Department subsequently sent a letter, dated April 14, 1995, to Respondent at this 40 Hendricks Isle address. Respondent, however, "had just moved from that address," and the letter was returned to the Department stamped, "forward expired." In May of 1995, Respondent advised the Department in writing of his new mailing address. It is unclear whether such written notification was given more than, or within, 30 days from the date Respondent had moved to his new address.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations noted in the Conclusions of Law of this Recommended Order; (2) penalizing Respondent for having committed these violations by suspending his license for 18 months; and (3) dismissing the remaining allegations of misconduct advanced in the First Amended Administrative Complaint. DONE AND ENTERED this 12th day of February, 1999, 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 12th day of February, 1999.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Daniel Bruce Caughey has been licensed by petitioner as an insurance agent at least since 1981. He began working for Caughey Insurance Agency, Inc. in 1971 as a file clerk. Once he was licensed, he worked as a salesman. In 1977, he assumed the executive vice-presidency of the agency, a position he still holds. Until the middle of March, 1983, respondent'- father, William Edward Caughey, managed the agency. He continues to own all 1,000 shares the corporation has issued, although he has not written a policy since he turned management of the agency over to the respondent and his brother Randy in 1983. In 1982 and thereafter until Jordan Roberts and Company, Inc. (JORO), a multi-line general agency, stopped underwriting automobile insurance, Caughey Insurance Agency, Inc. brokered automobile insurance through JORO. When an account current bookkeeping dispute arose between Caughey Insurance Agency, Inc. and JORO, William Edward Caughey retained an accounting firm, Sizemore. On Sizemore's advice, he rejected JORO's claim for more than $20,900. On October 21, 1983, a JORO representative told Daniel Bruce Caughey that JORO would no longer deal with Caughey Insurance Agency, Inc. unless he signed an "Individual Guarantee Agreement," personally guaranteeing the insurance agency's corporate indebtedness; and executed a promissory note in JORO's favor in the amount of $16,941. Respondent executed the documents. On December 3, 1986, JORO brought suit against the corporation and respondent personally. No. 86-21454 (Fla. 13th Cir.). On August 13, 1987, the court entered judgment against both defendants in the amount of $6,595.94. Jordan Roberts & Co. v. Cauqhey, No. 86-21454 (Fla. 13th Cir.; Aug. 13, 1987). Neither respondent nor the agency has paid the judgment. With the possible exception of filing the complaint that eventuated in the present proceedings, JORO has made no effort to collect. In Count I, JORO's complaint alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by ?CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William E. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. At hearing, both Daniel Bruce Caughey and William Edward Caughey testified that neither had withheld premiums owed JORO, and this testimony was not controverted.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 2nd day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 2nd day of April, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8 and 9 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, respondent became an officer after the brokerage agreement had been executed. With respect to petitioner's proposed finding of fact No. 7, the judgment could also be based on the promissory note. With respect to petitioner's proposed finding of fact No. 6, respondent did not sign as an individual guarantor. Respondent's proposed findings of fact Nos. 1 through 10 and 12 through 18 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, evidence respondent himself adduced showed that the judgment had not been satisfied. COPIES FURNISHED: Robert V. Elias, Esquire 412 Larson Building Tallahassee, FL 32399-0300 Bruce A. McDonald, Esquire McDonald, Fleming & Moorehead 700 South Palafox Street Suite 3-C Pensacola, FL 32501 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, FL 32399-0300
The Issue The issue in this case is whether the Respondent's life and health insurance license should be disciplined for the reasons set forth in the Administrative Complaint filed on June 15, 1989. That Complaint alleges that Respondent has violated certain provisions of the Florida Insurance Code. Specifically, Petitioner alleges Respondent has violated Section 626.611(7), Florida Statutes as a result of a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, Section 626.611(14), Florida Statutes as a result of having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state which involves moral turpitude and/or Section 626.621(8), Florida Statutes as a result of being guilty of, or having pleaded guilty, or nolo contendere to a felony in this state.
Findings Of Fact At all pertinent times, Respondent has been licensed by Petitioner as a life and health insurance agent. In October of 1987, Respondent was arrested and formally charged by the State Attorney of the Seventeenth Judicial Circuit for the State of Florida with grand theft of over $20,000.00 and three counts of perjury in an official proceeding. The criminal charges against Respondent arose in connection with her relationship with an elderly woman who was stricken with cancer. The evidence provided only sketchy details of the circumstances that led to the criminal charges. From the evidence presented, it appears that Respondent befriended the woman a short time before she died. After the woman died, a controversy arose regarding certain transfers of property to Respondent and a will executed by the deceased woman naming Respondent as beneficiary. A civil law suit was filed contesting the will and the property transfers to Respondent. Ultimately, the will which left all of the elderly woman's property to Respondent was disallowed and certain transfers of property to Respondent were overturned. Criminal charges were initiated against Respondent by the prevailing heir. As part of a plea bargain arrangement, Respondent entered a plea of guilty to the charge of grand theft and the three perjury counts were dismissed. The Circuit Court for Broward County withheld adjudication on the grand theft count and placed Respondent on probation for ten years with a requirement that she make restitution to the victim, an heir of the estate. The restitution required as part of the criminal proceeding was intended to compensate the prevailing heir for attorney's fees incurred in connection with the civil action. While Respondent continues to deny any wrongdoing in her dealings with the deceased woman, she claims she had inadequate resources to fight the criminal matter further. In entering into the plea arrangement, Respondent anticipated that she would be able to continue in the insurance business. Her insurance business is the only source of income which Respondent can reasonably anticipate generating sufficient money to make the restitution payments. It is clear from the transcript of the sentencing proceeding that the circuit court judge withheld adjudication on the grand theft charge with the understanding that by doing so the Respondent would be able to continue to sell insurance. Respondent has been making the restitution payments required as part of her probation and she is dependent upon the continuation of her insurance business in order to make those payments in the future. As a result of the initiation of this proceeding against Respondent by Petitioner, Respondent has been cancelled by the various insurance companies for whom she used to write insurance. Thus, she has been effectively suspended from the insurance business since shortly after the initiation of this proceeding. No evidence was introduced that Respondent committed any other criminal offenses of any nature at any time, nor was any evidence produced of any other violations of the insurance code by Respondent since her initial licensure in 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure and eligibility for licensure for six- months. DONE and ORDERED this 19 day of March, 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of March, 1990. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Barbara Helen Askea 2315 Northeast 5th Avenue Pompano Beach, Florida 33064 Tom Gallagher Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact At all times pertinent to this proceeding Respondent, HOWARD P. HAUSER, was eligible for licensure and licensed in this state by the Florida Department of Insurance as a Life and Health Insurance Agent; General Lines Insurance Agent - Property, Casualty, Surety, and Miscellaneous Lines; and Legal Expense Insurance Agent. At all times pertinent hereto, Respondent was the registered agent and an officer or director of Hauser and Associates Insurance Agency, Incorporated of 7770 Davie Road Extension, Hollywood, Florida. Beginning on or about January 1, 1986, and continuing through August 31, 1987, Respondent represented to one of his clients that he had obtained insurance coverage for that client's three restaurants. This representation of coverage was false. Respondent received from the client insurance premium payments of $56,550.00, more or less, for the insurance of the client's three restaurants. These funds were obtained by Respondent under false pretenses. Respondent provided the mortgagee of one of the restaurants owned by his client with a document purporting to be a certificate of insurance on that restaurant from Scotsdale Insurance Company insuring the restaurant for the period December 11, 1985, to December 11, 1986. Respondent further provided the mortgagee with a declaration sheet stating that Protective Insurance Company would insure the restaurant from January 1, 1987, to January 1, 1990. Respondent falsified these declaration sheets. Respondent's client suffered no loss, other than the loss of his premium dollars, because of Respondent's misrepresentations as to coverage. Respondent was charged with one count of Grand Theft of the Second Degree, a second degree felony, based on the dealings with his client. Respondent entered a plea of nolo contendere to the charge of Grand Theft of the Second Degree. The Circuit Court, in and for Broward County, Florida, placed Respondent on probation for a period of three years and withheld adjudication of guilt. As a condition of the Order of Probation, the court required that Respondent make restitution to his client in the amount of $56,550.00 and further required that $15,000.00 be paid toward restitution on October 24, 1988, the date Respondent entered his plea of nolo contendere and the date the court entered the Order of Probation. Respondent made a restitution payment of $15,000.00 on October 24, 1988. Respondent has been licensed by Petitioner since April 1972. Although Petitioner has received other complaints about Respondent, no formal action has been previously taken against him. Respondent has been a good citizen, except for this misconduct, and a good family man. Respondent regrets his misconduct. Respondent timely requested a formal hearing after the Administrative Complaint was served upon him.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Insurance enter a final order which revokes all licenses issued by the Department of Insurance to Respondent, Howard Paul Hauser. DONE and ENTERED this 21st of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 21st day of July, 1989. APPENDIX The proposed findings addressed as follows: of fact submitted on behalf of Petitioner are 1. Addressed in paragraph 1. 2. Addressed in paragraph 2. 3. Addressed in paragraph 6. 4. Addressed in paragraph 3. 5. Addressed in paragraph 4. 6. Addressed in paragraphs 3-4. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 9. Addressed in paragraph 6. Addressed in paragraph 6. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 7. Addressed in paragraph 5. Addressed in part in paragraph 7. Rejected in part as being speculative. Rejected as being a conclusion of law and not a finding of fact. COPIES FURNISHED: Robert G. Gough, Esquire, (at the hearing) and Charles Christopher Anderson, Esquire, (on the proposed recommended order) Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Gary D. Weiner, Esquire, Glendale Federal Building Suite 209 901 Southeast 17th Street Fort Lauderdale, Florida 33316 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue At issue is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, respondent, James Brian Cantwell, was licensed by petitioner, Department of Insurance and Treasurer (Department) as an insurance agent. At all times pertinent hereto, respondent was, pursuant to a written agreement of appointment dated January 11, 1993, appointed as an agent for Capital Security Life Insurance Company (Capital) to solicit applications for insurance on behalf of Capital. In exchange therefor, Capital obligated itself to pay respondent such commissions, progress and persistency bonuses, and service fees due under its schedule of compensation for policies issued as a result of applications submitted by respondent. Following respondent's resignation in October 1993, Capital undertook an audit of respondent's accounts. Such audit revealed that between March 17, 1993, and September 23, 1993, respondent submitted to Capital fifty applications for insurance in the name of fictitious or non-existent persons, and that in reliance on each application Capital had issued a policy of insurance and had paid respondent the total sum of $4,035.09 in first-year commissions, progress and persistency bonuses, and service fees for securing such policies. 1/ Such audit further demonstrated that each of the fifty policies lapsed following issuance due to nonpayment of premium. As a consequence, Capital lost the premiums it would have earned had the policies been predicated on legitimate applications and had they remained in effect; however, the value of that loss is not of record. The out-of-pocket loss to Capital as heretofore noted, of $4,035.09, has, however, been established.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order revoking the licenses and eligibility for licensure of respondent, James Brian Cantwell. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of March 1995. WILLIAM J. KENDRICK 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 1st day of March 1995.
Findings Of Fact At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.
Recommendation Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed. ENTERED this 7th day of February, 1990, in Tallahassee, Florida. K. N. AYERS 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 7th day of February, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel 400 W. Robinson Street Department of Professional Orlando, FL 32801-1772 Regulation 1940 N. Monroe Street Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard Tampa, FL 33603 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801
