The Issue Whether the Petitioner application for licensure as a resident life, variable annuity and health agent should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for issuing licenses "authorizing a person to be appointed to transact insurance or adjust claims for the kind, line, or class of insurance identified in the document." §§ 626.015(9) and 626.112(1)(a), Fla. Stat. Prior to December 4, 2002, Mr. Porras was licensed in Florida as an insurance agent. He was also part-owner of The Garpo Group, Inc. ("Garpo Group"), an insurance agency. On October 18, 2002, the Department (formerly the Department of Insurance) and Mr. Porras entered into a Settlement Stipulation for Consent Order ("Settlement Stipulation") as a result of an investigation by the Department that resulted in allegations of wrongdoing on the part of Mr. Porras. In the Settlement Stipulation, Mr. Porras agreed to surrender his agent's licenses to the Department. Mr. Porras did not admit in the Settlement Stipulation that he committed the acts alleged by the Department. A Consent Order was entered on December 4, 2002. The Consent Order incorporated the terms of the Settlement Stipulation and provided that the surrender of Mr. Porras's licenses "shall have the same force and effect as a revocation pursuant to Section 626.641, Florida Statutes"; that Mr. Porras "shall not engage or attempt or profess to engage in any transaction or business for which a license or appointment is required under the insurance code or directly or indirectly own, control, or be employed in any manner by any insurance agent or agency . . . ."; and that Mr. Porras "shall not have the right to apply to the Department for another license under the Insurance Code within two (2) years of the effective date of revocation." Neither the Settlement Stipulation nor the Consent Order included a deadline by which Mr. Porras was required to divest himself of his ownership interest in the Garpo Group. On April 24, 2003, a Purchase and Sale Agreement ("Agreement") was executed whereby Mr. Porras, Eduardo Garcia, Mayda Garcia, and Luis Garcia, who were identified as the principals of the Garpo Group, agreed to sell the Garpo Group to Jose Peña and Peter Rivero. The Agreement included a purchase price of $50,000.00, payable in an initial deposit of $20,000.00, with the remaining balance to be paid "in monthly installments of no less than $500.00 (Five Hundred Dollars), and no more than $2,500.00 (Two Thousand Five Hundred Dollars)." A Special Condition of the Agreement provided that Mayda Garcia, "Shareholder/Registered Agent/General Agent/Director," and Luis Garcia, "Shareholder/Director," would "remain in Corporation in their current capacity until final payment for sale of business is paid." Mr. Porras retained an interest in the monthly payments to be made by Mr. Peña and Mr. Rivero for the purchase of the business. In accordance with the terms of the Consent Order, Mr. Porras surrendered his license and did not subsequently engage in the transaction or solicitation of insurance. Mr. Porras did not exercise any control over the Garpo Group after entry of the Consent Order. Mr. Porras worked for the Garpo Group as a bookkeeper from May 2004 through October 2004.3 He was paid $175.00 per week, and his duties included reconciling the Garpo Group's bank accounts, entering deposits in the system, and cutting checks on the Garpo Group accounts.4 It can be reasonably inferred from the evidence presented by Mr. Porras regarding his understanding of the terms of the Consent Order that Mr. Porras was aware when he accepted employment with the Garpo Group that the terms of the Settlement Stipulation and of the Consent Order prohibited him from any involvement in the business of the Garpo Group, including employment "in any manner."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Financial Services enter a final order finding that Lorenzo Alejandro Porras violated the terms of a Consent Order entered by the Department of Financial Services and denying his application for licensure as a resident life, variable annuity, and health agent, pursuant to Section 626.611(13), Florida Statutes. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 29th day of March, 2006.
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 The primary issue in this proceeding is whether Respondent committed the alleged multiple violations of Chapter 626 F.S. through misrepresentation and fraud relating to the surrender and issuance of certain policies to Melvin and Clara Smith. The ancillary issue raised by Respondent's motion to dismiss is whether this proceeding, filed approximately ten years after the questioned events, is barred by a statute of limitations or laches, or is a violation of due process or right to a speedy trial.
Findings Of Fact Prior to hearing, in a Prehearing Statement filed on April 21, 1987, Bonafide admitted the following allegations or the amended administrative complaint: You, RICHARD ANTHONY BONAFIDE, are currently eligible for licensure and licensed in this state as an Ordinary- Variable Annuity, including Health Agent and as an Ordinary Life, including Health Agent. At all times pertinent to the dates and occurrences referred to in this Administrative Complaint you, RICHARD ANTHONY BONAFIDE, were eligible for licensure and licensed as an insurance agent in this state. You, RICHARD ANTHONY BONAFIDE, were licensed in this state to represent Jefferson Standard Life Insurance Company (hereinafter referred to as "Jefferson Standard") from January 1, 1972 through December 31, 1978. You, RICHARD ANTHONY BONAFIDE, were licensed in this state to represent Jefferson National Life Insurance Company (hereinafter referred to as "Jefferson National") from August 31, 1976 through June 23, 1978. References in this Administrative Complaint to you, RICHARD ANTHONY BONAFIDE, includes persons acting under your direct supervision and control. Sometime during October 1976 Melton H. Smith of Orlando, Florida contacted the Orlando office of Jefferson Standard concerning two life insurance policies issued to Melton H. Smith and his wife, Clara B. Smith. At that time Jefferson Standard had in force policy number 945382 insuring the life of Melton H. Smith which was issued in 1947; and policy number 1144867 insuring the life of Clara B. Smith which was issued in 1951. Melvin Smith's purpose in contacting Jefferson Standard was to determine the cash value of the two policies and to purchase paid-up life policies for himself and his wife with the accumulated funds. Bonafide was the Jefferson Standard regional agency manager. He went to the Smith's home and assisted them in getting the information they needed and in obtaining cash surrender checks for the two policies. Those checks were issued by Jefferson Standard on October 26, 1976, and were mailed to the regional agency office. On or about November 1, 1976, Bonafide visited the Smiths again. He had the checks: No. 419184 payable to Melton H. Smith in the amount of $8,608.22 and No. 419186 payable to Clara B. Smith in the amount of $5,208.73. He gave the Smiths the checks and took their two surrendered policies. In their discussions with Bonafide, the Smiths indicated their desire to have the funds utilized for paid up policies which would not require periodic premiums. Bonafide recommended that the couple go with Jefferson National life insurance rather than Jefferson Standard, as Jefferson Standard was in the process of merger with Pilot Life and rates were not available for the type of policy they were seeking. On the occasion of that same visit, Bonafide prepared two applications for Jefferson National life insurance for the Smiths, a $25,000.00 whole life policy for Melton Smith, and a $20,000.00 whole life policy for Clara Smith. The application forms signed by the Smiths clearly indicate an annual mode of premium payment and the amount of the premium: $1,061.00 for Melton Smith's policy, $592.20 for Clara Smith's policy. The application forms were filled out by Bonafide, who explained that the only way the policies could be written was in this manner, as it was difficult to come up with premium rates for a paid-up policy. Bonafide told the couple that he would handle the premium payments for paid up policies. The couple endorsed their two cash surrender checks and gave them to Bonafide. In return he gave them a check in the amount of $735.78, which he said represented the difference between the premiums for the paid up insurance and the cash surrender checks they turned over to him. The $735.78 check was written on Atlantic Bank of Orlando account No. 272-04-155-9, printed with "Richard Bonafide, 2699 Lee Road, Winter Park, Florida 32789". In his testimony at hearing, Melvin Smith stated that Bonafide had secured their trust with his very cordial and helpful manner. He had visited their home on several occasions in working with them to obtain the Jefferson Standard refunds. The Smith's two checks, totalling $13,816.95 were deposited in Bonafide's account No. 272-04-155-9 on November 2, 1976. Bonafide, alone, had the authority to draw on this account. It was not the account maintained by the Jefferson Standard regional office for the deposit of premiums nor was it the account maintained by the office for the payment of office expenses. The address printed on the checks and maintained on bank records was the address for the Jefferson Standard regional office. Bonafide claimed that the account was for his business as an insurance agent, that he used the account to make premium payments to the various companies he represented and for business expenses. He could also write checks to himself on that account. Copies of the checks and deposit slips are kept by the bank for seven years and have been destroyed. Copies of the signature card for the account and copies of monthly statements were available and were admitted into evidence at the hearing. Bonafide forwarded the Smiths' two applications to Jefferson National along with ten percent of the annual premium due on each policy, for a total of $165.32. A debit in this amount appears in the December 9, 1976 bank statement for account No. 272-04-155-9. It was customary, and in accordance with company policy, for the agent to retain his commission portion of the premium payment. Subsequently, Jefferson National issued two policies to the Smiths: No. 00278718, effective November 17, 1976, for Clara E. Smith; and No. 00278717, effective December 9, 1976, for Melton H. Smith. The policies were mailed to the agent, Bonafide, who in turn delivered them to the Smiths at their home. The policies, as delivered to the Smiths, included standard terms, copies of the signed application forms and policy specifications. Those specifications, in computer-generated type, establish an annual premium amount, and alternate schedule of premiums for annual semi-annual and quarterly payments. However, on both policies, at the bottom of the policy specifications page, is found this language, in typewritten form: *Premium schedule amended Premiums paid in advance as of 11-7-76 full term of contract. [Petitioner's exhibits No. 4 and No. 5] Bonafide explained carefully and in detail, the provisions of the policies to the Smiths. In particular in response to Melvin Smith's question, Bonafide explained the type- written notation regarding premiums. He said that the computers were not set up to handle a paid up full life policy and there was difficulty getting premium rates because this was an unusual occurrence. He assured the Smiths that they had paid up policies. The typewritten notation is not the sort of notation the home office would have added. For some reason that is not clear, Jefferson National sent two letters dated May 5, 1977 to the Smiths on each policy indicating that they understood the Smiths did not want their policies and including refund checks in the amounts of $106.10 and $59.22. The Smiths, upon receipt of the letter immediately called Bonafide. He assured them that the home office made an error and that he would get an explanation. A few days later the Smiths received a memo on a green Jefferson National Life Insurance memo form, purportedly from Robert Jackson, Underwriting Division, to Dick Bonafide. The memo explained the error and asked Bonafide to have the checks returned for cancellation. At the bottom of the memo was Bonafide's handwritten note to Melvin Smith asking that he return the checks in the furnished self-addressed, stamped envelope. Mr. Smith called Bonafide again and was told to put the checks in the envelope. He did this on May 17, 1977. Jefferson National's cash journal transaction register, virtually the only company records remaining of these policies, indicate that the entries made on May 5, 1977 were reversed in June 1977, and the policies were approved and issued. The memo received by the Smiths was neither signed nor generated by Robert Jackson. It does not reference policy numbers, a practice unheard of at the company, and it references a company division and section that never existed. The memo forms were available to company agents, such as Bonafide, in the field. The Smith's next and final contact with Bonafide was in November 1979 when he visited them and tried unsuccessfully to sell them some more life insurance. In October or November 1985, Mr. Smith's income status had changed and he was curious about the cash surrender value of the Jefferson National policies. If enough, he thought he might take the money and invest it elsewhere. He wrote to the company and the immediate response was that the policies had lapsed. Further correspondence and the investigation which led to this proceeding ensued. The Smiths also filed a civil suit, presumably still pending. Unknown and uninitiated by the Smiths, the company processed a change of address notice for them in October 1977. The address was changed from 1101 Powers Drive, Orlando, where they lived, to 100 Partridge Circle, Maitland, where Bonafide lived. All Company notices regarding the Smith's policies were sent to the 100 Partridge Circle address, including premium notices, late payment offers and lapse notices. Annual premiums on the policies were due in November and December, 1977, and were not paid. In due course, after a series of notices were sent and not answered, the polices were lapsed and dividend checks of $48.50 and $24.00 were issued to the Smiths and presumably sent to the Partridge Circle address. The checks were never cashed by anyone. When Jefferson National makes a policyholder address change, a notice of that change is also sent to the agent. It was not the company practice to send policyholder's notices to their agents' home addresses. Neither Jefferson standard nor Jefferson National Life Insurance Company records reveal policies for the Smiths other than the ones addressed above. In 1976, while employed by Jefferson Standard Life Insurance Company under a contract which prohibited the representation of other companies, Bonafide had contacts with or represented several other insurance companies. As agent, Bonafide would have received copies of lapse notices sent to his policyholders. Depending on various factors, including the amount of the business, he would have followed up with a contact to the policyholder. In Bonafide's view, in those days the $20,000 and $25,000 policies for the Smiths were "a sizable sale". [Tr-293]
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Richard Anthony Bonafide be found guilty of violations of sections 626.561(1), 626.611(5), (7), (9), and (10), and 626.621(6) F.S. and that his licenses and eligibility for licensure as an insurance agent in this state be revoked. DONE and RECOMMENDED this 10th day of August, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1987. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 William W. Tharpe, Jr., Esquire 413-B Larson Building Tallahassee, Florida 32399-0300 James R. Lavigne, Esquire 541 South Orlando Avenue Maitland, Florida 32751
The Issue The issue is whether respondent's license as a life and health insurance agent should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Thomas Keith McOwen, was licensed and eligible for licensure as a life and health insurance agent by petitioner, Department of Insurance and Treasurer (Department). When the events herein occurred, respondent was a sales representative for Western and Southern Life Insurance Company (WSLIC), an insurance firm having headquarters in Cincinnati, Ohio. Respondent's contractual agreement with WSLIC began on April 18, 1988. Under the agreement, respondent was required to account for and remit all premiums collected and received on behalf of WSLIC. On March 3, 1993, WSLIC terminated respondent's appointment as a sales representative, thereby cancelling his agent's contract. In August 1988, Ruth Houston, a/k/a Tracy Houston, purchased a WSLIC life insurance policy from respondent. In 1991, respondent collected around $440.00 in cash from Houston as premium payments but remitted only $128.00 to WSLIC. In an affidavit given to petitioner's investigator, respondent acknowledged that he failed to account for the remaining $312.00 and had converted it to his own personal use.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 626.561(1), 626.611(4), (7), (9), (10) and (13), and 626.621(2), Florida Statutes, and that his licenses and eligibility for licensure be revoked. The charge as to Subsection 626.611(8), Florida Statutes, should be dismissed. DONE AND ENTERED this 13th day of March, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4189 Petitioner: 1-4. Partially accepted in finding of fact 1. 5. Partially accepted in finding of fact 2. 6-8. Partially accepted in finding of fact 3. NOTE: Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Honorable Bill Nelson Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Lisa S. Santucci, Esquire Department of Insurance 612 Larson Building Tallahassee, FL 32399-0300 Daniel Y. Sumner, Esquire General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Mr. Thomas Keith McOwen 2913 Langley Ave., #107 Pensacola, FL 32504
