Findings Of Fact The parties have stipulated to the truth of the allegations of paragraph 1-7 of the Administrative Complaint. The Respondent is currently licensed in the State of Florida as a life and health (debit) agent, as well as a life and health agent. Pursuant to Chapter 626, Florida Statutes, the Florida Department of Insurance, the Petitioner, has jurisdiction over the insurance licenses and appointments of the Respondent. On August 26, 1983, the Respondent entered into an agent contractual agreement with Capital Security Life Insurance Company (Capital). The agent's contract required that the Respondent account for and remit to Capital all premiums collected and received on behalf of that company. On or about October 18, 1991, Capital terminated its appointment of the Respondent, as one of its agents. This had the effect of cancelling the agent contract of the Respondent. The Respondent was terminated because Capital had detected the fact that certain premium monies collected by the Respondent from policy holders had not been remitted over to Capital on a repetitive basis. On or about October 18, 1991, Capital conducted an audit of the account of the Respondent. It was thus shown through the subject audit and work papers in evidence, as well as the testimony of Mr. Reynolds for the Petitioner, that the account of the Respondent contained a proven deficiency in the sum of $812.41 in insurance premiums collected but not remitted to Capital. Other than protest that the deficiency was a mistake and the result of computer error or that the financial information resulting in that figure had been erroneously input into Capital's computer by Capital's office personnel in charge of accounting for such matters and monies, no cogent credible explanation for the failure to remit over that sum of money referenced above has been established. The testimony of Mr. Reynolds is accepted over that of the Respondent as more credible and worthy of belief. It has thus been established that the Respondent misappropriated and converted to his own use and benefit, and unlawfully withheld, premium monies rightfully belonging to Capital while engaged in the applicable and ordinary course of his business as an agent for Capital.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a Final Order be entered by the Petitioner agency finding that the Respondent, Willie Frank Dennis, is guilty of the violations set forth as and in the manner in the Conclusions of Law above and that, therefore, his licenses and eligibility for licensure be revoked pursuant to Sections 626.611 and 626.621, Florida Statutes. DONE AND ENTERED this 3rd day of November, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1222 Petitioner's proposed findings of fact: 1-9. Accepted. COPIES FURNISHED: William C. Childers, Esquire Department of Insurance and Treasurer Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Willie Frank Dennis 1113 Kennard Street, Apartment No. 2 Jacksonville, Florida 32202 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 On October 19, 1982, the Petitioner Mikal Talib Hamin applied for licensure as a general lines insurance agent. The Respondent Department of Insurance denied the Petitioner's application on March 29, 1983, due to his failure to inform the Department on other applications for insurance licensure that he had been charged with or convicted of a felony. This denial was based on the Petitioner's previous applications for licensure as an ordinary life insurance and health insurance agent in which the Petitioner informed the Department that he had neither been charged with nor convicted of a felony. On March 3, 1973, the Petitioner, then known as Michael Thomas Hanks was convicted of robbery in the criminal court of record, Dade County, Florida, and sentenced to 15 years in prison. The Petitioner was released from prison on October 25, 1977 and was on parole supervision until October 25, 1979. When the Petitioner was convicted, he was 17 years old. Since his release from prison, the Petitioner has obtained his GED, been steadily employed and has encountered no other problems with the criminal justice system. The Petitioner is married and is three semesters away from obtaining a college degree in Business Administration. Due to the Petitioner's positive adjustment to parole, Martin Carroll, the Petitioner's parole officer recommended that the Parole Commission terminate the Petitioner's parole ahead of schedule. The Parole Commission granted early termination and the Petitioner's civil rights were restored effective March 22, 1979, by the Office of Executive Clemency. On January 24, 1982 and March 26, 1982, the Petitioner applied for licensure as a disability and ordinary life agent, respectively. Both of these applications asked the Petitioner whether he had been charged with or convicted of a crime and on both applications he stated "no". The Petitioner subsequently sat for these exams, passed the exams and was licensed as a disability and ordinary life agent. In completing these applications, the Petitioner consulted Jeff Dickerson, an insurance agent for whom be worked at the time, who advised the Petitioner that he need not disclose his previous conviction because of the length of time that had passed and the fact the Petitioner was only 17 when the conviction occurred. The Petitioner followed this advice and did not disclose his past felony conviction on his applications. Subsequently, the Petitioner went to work for another insurance agent, Hakim Shaeed, and applied for licensure as a general lines agent. In completing this application, the Petitioner consulted Shaeed, who informed him that the prior felony conviction should be disclosed to the Department. The Petitioner informed the Department of the misstatement on his prior applications, pending application and his felony conviction by letter to Joe Crutchfield, dated March 21, 1983. On November 15, 1978, the Petitioner changed his name from Michael Thomas Hanks, the name under which he was convicted, to Mikal Talib Hamin. The Petitioner submitted letters from Nashid Sabir, Esquire, Lorrett Duffy, Personnel Administrator, Broward Cablevision, Alphonse Wright, Coordinator Drug Abuse and Prevention Program, Liberty City Youth, Hakim Fakir, P.U.L.S.E. Coordinator, and B. W. Smith, an insurance agent, attesting to his good character and reputation in the community.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint in Case No. 83-1435 dated July 13, 1983, be dismissed. Mikal Talib Hamin be allowed to sit for examination as a general lines agent. DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th this day of September, 1983.
The Issue Whether the Respondent committed the alleged multiple violations of Chapter 626, Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with licensing insurance agents of all types, regulating licensure status, and enforcing the practice standards of licensed agents within the powers granted by the Legislature in Chapter 626, Florida Statutes. At all times material to these proceedings, the Respondent was licensed as a General Lines Agent, Ordinary Life, including Health Agent, Ordinary Health Agent, and a Legal Expense Insurance sales representative. Respondent Collier conducted business through A. Collier Insurance Agency, Inc. (hereinafter Collier Agency), in Fort Myers, Bonita Springs, and Naples, Florida. Collier Agency was a general lines insurance agency which sold automobile insurance through a licensed agent and unlicensed sales personnel. The unlicensed sales personnel acted through the supervision and control of the Respondent, the licensed general lines agent of record at Collier Agency. The Respondent is also the President and director of the insurance agency. All of Collier Agency's personnel who accepted the insurance applications and premiums addressed in this proceeding acted under the supervision and control of Respondent. One of the ways in which the Respondent supervised and controlled unlicensed sales personnel who sold automobile insurance, was to personally review each application for insurance and to issue each agency check required by the selected insurance company. The Respondent conducted business in this manner at all three office locations along Florida's southwest coast on a daily basis. Between August 15, 1986, and January 12, 1987, the Respondent failed to promptly submit nine applications for automobile insurance to insurance companies on behalf of potential insureds, in spite of the insurance agency's receipt of completed applications and premium payments from the nine customers seeking automobile insurance. As a result of the Respondent's failure to timely submit the applications and premiums, these customers were not insured during the time period requested, contrary to representations that the insurances would be in effect during the agreed upon time periods. Between October 2, 1987, and January 30, 1987, the Respondent personally accepted four applications and initial premiums from four customers seeking automobile insurance. The applications were not timely processed and sent to the respective insurance companies to assure that the customers would receive insurance coverage during the time periods requested by the customers and agreed upon by Respondent on behalf of the insurance companies. As a result, the customers were not insured during the time periods requested. In mitigation of the violations, it should be noted that the Respondent's failure to timely process applications occurred as a result of negligence. There was no scheme to intentionally deprive the customers of funds or to disregard the Respondent's fiduciary responsibilities to the potential insureds. The Respondent misjudged his own ability to handle the supervisory work of three busy and fast-paced insurance offices. It should also be noted that this is the first disciplinary action taken against the Respondent in over twenty years as a practicing, licensed insurance agent. In five of the cases, the applications were processed at a later date by Respondent, without any prejudice to the potential insureds in the interim period of time in which they were not insured. In two cases, the Respondent paid claims made by the customers out of his own pocket as if the insurance policies had been in effect, as represented during the acceptance of these applications within Collier Agency. One case was settled, and a release was obtained by Respondent from the potential insured.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Respondent be found guilty of the thirteen violations of Sections 626.611(7) and (10), Florida Statutes, and the thirteen violations of Section 626.561(1), Florida Statutes. That Respondent's licenses as General Lines Agent, Ordinary Life, including Health Agent, Ordinary Health Agent, and a Legal Expense Insurance sales representative be suspended for a period of one year. DONE and ENTERED this 28th of August, 1989, in Tallahassee, Leon County, Florida. VERONICA D. D0NNELLY 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 August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4431 Petitioner's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2-3. Accepted. See HO #3. 4-7. Accepted. See HO #4. 8-20. Accepted. See HO #5 - #6. Respondent's proposed findings of fact are addressed as follows: Rejected. Improper conclusion of law. However, see HO #7. Rejected. See HO #8. Accepted, except for the thirteen counts in the complaint. See HO #5 - #6. COPIES FURNISHED: Robert C. Byerts, Esquire Office of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Thomas F. Woods, Esquire GATLIN, WOODS, CARLSON & COWDERY 1709-D Mahan Drive Tallahassee, Florida 32308 Don Dowdell, Esquire General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Petitioner should be licensed as a title agent by the Department of Financial Services?
Findings Of Fact The Parties Ms. Shirley Auxais, the Petitioner, was born on November 20, 1971, in Brooklyn, New York. She is presently a resident of Coral Springs, Florida. Formerly married, Ms. Auxais' married name was Shirley A. Seraphin. The Department of Financial Services, the Respondent, was created by the Florida Legislature in the 2002 Session. Section 20.121, Florida Statutes. It is responsible for taking action on the license application submitted by Ms. Auxais and has been substituted as the Respondent in this proceeding for the Department of Insurance, the agency that issued the notice of denial. See B., 1Note to Section 120.121, Florida Statutes (2002), p. 400. Unemployment Compensation Fraud On February 17, 1998, the State Attorney of the Seventeenth Judicial Circuit filed an information against Ms. Auxais for unemployment compensation fraud, a felony. See Section 443.071(1), Florida Statutes. At the time of the filing, Ms. Auxais' name was Shirley A. Seraphin. The information charged the following: Shirley A. Seraphin from on or about the 13th day of August, A.D., 1995 up to and including the 16th day of September A.D., 1995, . . ., did . . . make a false statement or representation on her Pay Order Card(s), Florida Department of Labor Form UCB60 and/or UCB61, knowing said statement or representation to be false, or knowingly failed to disclose a material fact to obtain or increase benefits or other payments for her or any other person, in that the said Shirley A. Seraphin did knowingly state on her pay order cards that she was unemployed and not earning wages during the aforesaid period, when in fact and truth she was employed . . ., and earning wages which she willfully failed to report, and the said false statement was made or material fact not disclosed with the intent to obtain or increase benefits pursuant to the Florida Unemployment Compensation Law Respondent's Exhibit 3. Ms. Auxais, in the Circuit Court of the 17th Judicial Circuit, in and for Broward County (the "Court") entered a plea of "No Contest" to the charges. On June 18, 1998, Ms. Auxais upon the motion of the State, was ordered by the Court to pay restitution to the Division of Unemployment Compensation "in the total sum of Eight hundred twenty-five and 00/100 ($825)." Respondent's Exhibit 5. On June 18, 1998, an Order of Probation was rendered by the Court in Ms. Auxais' case pursuant to a plea of nolo contendere to Unemployment Compensation Fraud as reflected on the face of the order. Adjudication of guilt was withheld and Ms. Auxais was placed on "18 months mail in probation." Respondent's Exhibit 6. Slightly more than four months later, an order was entered by the Court that terminated Ms. Seraphin's probation. Application for Licensure as a Title Agent On May 13, 2002, Ms. Auxais submitted an application for a new license as a title agent to the Department of Insurance's Bureau of Agent and Agency Licensing. The license applied for, according to the application is "04-10-Resident Title Agent." Respondent's Exhibit 2, p. 7. The application poses a number of screening questions. Two are immediately adjacent to each other in the order that follows: In the past 12 months, have you been arrested, indicted, or had an information filed against you or been otherwise charged with a crime by any law enforcement authority anywhere in the United States or its possessions or any other country. Have you ever been charged, convicted, found guilty or pled guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered. Respondent's Exhibit 2, p. 8. The answer shown on the application to both questions is "N" which stands for "no." Six months later, on November 14, 2002, the Notice of Denial was issued. The factual basis for the denial consists of two interrelated facts. First, Ms. Auxais responded "no" to the question of whether she had ever pled no contest to a crime. Second, Ms. Auxais had pled no contest to Unemployment Compensation Fraud, a felony, in the Circuit Court in and for Broward County. Explanations In the interim between the submission of the application and the denial, Ms. Auxais, in a letter to a Regulatory Consultant at the Department of Insurance, offered "explanations . . . in regard to the cases filed against [her] . . .". Respondent's Exhibit 9, page 25. The first explanation concerns a criminal charge of "larceny by credit card." The charge is not related to the Department's basis for denial. Nonetheless, the explanation sheds light on Ms. Auxais' credibility. It has value to this case, moreover, because Ms. Auxais chose in her testimony at hearing to explain further her written explanation. She did so as she attempted, at the same time, to explain away the false answer on her application with regard to the nolo contendere plea for Unemployment Compensation Fraud, the second explanation in her letter in November of 2002 to the Department of Insurance. The explanation to the unrelated charge (the first explanation offered in the letter to the Department of Insurance) follows: Arrest Date: 3/13/95. Charge: Larceny Credit Card I went shopping with an ex-associate. I was not aware of the fact that she had obtained a credit card and attempted to use it unlawfully. When security began to question the nature of the card she fled the scene and I was held, arrested and charged for Larceny Credit Card. I explained the nature of the incident to the defense attorney appointed to me who suggested I plead no-contest. The courts ruled adjudication withheld. (Respondent's Exhibit 9). With regard to a question about whether her ex-associate had ever been charged with some type of theft crime for the incident, Ms. Auxais testified, "No she was never found. I can't find her to this day." (Tr. 44, 45). The second explanation relates to the felony of Unemployment Compensation Fraud: Arrest Date: 4/29/98 Charge: Fraud/Unemployment I worked for a group of physicians one of whom split from the group. At that time the other physicians felt threatened since I worked directly for the physician who decided to leave and I got fired. During this time I filed for unemployment. While I was on unemployment and receiving benefits the physician gave me a gift (so I thought) in the sum of $400.00. I was not aware that her accountant documented the $400.00 as employment. Some months later after she re-opened her new practice and I resumed working for her I among other employees received a letter from the unemployment office notifying us of unemployment fraud and they demanded repayment of the monies I received in the amount of $800.00. When I explained the situation to the physician she agreed to repay unemployment. I set up a payment plan with unemployment however the physician's accountant did not keep up with the payment which caused me to get arrested for unemployment fraud. (Id.) At hearing, in the midst of elaborating on these two explanations, Ms. Auxais offered an explanation for how it happened that her application had been submitted with the false answer of "no" to the screening question of whether she had ever pled "no contest" to a crime when, in fact, she had pled nolo contendere or no contest to crimes twice. Her explanation in this regard was: I personally did not fill out the application for the title insurance thing on line. My supervisor did it for me[.] [A]t the time that the application was filled out for me on line[,] I was in title insurance training in Tampa . . . But you just don't go around telling everybody that yes I was charged with unemployment compensation fraud after you thought everything was done. I guess the person who filled out the application for me was not aware that I was charged with a felony, so when the question was asked, had I ever been charged with a felony, they checked no. When it came back, I had already signed the last page of that prior to leaving, because you can actually print out the application. The application was sent out with that. (Tr. 30). Before transmitting it to the Department of Insurance, Ms. Auxais did not read the filled-out application. She testified she did not have the opportunity to so "[b]ecause [she] was in the midst of trying to go out of town and [she] was in the midst of trying to get [the] application out for a deadline . . .". (Tr. 64). There are at least two problems with this explanation. Both relate to the declaration that appears above the signature line in the application: Under penalties of perjury, I declare that I have read the foregoing application for licensure and that the facts stated in it are true. Respondent's Exhibit 2, p. 000011 of Respondent's Exhibits. If Ms. Auxais is to be believed, she had not, in fact, read the application with answers before signing it so that her attestation by way of her signature was false. The other problem occurs with her reading of the application after it had been signed, filled out, sent in and discovered by the Department of Insurance to be false. On this point, Ms. Auxais had yet another explanation. This explanation has as its basis Ms. Auxais' reading of the two screening questions quoted in paragraph 10, above. The first of the two has a time frame with regard to the question it asks about criminal arrests or charges. "In the past 12 months," is the predicate to the question. The second question, has no such time limitation. It asks whether the applicant has "ever" pled nolo contendere or no contest to a crime. When confronted by a Department of Insurance employee, "a Mr. Thomas" with the false answer to the second question, Ms. Auxais testified, "I . . . explained to him that even after going back and re-reading everything I would have still said no because the prior question asked within the past 12 months." (Tr. 60, 61). In other words, Ms. Auxais construed the second question to be limited by the time frame of the first so that contrary to its plain inquiry as to whether she had "ever" pled nolo contendere or no contest to a crime, it really asked whether she had so pled within the previous 12 months. Ms. Auxais is a college graduate. She plans to continue her education post-graduate by attending law school and regards employment as a licensed title insurance agent as a stepping stone to a career in law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying Petitioner's application for licensure as a title insurance agent. DONE AND ORDERED this 28th day of April, 2003, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2003. COPIES FURNISHED: Shirley Auxais 9022 West Atlantic Boulevard, No. 227 Coral Springs, Florida 33065 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner is entitled to a legal expense insurance agent's license.
Findings Of Fact On October 17, 2001, Petitioner applied for licensure as a legal expense insurance agent. On December 20, 2001, the Department denied Petitioner's application for licensure based upon his unfitness and untrustworthiness due to Petitioner's guilty plea to conspiracy to engage in racketeering, for conduct which occurred while he was a sitting circuit court judge and which was related to his judicial duties. Petitioner had fully disclosed the plea and the details of the crime in his application to the Department. Petitioner received a juris doctorate degree in 1975 and a master's in criminal law in 1977. After being admitted to the Florida Bar, Petitioner worked as an assistant state attorney, as an associate with a private firm, as a practitioner in his own law firm, and finally was elected to a judgeship at the county court level. Petitioner served two years as a county court judge. In 1988, Petitioner was elected to the circuit court. As such, Petitioner was required to read, know, and abide by the Code of Judicial Conduct. He swore to uphold the Code of Judicial Conduct and voluntarily assumed an office that encompassed the highest level of responsibility and fiduciary duty to the public found in any public office in the United States of America. Petitioner was assigned to the criminal law division of the circuit court. Petitioner knowingly took bribes while he was a sitting circuit court judge. Because Petitioner was in debt, he approached an attorney named Raymond Takiff for a loan. Petitioner admitted that Mr. Takiff agreed to give him money in exchange for Petitioner's helping him out some time in the future. At that time, Mr. Takiff was being used by the Federal Bureau of Investigations (FBI) to set up an undercover bribery investigation. In return for Mr. Takiff's financial help, Petitioner ruled in favor of Mr. Takiff and ordered the return of some property that was the subject matter of one of the false criminal/forfeiture cases used by the FBI in their investigation. Petitioner knowingly helped Mr. Takiff establish a group of judges who would also take bribes. Petitioner stated that he introduced Mr. Takiff to ten other judges and that these instructions included Petitioner's saying that Mr. Takiff was trustworthy, that he could make it worth their while, and convincing the judges that Mr. Takiff was not working for the government. Petitioner continued to be involved in the on-going scheme to bribe multiple judges. One of the judges who received money from Mr. Takiff proceeded to send a portion of this bribe back to Respondent. Petitioner ultimately received $88,000.00 from Mr. Takiff in exchange for actions such as ruling for Mr. Takiff in one case and for knowingly establishing Mr. Takiff with other judges in an attempt to perpetuate the bribery scheme. Petitioner also accepted money from friends in exchange for setting them up with some appointments. Eventually, Petitioner was caught and arrested by the FBI. Petitioner agreed to help the FBI in the on-going investigation and multiple trials stemming from the FBI sting operation. As a result of the aforementioned acts on April 9, 1992, Petitioner pled guilty to conspiracy to engage in racketeering in Federal District Court in the Southern District of Florida and was sentenced to 12 years and seven months in federal prison. Petitioner's actions violated the fiduciary duty he had voluntarily assumed upon becoming a circuit court judge, and by introducing other judges to Mr. Takiff, he was promoting and causing a continuous and increasing breach of the judiciary's fiduciary duty to the public. The offense for which Petitioner was convicted did not have any relation either directly or indirectly upon the insurance business. Petitioner was disbarred on September 26, 1991. While in prison, Petitioner continued to live up to his agreement to help the FBI in the prosecution of criminal cases stemming from the sting operation, even though he did not have to, and was in grave danger because of his continued help. Petitioner had numerous threats made on his life, including contracts to kill him. Petitioner was nearly beaten to death in the attempted execution of one of the contracts on his life. He continued to help the FBI and felt it was one way to make up for his absolute breach of conscience and faith in committing the crime for which he was imprisoned. Subsequent to an unusual Rule 35 hearing held on June 9, 1995, Petitioner's sentence was shortened to five years' incarceration followed by three years' supervised release. The Rule 35 hearing was unusual in that the FBI agents and prosecutors were strongly in favor of Petitioner's release from prison and testified in his favor. Petitioner has completed his supervision and has since tried to pick up the pieces of his life. As a result of his conduct, Petitioner lost everything--family, friends, reputation and property. He clearly has learned the value of integrity and trustworthiness. He helps in various community organizations and serves as a mentor to others who might follow a less than trustworthy life. Petitioner had his civil rights, except the specific authority to possess or own a firearm, restored by the Office of Executive Clemency on August 31, 2002. Petitioner did not lie, mislead, or attempt to conceal in any way his past felony conviction. Petitioner has shown remarkable achievements in rehabilitating himself. Multiple witnesses testified as to his many deeds and rehabilitative achievements in ameliorating his admitted misdeeds in the face of actual death threats and brutal physical attacks resulting in severe and permanent bodily injury. Given this rehabilitation, Petitioner is entitled to be licensed as a legal expense insurance agent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That a final order be entered granting Petitioner's application for licensure as a legal expense agent in the State of Florida. DONE AND ENTERED this 2nd day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 2nd day of December, 2002. COPIES FURNISHED: John R. Forbes, Esquire 8825 Perimeter Park Boulevard Suite 102 Jacksonville, Florida 32216 Matthew A. Nowels, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is: RECOMMENDED that the Respondent's qualifications and eligibility for licensure as an insurance agent be REVOKED. DONE and ORDERED this 20th day of December, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of December, 1985. COPIES FURNISHED: Leland L. McCharen, Esq. Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32301 Joseph Dennis Turner, Sr. 2219 West Skagway Avenue Tampa, Florida 33604-1039 Hon. William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Don Dowdell, Esq. General Counsel State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 DEPARTMENT OF INSURANCE AND TREASURER, DIVISION OF INSURANCE, vs . JOSEPH DENNIS TURNER, SR., a/k/a JOSEPH D. TURNER CASE NO. 85-3225 APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), the following are my specific rulings on the proposed findings of fact submitted by each of the parties to this case. Petitioner's Findings of Fact Paragraph Ruling Accepted; see paragraph 2, R.O. Rejected as argument. Partially accepted; see paragraph 6, R.O. Respondent's Findings of Fact Paragraph Ruling Accepted; see paragraph 1, R.O. Accepted; see paragraph 3, R.O. Accepted; see paragraph 4, R.O. Accepted; see paragraph 5, R.O. Rejected as argument and conclusions of law. Accepted; see paragraph 1, R.O. Accepted; see paragraph 2, R.O. i`_ E=_
Findings Of Fact At all times pertinent to this matter, the Respondent has been licensed by the Florida Department of Insurance as an ordinary life, including disability, agent and a general lines agent. During the years 1977 and 1978, the Respondent operated an insurance agency known as Florida Commercial Underwriters. During May, 1977, the Respondent was a general lines agent providing insurance coverages for The Fronton, Inc., West Palm Beach, Florida. During June, 1977, The Fronton, Inc., delivered a check to the Respondent in the amount of $41,229.00 as a premium payment for various insurance coverages to be provided by the Respondent. Approximately $23,795.00 of that amount represented the premium payment for Policy No. 7485844, issued by the Insurance Company of the State of Pennsylvania. The Insurance Company of the State of Pennsylvania issued the policy to The Fronton, Inc., for the policy period from May 1, 1977, through May 1, 1978. The Insurance Company of the State of Pennsylvania had a firm policy during this period that premiums would be due within forty-five days from inception of the policy, or within fifteen days from the date of billing, whichever was later. Due to errors on its part, the Insurance Company of the State of Pennsylvania did not submit its bill to the Respondent until November 30, 1977. The notice on the face of the bill itself indicated that the premium was due within fifteen days of the date of the bill. The Respondent did not pay the premium in accordance with the bill. By notice dated January 31, 1978, the Insurance Company of the State of Pennsylvania advised The Fronton, Inc., that its policy would be cancelled effective February 17, 1978, because the premium had not been paid. Donald Roberts, the Assistant General Manager of The Fronton, Inc., immediately contacted the Respondent. The Respondent advised Roberts that the problem was apparently of a bookkeeping sort, and that the premium had been paid. Within four or five days of the time that he received the Notice of Cancellation, Roberts again contacted the Respondent and requested that the Respondent produce the cancelled check verifying that the premium had been paid. Roberts followed that telephone contact with a visit to the Respondent's office approximately forty-five minutes later. The Respondent searched for a cancelled check, but told Roberts that he would need to get it from the bank. Roberts told him to produce the cancelled check later that day. When the Respondent failed to do that, Roberts took the matter to the office of the State Attorney. Despite the fact that he told Roberts that the policy had been paid, the Respondent had not paid the premium. In fact, he did not pay the premium until May 8, 1978, after he had raised some money from another source. He paid the premium by delivering the check personally to the insurance company's office in Atlanta. Apparently mindful of the fact that the Respondent was acting as its agent, and that the Respondent's receipt of the premium was thus binding upon it, the Insurance Company of the State of Pennsylvania reinstated the policy, and has acknowledged that despite its Notice of Cancellation, the policy was in full force and effect during its entire term. The Respondent had suffered financial reverses during this period of time. He had apparently forgotten that the premium had not been paid between the time that he received the check from The Fronton, Inc., and the bill from the Insurance Company of the State of Pennsylvania. When he received the bill, he did not have sufficient funds available to pay it. He had in effect used the money paid by The Fronton, Inc., to cover other debts that he had. Since May, 1978, the Respondent has been working as an employee with another insurance agency. His employer assisted him in paying off the obligations that the Respondent incurred in connection with his former business. It does not appear that the Respondent has had problems of this sort in his new position, and he currently teaches an insurance agent's course at a local school.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Respondent was licensed by Petitioner as a life and health insurance agent, having been issued license number A031614 on November 7, 1983. At all times material hereto, Respondent was a debit agent for Monumental Life Insurance Company (Monumental). As a debit agent, Respondent collected premiums from customers in the form of cash, checks, and money orders. In collecting the premiums, Respondent would visit the customers at their homes. Whenever he received a payment, Respondent would record the payment in the customer's premium receipt card or provide the customer with a receipt and would enter the payment in the database of his laptop before leaving the customer's home. As Monumental's debit agent, Respondent was responsible for accurately applying the premiums collected to policyholders' accounts. As Monumental's debit agent, Respondent was further responsible for reporting the premiums collected to Monumental. He would fulfill this responsibility by downloading, i.e., transmitting, at least once a week, the collection data to Monumental from his laptop. As Monumental's debit agent, Respondent was also responsible for remitting the premiums collected to Monumental by depositing the premiums into Monumental's bank account. A debit agent's deposits should correspond to the premiums collected by the debit agent. If a debit agent resigns from Monumental, an audit of the debit agent's accounts is performed. First, an audit is usually conducted by the sales manager. Subsequently, Monumental's home office conducts an audit, as a double-check. Monumental has a tolerance level of $100, realizing that a debit agent deals with numerous accounts and that errors may occur; however, any amount of deficiency beyond $100 is not considered by Monumental as an error. Respondent resigned from Monumental. An audit of Respondent's accounts was performed covering the period of time that he was Monumental's debit agent. As a result of the initial audit, Monumental determined that a deficiency existed in Respondent's accounts. The audit revealed that Respondent failed to apply premiums collected to the policyholders' accounts or to remit the collected premiums to Monumental in the amount of $1,178.71. Monumental notified Respondent by letter, dated February 1, 2000, of the deficiency and of his opportunity to review the audit. Respondent did not respond to the letter. Subsequently, Monumental performed its home office audit, which was conducted over a three-month period and which was completed on October 10, 2000. The audit revealed that Respondent failed to apply premiums collected to the policyholders' accounts or to remit the collected premiums to Monumental in the amount of $1,172.15.1 The amount of the deficiency was later revised to $1,027.90. An inference is drawn that, when the premium payments were not applied to policyholders' accounts without Monumental's knowledge, Monumental could have viewed the situation as nonpayment of premiums and the policies could have lapsed.2 An inference is further drawn that a lapsed policy would have a negative effect on a policyholder.3 Monumental's district manager had personally contacted Respondent regarding the deficiencies and reviewing the audit. Respondent agreed to review the audit but never appeared for a review. On June 18, 2000, Respondent's license was suspended. No evidence was presented explaining why his license was suspended or the period of time of the suspension.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order revoking the license of Charles Ervin Brown, Jr. DONE AND ENTERED this 28th day of August, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2001.
The Issue The issues are whether Respondent violated provisions of chapter 626, Florida Statutes, regulating insurance agents in Florida, as set forth in the Administrative Complaint, and if so, what sanction is appropriate.
Findings Of Fact At all times relevant to the complaint, Mr. Matthias was licensed in Florida as an insurance agent, including variable annuity and health. Mr. Matthias entered into an agreement with United in March 2011 to collect premiums on debit insurance policies. Mr. Matthias’s job was to visit customers each month to collect the premiums, initial the customer’s receipt book to show proof of payment, and remit the premiums to United. About half of these customers paid in cash. Mr. Matthias reported to Mr. Khalangi Ewers, who supervised five other agents in addition to Mr. Matthias. Every month, Mr. Ewers reviewed the accounts on which the monthly premium had not been paid. In a usual month, this would vary from between five to eight percent. However, in early 2013, Mr. Ewers calculated that United had not received payments from 30 percent of Mr. Matthias’s accounts. Mr. Ewers called Mr. Matthias and asked him why the premiums had not been received by United. When Mr. Matthias responded that the customers had not paid, Mr. Ewers decided to investigate by telephoning a few accounts that normally paid on time. He was told by each of the customers that they had paid Mr. Matthias. Mr. Ewers then conducted a standard audit of Mr. Matthias’s accounts by visiting the homes of each of his customers and reviewing their receipt books. Mr. Ewers compared the amounts Mr. Matthias had indicated that he had received (by initialing that customer’s receipt book) with the amounts actually turned in to United. Over the five-week period beginning on January 14, 2013, and ending February 15, 2013, a total deficiency of $5,304.17 was revealed by the audit. United continued to provide coverage to all of these customers. Mr. Matthias admitted to United that customers had paid him but that he had not remitted these amounts to United. At hearing, Mr. Matthias did not dispute the deficiency, but sought to show that he had made restitution. On January 7, 2013, Mr. Matthias gave Mr. Ewers a money order in the amount of $388.62. On January 24, 2013, he gave him another money order for $215.00 and, on February 11, 2013, gave him a third money order for $800.00. Mr. Ewers testified that the first two of these payments were credited to accounts before the calculation of the deficiency. All parties agree that the $800 payment should be applied to reduce the $5,304.17 deficiency. It is also undisputed that Mr. Matthias paid some additional cash to Mr. Ewers. However, there is a conflict in the testimony as to the amount and purpose of any additional payments. Mr. Ewers testified that he made a personal loan to Mr. Matthias in the amount of $1,200.00 because he was sympathetic to the personal and financial difficulties Mr. Matthias was having. No written evidence of a personal loan was introduced into evidence, however. Mr. Ewers testified that Mr. Matthias gave him a cash payment of $900.00 (less $78.20 credited to a specific United account) in partial repayment of that personal loan. On the other hand, Mr. Matthias testified that he never borrowed any money from Mr. Ewers. He testified that Mr. Ewers went with him on several occasions to cash his pay checks in order to collect amounts due to United and that Mr. Ewers accepted not only the $900.00, but also two additional cash payments of $220.00 and $240.00 on behalf of United, but that these sums were never credited to reduce his deficiency. The Department did not show by clear and convincing evidence that payments made to Mr. Ewers were made to repay a personal loan. However, even if Mr. Matthias is given credit for all payments he claimed to have made, totaling $2,675.42, along with a credit of $2,064.26 for his forfeited bond and interest, he still has not repaid the full $5,304.17 deficit he owed to United, despite its demands that he do so. In collecting payments from United’s customers and failing to timely remit these funds to United, Mr. Matthias demonstrated a lack of fitness or trustworthiness to engage in the business of insurance. It was fraudulent and dishonest for Mr. Matthias to collect money owed to United, not send it to them, and initially claim that the customers had not paid him when United asked him about these accounts. Mr. Matthias engaged in misappropriation, conversion, and unlawful withholding of moneys belonging to United that he had received in the course of his insurance business. Mr. Matthias received premiums belonging to United under his insurance license, but failed to account for these trust funds or pay them to United as required. No information was presented to indicate that Mr. Matthias’s license has ever been subjected to any prior disciplinary orders or that he has received prior warnings from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent in violation of sections 626.561(1), 626.611(7), 626.611(9), and 626.611(10), Florida Statutes, and suspending his license for nine months. DONE AND ENTERED this 17th day of December, 2014, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2014.
