The Issue The issue in this case is whether, for the reasons alleged in the Administrative Complaint dated February 10, 1984, the Petitioner should revoke the Respondent's license and eligibility for licensure as an insurance agent or impose some lesser penalty authorized by statute.
Findings Of Fact Based on the testimony of the witnesses and the exhibits admitted into evidence, I make the following Findings of Fact: 1/ On June 16, 1982, the Respondent, Shelby Dewey Blackman, executed an Application for Qualification as Nonresident Life Agent, which application he thereafter caused to be filed with the Petitioner, Department of Insurance and Treasurer. In that application Mr. Blackman stated that his residence address and his business address in his state of residence were both "2549 New York Avenue, Pascagoula, Miss. 39567." (Pet. Ex. 1; Tr. 12-13) The Department of Insurance and Treasurer does not issue Nonresident Life Agent licenses to people who are in fact residents of the State of Florida. Such licenses are only issued to people who are nonresidents of this state. Applicants for Resident Life Agent licenses are required to take an examination prior to licensure. Applicants for Nonresident Life Agent licenses are not required to take an examination prior to licensure. The Department would not have issued a Nonresident Life Agent license to Mr. Blackman if the Department had known that Mr. Blackman was a Florida resident. (Tr. 14) As a result of the filing of the application described above, the Department issued to Mr. Blackman a license as a Nonresident Life and Health Agent for the American Sun Life Insurance Company, which was the only company he was authorized to write insurance for in the State of Florida. When Mr. Blackman received his license, the license listed the name of the the only company he was authorized to write insurance for in this state. Licensees who are authorized to represent more than one insurance company in this state receive a separate license for each company they are authorized to represent. Mr. Blackman had only the one license to represent one company. (Pet. Ex. 1 and 2; Tr. 14-18) At all times material to this case, Mr. Blackman was a resident of Santa Rosa County, Florida. Specifically, Mr. Blackman was a resident of Santa Rosa County, Florida, at the time he applied for and was issued a Nonresident Life and Health Agent license and at the time of writing the four insurance applications which are described hereinafter. (Pet. Ex. 3; Tr. 20-21, 53) Continental Bankers Life Insurance Company of the South does not currently hold, and has never held, a Certificate of Authority to write insurance in the State of Florida. In November of 1982 Continental Bankers Life Insurance Company of the South was licensed to write insurance in the State of Alabama and Mr. Blackman was authorized by Continental to write insurance for Continental in the State of Alabama. (Pat. Ex. 8; Tr. 24-25) During November of 1982, Mr. Blackman wrote four applications for health insurance policies to be issued by the Continental Bankers Life Insurance Company of the South. One was an application dated November 2, 1982 from Mr. Thomas J. Barrow. Another was an application dated November 4, 1982, from Mr. Jimmie R. Williams. The last two were applications dated November 12, 1982, from Mr. Henry E. Marshall and Mr. Ercy L. Henderson, respectively. All four of the applications were written and signed in Jay, Florida. No part of the transactions which culminated in the writing of the four applications took place in the State of Alabama. On three of the applications Mr. Blackman wrote that the application was written and signed in Brewton, Alabama, and on one of the applications Mr. Blackman wrote that the application was written and signed in Flomaton, Alabama. The statements that the applications were written and signed in Alabama were false statements that Mr. Blackman knew to be false statements. (Pet. Ex. 4, 5, 6, 7; Tr. 37-38, 42, 49, 53-54) The false statements written on the four applications described above were relied upon by the Continental Bankers Life Insurance Company of the South and were, therefore, material misrepresentations. If Mr. Blackman had truthfully written on the applications that they were written and signed in the State of Florida, Continental would not have issued policies on the basis of those four applications because Continental was not licensed to write insurance in the State of Florida. The MM-6 policy is an insurance policy that Continental markets in Alabama and the false statements on the applications which indicated that the policies were applied for and completed in Alabama induced Continental to issue the policies. (Tr. 25-27, 32, 34-35)
Recommendation For all of the reasons set forth above, and particularly because of Mr. Blackman's demonstrated disregard for the truth, I RECOMMEND that the Department of Insurance and Treasurer enter a Final Order revoking Mr. Blackman's license and eligibility to hold a license. DONE AND ORDERED this 31st day of July, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9575 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1984.
The Issue Whether Petitioner should be dismissed from employment by Respondent?
Findings Of Fact Petitioner was an employee of Respondent's from December 8, 1984, until May 31, 1988. Respondent is a water management district created pursuant to Section 373.069, Florida Statutes Respondent provides health insurance to its employees through, what is, in effect, a self-insurance program. An employee who elects to receive single individual coverage under the health insurance program, receives the coverage for free. An employee choosing family coverage pays $59.00 per month to Respondent. Payment is made through payroll deductions. Petitioner participated in the health insurance program. Petitioner elected to receive family coverage for herself, her husband, and her minor child by a prior marriage, and had $59.00 deducted from her paycheck to cover the cost of family coverage. Under the provisions of 42 USCS Sec. 300bb (COBRA), Respondent is required, if certain conditions are met, to offer continuation coverage to beneficiaries of its health insurance program who would have otherwise lost their coverage under the plan. A beneficiary electing to receive continuation coverage is required to pay Respondent a premium amount not exceeding 102 percent of the amount it costs the program to provide coverage for beneficiaries of the plan. Continuation coverage for a single individual would have cost $111.20 after June 1, 1988, and approximately $107.00 prior to June 1, 1988. On March 4, 1987, Respondent prepared a memorandum addressed to all "Employees and Spouses" of Respondent's. The memorandum provided an explanation of the continuation coverage provisions of COBRA. Also, Respondent held a staff meeting to explain the COBRA provisions to employees. However, not all of Respondent's employees received the memorandum, attended the meeting, or were otherwise advised of the COBRA provisions. Petitioner was one of these employees. In July 1987, Petitioners husband suffered a neck injury for which he received medical treatment during 1987. Petitioner's insurance coverage with Respondent paid the bills related to this treatment. After several consultations with neurosurgeons, it was decided that Petitioner's husband should undergo surgery. The surgery was initially scheduled for the week before Thanksgiving, 1987. However, because of a problem with scheduling the operating room, the surgery was rescheduled for December 4, 1988. Sometime in the fall of 1987, Petitioner had filed for divorce. Sometime in November 1987, Petitioner was informed that her divorce was on the judge's desk and would become final shortly. Petitioner wanted her husband's surgery to be covered by her health insurance. Upon receiving notice that the divorce would become final shortly, she became concerned about what would happen if the divorce became final prior to the surgery taking place. Petitioner went to Respondent's personnel office to find out what options there were for her husband to be covered by insurance in the event the surgery took place after the divorce became final. At that time, Ms. Carol Donaldson was in charge of handling employee insurance matters for Respondent. Ms. Donaldson, however, was not in the office when Petitioner came in, and Petitioner spoke with Ms. Jean Osterhout. Ms. Osterhout's position with the Respondent was as a Personnel Service Specialist in employee relations. At the time of her conversation with Petitioner, her duties did not specifically include insurance matters. However, when Ms. Donaldson left Respondent in mid-December, 1987, Ms. Osterhout was one of two people who handled the insurance office until a replacement was hired on February 2, 1988. After explaining her concerns, Petitioner was told by Ms. Osterhout that under the COBRA act her husband could be covered by the insurance program if he paid the premiums. Petitioner asked what the premiums would be, and Ms. Osterhout responded she did not know, that she needed to investigate. Petitioner asked Ms. Osterhout to investigate the price and to send her the proper forms to continue the coverage. Ms. Osterhout agreed to do this and told Petitioner to continue paying the premiums for family coverage until they got all the forms together. In anticipation of her divorce, Petitioner had made arrangements for her son to be covered by his father's (her prior husband's) employer's insurance. In this manner, Petitioner could save $59.00 per month, since insurance coverage for her alone was provided at no charge. On December 16, 1987, Petitioner's divorce became final. About a month after her conversation with Ms. Osterhout, Petitioner asked Ms. Osterhout about the forms. Ms. Osterhout told Petitioner that she had been busy and had not had a chance to get them together, and for Petitioner to continue to pay the family premium. Petitioner continued to have $59.00 deducted from her paycheck until her employment with Respondent ended. The surgery which had been scheduled for December 4, 1987, was also cancelled. Petitioner's husband (now ex- husband) underwent surgery in March 1988. At the time of the operation, Petitioner believed her ex-husband was covered by Respondent's insurance. On March 16, 1988, Petitioner accompanied her ex-husband to the hospital and signed the hospital's Agreement for Treatment, Insurance Assignments, Release of Information, Responsibility for Personal Items and Payment of Charges" as the insured party. Petitioner signed the document where she was told to sign by the hospital. At the time she signed it, the document did not contain the circle around the words "Spouse" and "Guardian." Petitioner signed the document as the "Insured," since she believed that her insurance with Respondent still covered her husband. In April Respondent paid $8,109.35 under its insurance agreement as reimbursement for payment of Petitioner's ex-husband's surgery bills. On April 6, 1988, Ms. Melanie West, Respondent's employee then responsible for handling insurance matters, asked Petitioner to complete a claim form for the surgery. Upon receiving the claim form, Petitioner went to see Ms. West and told her that the surgery was related to an accident that had happened in 1987 and that she had filled out claim form in 1987. Ms. West told Petitioner she needed a new claim form. A new claim form was needed because it was the first claim that had been received in 1988 with respect to Petitioner's ex-husband's accident. Petitioner asked Ms. West for a copy of the claim form she had filled out in 1987 and used this claim form to fill out the new claim form on April 6, 1988, with exactly the same information that she had included in the claim form filed in 1987. In doing so, Petitioner indicated on the claim form that she was married, since that is what the 1987 claim form showed. Petitioner wanted the claim forms to be exact because of concerns that her ex-husband might sue over the accident. In May 1988, Respondent's finance and accounting department notified Ms. West that there may be a problem with the insurance claim for the surgery, since it was possible that Petitioner was no longer married. After confirming with the Putnam County Courthouse that Petitioner had been divorced on December 16, 1987, Ms. West asked Petitioner to come to her office. When Petitioner arrived, Ms. West told her there appeared to be a problem with the claim for the surgery expenses because she had been told that Petitioner was no longer married. Ms. West asked Petitioner when she had been divorced. Petitioner initially responded that she had been divorced in April 1988, but upon being asked for written proof, Petitioner told Ms. West that the divorce had taken place in December 1987. After several meetings took place between Petitioner and different persons in Respondents upper management, a meeting took place between Mr. Dean, Respondent's Executive Director; Mr. Flowers, the General Counsel; Ms. Horton and Mr. Wheeley, Assistant Executive Directors; Mr. Parker, Director of the Office of Employee Relations; and Mr. Elledge, Director of the Department of Resource Management. After reviewing and discussing the facts as they knew them, the group concluded that Ms. Willis had falsified the claim form and had lied to Ms. West. The group decided that disciplinary action was warranted. After discussing a range of possible actions, Mr. Dean decided Petitioner should be given two options. Petitioner could either accept a five-day suspension without pay and agree to reimburse the $8,109.35, or be terminated. After being informed of her options, Petitioner responded that she could not pay the money back. Therefore, she was terminated immediately, effective May 31, 1988. The termination letter states that the basis for dismissal was falsification of records. During the time Petitioner was employed by the Respondent, she was an excellent, hardworking, reliable employee. Her immediate supervisor considered her to be honest. Finally, she was not the type of employee who would try to hide her mistakes. After her divorce became final, Petitioner did not try to hide the fact that she was divorced. She attended Respondent's Christmas party with someone other than her ex-husband, and numerous employees of Respondent's knew she was divorced.
Recommendation Based on the foregoing Findings and of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order reinstating Petitioner to her employment DONE and RECOMMENDED this 3rd day of February, 1989, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 January, 1989. APPENDIX CASE NUMBER 88-3535 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph Accepted. RO1. and 29. Accepted. RO2. Accepted. RO4. Accepted. RO7. and 8. (There are 2 paragraphs numbered 4 on page 5). Accepted. RO8. Accepted. RO9 -13. Accepted generally. See RO14. Accepted generally.' See RO15. and 30. Accepted. ROI6. Accepted. RO17. Accepted generally. ROI8 and 19-23. Accepted generally. R024-26. Accepted. R028. Rejected as irrelevant. Respondent's Proposed Findings of Fact Proposed Findings of Fact Number Ruling and RO Paragraph Accepted generally. RO2. Accepted. See Conclusions of Law section of the RO. Accepted. RO1. Subordinate to facts found. See RO3. Accepted generally. RO5. Rejected as not supported by the weight of the evidence. See RO6. Supported by the evidence but unnecessary to the decision rendered. Accepted. RO4 and 17. Accepted. RO7. First sentence and first part of second sentence accepted. End of second sentence, rejected. Petitioner disclosed the problem to Ms. Osterhout. Accepted. RO8 and 9. Accepted. RO10. Accepted generally. RO10. Rejected. See RO11-13, for the facts found on these issues. Accepted. 15 and 18. Accepted generally, but Petitioner did inform the insurance office twice through Ms. Osterhout. Supported by competent evidence but unnecessary to the decision reached. The evidence also shows that Petitioner did not file medical claims on her son's behalf even though she was still paying for the coverage. Rejected as not supported by the evidence. Petitioner believed her ex-husband was still covered. 19-20. Accepted. RO18 and 19. Petitioner believed her ex- husband was covered by her insurance. Accepted. RO21. Accepted. R022. Accepted. R023. As to the third sentence, Petitioner continued to believe he was eligible. Accepted. R024. Accepted. RO25. Supported by competent evidence, but unnecessary to the decision reached. Accepted. RO25. Accepted. R025. Accepted, generally. Petitioner also never hid the fact she was divorced and it was common knowledge to Respondent s employees. 30-31. Subordinate to facts found. See R026. Accepted. RO26. Accepted. RO27. Accepted. R028. Accepted. RO28. Accepted. R028. COPIES FURNISHED: Joe H. Pickens, Esquire 113 North Fourth Street Post Office Box 2128 Palatka, Florida 32078-2128 John W. Williams, Esquire Office of Legal Services St. Johns River Water Management District Palatka, Florida 32078-1429 Henry Dean Executive Director St. Johns River Water Management Post Office Box 1429 Palatka, Florida 32078-1429
Findings Of Fact During 1977, while licensed as an insurance agent, Mr. Yesnes engaged in a scheme to fraudulently obtain sales commissions from various insurance companies. He submitted applications for insurance coverage without the prior consent of the purported applicants. He obtained the data to fill in their application forms from information contained in previous policy records. This scheme was admitted by Mr. Yesnes when he appeared before a Department of Insurance investigator, Eugene Petree, III, to explain consumer complaints against him related to the bogus applications. On February 24, 1977 Mr. Yesnes, while registered with the Department as a non-resident agent, sold a $50,000 decreasing term life insurance policy to a 65 year old widow, Mrs. Inez Cameron. This sale was made in Pensacola, Florida, where both Mr. Yesnes and Mrs. Cameron were living at the time. The beneficiary of the policy was designated as "the estate of Inez Cameron." When that designation was made, Mr. Yesnes was the legatee of Mrs. Cameron's will. Mr. Yesnes later requested the company issuing the policy, United Presidential Life Insurance Company, to change the beneficiary of the policy to himself by name, but the company refused to make the change. Under the foregoing circumstances it is contrary to the standards of the insurance industry for an agent to sell a policy in which he is made the beneficiary. Mrs. Cameron was a widow and had no known living close relatives. She had established a personal "mother-son" relationship with Mr. Yesnes and for a period of time they lived together. For the last year and a half Mr. Yesnes has been a pizza wholesaler in the Pensacola area. He contracts for a supplier to manufacture the pizzas which Mr. Yesnes then sells to bars and small restaurants who cannot economically produce their own pizzas. According to his present supplier Mr. Yesnes sells a product of a much higher quality than the purchasers should expect to get for their cost. His present supplier, Mr. Meehan, has known Mr. Yesnes for eight to nine months. In his opinion Mr. Yesnes is trustworthy and reliable. He pays his bills on time and keeps his obligations. Mr. Secchiari, the owner of Genos Pizza in Pensacola, is Mr. Yesnes' former supplier. He too believes him to be trustworthy and reliable. In his opinion as an insurance consumer he believes that if licensed, Mr. Yesnes would be better than some life insurance agents and not as good as others. Mr. Yesnes has always been prompt in paying his bills with Mr. Secchiari. Mr. Yesnes was initially licensed as an insurance agent in Florida in February 1965. Three years later he moved to Atlanta, Georgia. He later moved to Pensacola in 1976 where he was employed by the Franklin Life Insurance Company. During that employment he was supervised by Michael Howard, an area manager. Mr. Howard had contact with Mr. Yesnes for a period of eighteen months. On the basis of that experience Mr. Howard is of the opinion that Petitioner is ethically unfit to be in the insurance business. Respondent offered testimony from Ms. Dorothy Dale Godwin and Ms. Sarah Dawson in the form of their opinion of Petitioner's character. This testimony is not accepted as credible. It lacks an adequate foundation because the witnesses contact with Mr. Yesnes was fleeting. Due to their relationship with Mrs. Cameron they are also found to be biased against Mr. Yesnes. On his pending application for licensure Mr. Yesnes gave 804 Royce Street, Pensacola, Florida 32503 as his address for the past five years. In fact, during that time he lived in Atlanta, Georgia; Mobile, Alabama; and at different addresses in Pensacola. He gave the 804 Royce Street address because that is where his father lives. At times Petitioner has lived there and he considers it his permanent address. At no time during these proceedings has Petitioner expressed regret for any past unprofessional actions. He has also not expressed any commitment not to engage in unprofessional behavior in the future, if licensed to sell insurance in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent, Department of Insurance and Treasurer, enter a final order denying the application of Ivan Yesnes for a license as a life agent in the State of Florida. DONE and RECOMMENDED this 14th day of July, 1981, in Tallahassee, Florida MICHAEL PEARCE DODSON 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 14th day of July, 1981.
Findings Of Fact At all times pertinent to the matters herein, the Respondent, Department of Insurance, was the state agency in Florida responsible for the regulation of the insurance profession and the licensing of insurance agents in this state. Petitioner, Dale J. Dyer, was licensed as a health insurance agent in this state but his license had been suspended by the Department as the result of a disciplinary action in November, 1991, and was, at the time of the alleged misconduct, in a suspended status. The suspension period for Petitioner's license expired in May, 1992 and he thereafter applied for reinstatement of his license. The Department denied his application for reinstatement in July, 1992 because on or about June 19, 1991, a check for $13,971.00, made payable to Transport Life Insurance Company by Thiel Liukens, as payment for a nursing home policy to be issued, was deposited by Paula Dyer, Petitioner's wife and herself a general agent for Transport, to an agency bank account controlled by Ms. Dyer and upon which Petitioner was an authorized signatory. This check was neither transmitted to the insurance company nor returned to Mr. Liukens, nor was the coverage for which it was issued ever initiated. Petitioner met Mr. Liukens in late 1990 when he tried to sell him a Medicare supplement policy. He was not the one who sold him the policy in issue in June, 1991, however, nor did he either solicit or receive a check from him. In fact, there is no evidence he knew he had taken out this policy or paid by check. He had nothing to do with this policy, check or payment. Petitioner's wife, Paula, owns and operates the Paula A. Dyer & Associates agency. At the time in issue, he claims, he had nothing to do with the agency. He claims he did not help run it, didn't supervise any of the employees, and was neither an officer nor director. However, he was, with his wife, a signatory on the firm's checking account and several other accounts as well. He has drawn funds from the company account, as well as the others, for personal or business expenses and to facilitate the conduct of business in his wife's absence. Mr. Dyer asserts that premium deposits from Dyer and Associates agents were not to be deposited to that account. He did not know if they were, however. In any case, he denies ever consciously disbursing funds belonging to any insurance company from that account. To his knowledge, he never disbursed or took any funds from the Liukens payment to Transport Life Insurance Company nor, during 1991, did he have any relationship with that company. This was verified by Mrs. Dyer. Paula A. Dyer & Associates had netting authority with Transport which authorized it to deposit checks made payable to Transport to the agency account and thereafter remit to Transport the net premium portion due the company, retaining the balance as commission. There was no limitation on how the agency portion was to be used. The agency's checking account to which the Liukens check was deposited was with the Barnett Bank. As was stated above, both Dyers were cosignatories on the agency account because, though Petitioner was neither an officer, stockholder, director, nor employee of the agency, he had loaned his wife the money to open it and she wanted him to be able to get money if she were not available. The agency books were kept by a bookkeeper. The policy in issue here was solicited by Pedro Rodrigues, an agency employee, who received the instant check as a premium payment. The check, dated July 2, 1992, was thereafter deposited in July, 1991 to the agency account. Of the total amount of this check, slightly over $7,000.00 was the agency commission which was available for unrestricted use, including the personal use of Ms. Dyer or the Petitioner. Clearly a check written in July, 1992 could not be deposited in July, 1991, a year before being written. Consequently, it is found that the check was dated in error by the drafter. This is not the only error in dates in this matter, however. Mr. Stewart's July 21, 1992 letter of denial to Petitioner reflects the Liukens check was written on or about June 19, 1991. This is clearly not so. Records of the Barnett Bank for the time in issue reflect an account in the name of Paula A. Dyer & Associates, Inc., (Account No. 1263515600), on which the authorized signatories were Paula A. Dyer or Dale J. Dyer. Another account, in the name of Senior Trust of Florida, Inc., (Account No. 1263288130), showed David B. Judy as President, Paula A. Dyer as Secretary/Treasurer, and Dale J. Dyer as shareholder. All were signatories on this account. A third account, (Account No. 1264759744) was a joint account of Dale J. Dyer and Paula A. Dyer. The Liukens check was deposited to the Paula A. Dyer & Associates account and, after endorsement by Mrs. Dyer, cleared. Thereafter, numerous checks were written on that account. During the period June 28, 1991 to July 28, 1991, 11 deposits, totalling almost $66,500.00 were made to it and at the end of the period, the account had a balance of slightly over $21,000.00. From July to August, 1991, 14 deposits to the account totalled in excess of $65,600.00 and the ending balance for the period was $15,561.07. From August 30 to September 30, 1991, ten deposits totalled $18,590.29 and the ending balance for the period was $2,206.97, Among the checks written on the company account during the period were: $10,000 to Paula A. Dyer, deposited to the joint personal account. $8,000 to Senior Trust. $700 to Dale J. Dyer. $12,000 by Dale Dyer to Senior Trust. $945 by Dale Dyer to Willis Kelsey. $2,000 by Dale Dyer to Princess Casino (resort). $1,475 by Paula Dyer to Paula Dyer and deposited to the joint personal account. $600 by Paula Dyer to Senior Trust $2,000 by Paula Dyer to the joint personal account. $1,600 by Paula Dyer to Paula Dyer and deposited to joint personal account. In August, 1991, Transport Life Insurance Company was contacted by an attorney for Mr. Liukens about the check he had written to it for an insurance policy. When the company responded it had no knowledge of the check and had received no funds on his behalf, it was sent a copy of the check endorsed by Ms. Dyer and negotiated by her. A company representative then contacted Ms. Dyer about the check she had received. She acknowledged she had deposited it to her agency account and submitted a check for $971.00 in partial restitution. None of the balance has ever been repaid by Ms. Dyer, the agency, or anyone else, and in September, 1991, Transport Life terminated its agency agreement with Paula A. Dyer & Associates, Inc. It also repaid Mr. Liukens in full. According to Transport Life's representative, Mr. Shellhase, the company has no indication Petitioner had anything to do with this transaction nor any information he conspired with anyone to defraud Transport or Mr. Liukens. By Final Order dated May 3, 1990, the Florida Insurance Commissioner took disciplinary action against Petitioner's license as an insurance agent in Florida for several violations of Section 626.11, Florida Statutes, and several other violations of Section 626.9541, Florida Statutes. The specific violations found were not established at the instant hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Petitioner's application for reinstatement of his health license be approved. RECOMMENDED this 1st day of February, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 February, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-5094 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner's counsel's proposed findings of fact were not specifically numbered. However, for the purposes of this Recommended Order they will be considered as numbered starting with the third paragraph on page 2 of the Proposed Recommended Order and continuing through the fifth paragraph on page 4. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence not proven. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 14. Accepted and incorporated herein. 15. & 16. Accepted and incorporated herein. However, evidence was introduced that during the period in question, Petitioner wrote checks totalling $14,945.00, a sum exceeding the amount represented by the Liukens check. FOR THE RESPONDENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. 9. - 11. Accepted and incorporated herein. (misnumbered 11 in PFOF). Accepted and incorporated herein. (misnumbered 12 in PFOF). Accepted and incorporated herein. (misnumbered 13 in PFOF). Accepted that the accounts were closed as indicated, but there is no evidence as to what was done with the funds therein. (misnumbered 14 in PFOF). Accepted and incorporated herein. COPIES FURNISHED: John L. Maloney, Esquire 5335 66th Street N., Suite 4 St. Petersburg, Florida 33709 James A. Bossart, Esquire Division of Legal Services Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
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 has standing to challenge Rule 4-154.106(8)(c), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes? If so, whether the rule is an invalid exercise of delegated legislative authority? Whether either party is entitled to attorney's fees?
Findings Of Fact The Challenged Rule Rule 4-154.106(8)(c), Florida Administrative Code, ("the challenged Rule") reads as follows: A policy which provides coverage for any one or more of the following services shall be considered a limited benefit policy if it either provides coverage for a benefit period of one year or less for each covered service, or provides coverage for only one of the following services; otherwise, such a policy shall be considered a long-term care policy as defined in s. 627.9404: Nursing home; Nursing service; Adult congregate living facility; Home health agency; Adult day care center; Adult foster home; Community care for the elderly; Personal care and social services. Petitioner's Ex. No. 2. New on January 1, 1975, and initially numbered Rule 4-37.06, the rule was amended on May 17, 1989. At the time of the amendment, the rule listed as specific authority "627.643, 624.308, 627.9407(1), Florida Statutes," id, and as law implemented "627.642, 627.643, 627.9404(1), Florida Statutes. The Parties Guarantee Trust Life Insurance Company is an insurance company which does business in Florida and is regulated by Respondent, the Department of Insurance. Guarantee Trust had and does issue insurance policies in those lines and kinds of insurance governed by the challenged rule. The Department of Insurance is the state agency invested with the responsibility of enforcing the provisions of the state Insurance Code and executing the duties imposed upon it by the code. Section 624.307(1), Florida Statutes. It is conferred with discretion to "adopt reasonable rules necessary to effect any of [its] statutory duties." Section 624.308, Florida Statutes. Standing A recent insurance policy filing by Petitioner was denied by the Department. Among the grounds for denial contained in a "letter of deficiencies" was one based on the policy's violation of the challenged rule. At the time of hearing, the Department had attempted to amend the letter of deficiencies by motion to eliminate application of the challenged rule to the policy filing as a ground for its denial. But the motion had not been ruled on by the time of hearing, having been filed only six or seven days earlier. Although the Department has not yet made an effort to provide general notice to the companies it regulates that it has or will cease relying on the challenged rule, the Department's current practice with regard to the rule is that it is not enforcing the rule. Consistent with this practice, the Department has received filings that it would not have approved had it been applying the challenged rule. Yet, these filings, four or five in number, have been approved. Instructions have been issued within the Department not to apply the challenged rule to filings. Consistent with the instructions with regard to application of the challenged rule, the Department is uniformly applying the change in policy. There is no insurance company subsequent to the policy change and decision to no longer apply the rule whose policy has been denied on the basis of application of the challenged rule. In the case of Petitioner's disapproved filing now the subject of a Section 120.57 proceeding, non-compliance with the challenged rule "no longer exists as a deficiency" (Tr. 43) in the view of the Department.
Findings Of Fact On or about September 24, 1982, the Petitioner, Donald Ray Shelton, submitted his application to the Department of Insurance in order to become licensed as an Ordinary Life including Disability agent in the State of Florida. On January 21, 1983, the Department of Insurance, by letter, notified Petitioner that his application for examination and licensure as an Ordinary Life including Disability agent had been denied. That letter, in summarizing the grounds for denial, stated: The reason for the denial is because on your application for license you failed to note that you had been charged with a felony, your record of issuing worth- less checks and your record of traffic offenses. Additionally, on a previous application for license processed by the Department of Insurance for examination, you gave false information, i.e., social security number, birthplace, residence address, employment history and license history as insurance agent. One of the grounds for denial related to an application filed with the Department by American Republic Insurance Company in March, 1981. (See Respondent's Exhibit 1.) The social security number, birthplace, residence address, employment history, and license history as an insurance agent were all false. This information had been entered on the application by the Petitioner during a job interview with American Republic. The petitioner signed the application but did not sign in the presence of a notary. Petitioner also signed an additional application form titled Application for State and County License as Life/Disability Agent. (See Joint Exhibit No. 2.) This form did not require a notary. The interview with American Republic had been arranged by a close friend and the Petitioner gave the false information in order to not appear disinterested. He, however, did not want his friends, relatives, and business associates being bothered by a background investigation for a job he was not going to accept. The Petitioner had not intended for the March, 1981, application to be filed with the Department of Insurance, because he had no intention of going to work for American Republic. He learned that the application had been filed when he received notification that he had been approved for taking the examination. He did not take the examination. He did not notify the Department of Insurance that the application was filed without his knowledge or authorization. In October, 1982, Petitioner sent a letter of explanation to the Department after inquiry was made about the March, 1981, application in connection with the processing of the current application. (See Petitioner's Exhibit No. 1.) Another ground for denial by the Department was the Petitioner's failure to disclose he had been arrested for a felony, auto theft. Petitioner unequivocally denied ever having been arrested or charged with auto theft or any other felony. The evidence offered by the Department did not establish that the Petitioner had ever been arrested for larceny of an auto or that larceny of an auto as set forth in the Index to Criminal Records (Respondent's Exhibit 3) was a felony. petitioner did not fail to disclose an arrest for or charge of larceny of an auto. The application form does not ask for nor provide a space for the disclosure of traffic, bad check offenses, or other non-felony offenses. On October 29, 1980, the Petitioner pled guilty and was found guilty of the crime of worthless checks. The offense arose out of a check written to the Army Store on June 8, 1980, in the amount of $149.46, and returned due to the account being closed. The check was signed by Petitioner and was check number 126. The face of the check reveals that the account was in the name of "Donald R. Shelton" and "Vickie Shelton". Petitioner was sentenced to six months imprisonment which was suspended for two years, two years probation, and payment of restitution, and court costs. This conviction occurred in Case Number 80 Cr 4469, 30th District Court, Baywood County, North Carolina. Also, on October 29, 1980, Petitioner pled guilty to six other worthless check charges. Court records reveal the following information with regard to those convictions. Case No. 3205 involved Check No. 107 written to Bilo in the amount of $60.57 on March 1, 1980, and returned not paid because of insufficient funds. Case No. 80 Cr 2639 arose out of Check No. 3 written to Ingles on February 22, 1980, in the amount of $37.49 and returned not paid because of insufficient funds;. This check is a counter check without the name and address of Petitioner and Vickie Shelton printed on it. The check number is written on the check rather than pre-printed. Case No. 80 Cr 4053 arose out of Check No. 108 written on March 4, 1980, to Gas & Groceries in the amount of $21.30 and returned not paid because of insufficient funds. Case No. 80 Cr 4054 involved Check No. 105 written on March 1, 1980, to Gas & Groceries in the amount of $23.60 and returned not paid because of insufficient funds. Case No. 80 Cr 6027 involved Check No. 120 written to Potts Texaco on June 7, 1980, in the amount of $25.50 and returned not paid because of account closed. Case Nos. 80 Cr 2639, 80 Cr 4053, 80 Cr 4054, and 80 Cr 6027 were consolidated and for the conviction in these four cases, Petitioner was sentenced 30 days imprisonment suspended for two years with two years probation and restitution on each check and court costs in each case. This sentence was to begin following completion of the sentence in Case No. 80 Cr 4469 discussed in Paragraph 7 above. In Case No. 3205, Petitioner was sentenced to six months imprisonment, suspended for two years with two years probation and payment of restitution and court costs. All of the checks in these cases were written on the same account. This account was a joint account with Petitioner and his ex-wife as signatures on the account. On January 9, 1981, the Petitioner pled guilty and was convicted of worthless checks. That charge arose out of Check No. 109 written on March 4, 1980, to John Graham's in the amount of $259.98 and returned not paid because of insufficient funds. He was sentenced to pay court costs plus restitution. On February 16, 1981, the Petitioner pled guilty to the crime of worthless checks. The charge involved Check No. 101 written to Sky City on February 28, 1980, in the amount of $33.58 and returned not paid because of insufficient funds. Petitioner was convicted and sentenced to pay court costs plus restitution. On February 25, 1981, after making full restitution, the two year probation was terminated by the Court. Each of the worthless checks discussed above was written in February, March, or June, 1980. During the period August, 1979, to July, 1980, the Petitioner was unemployed. During this period, Petitioner was also going through a hotly contested divorce and checks were being written on the joint account by his now ex-wife without his knowledge. During this time, Petitioner did not make an effort to determine the balance in his checking account. The Petitioner has been convicted of the following traffic offenses: September 24, 1970: Speeding. September 18, 1970: Violation of quiet zone ordinance. September 23, 1971: Expired inspection sticker. October 19, 1972: Driving under the influence. Petitioner was 17, 18, and 19 years old when the offenses occurred. From April, 1977, to August, 1979, the Petitioner was employed by Globe Life Insurance Company in the State of North Carolina. Until August 1, 1979, Petitioner was a licensed Life and Accident and Health Agent in the State of North Carolina. The Petitioner is an agent in good standing with the Department of Insurance of the State of North Carolina. He had no complaints made against him or his license while selling insurance for Globe Life. He was a good, reliable agent while with Globe Life.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner's application for licensure be granted conditioned upon passing the required examination and payment of the necessary fees. DONE and ENTERED this 15th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 15th day of August, 1983. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301 Donald Ray Shelton Post Office Box 155 Grand Island, Florida 32735 Ruth Gokel, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
The Issue Should discipline be imposed by Petitioner against Respondent's licenses as a life agent (2-16), life and health agent (2-18), and health agent (2-40), held pursuant to Chapter 626, Florida Statutes (2004)?
Findings Of Fact Respondent in accordance with Chapter 626, Florida Statutes (2005), currently holds licenses as a life agent (2- 16), life and health agent (2-18), and a health agent (2-40). On June 24, 2003, in an Administrative Complaint brought by Petitioner against Respondent, also under Case No. 64776-03-AG, accusations were made concerning violations of Chapter 626, Florida Statutes (2003). On October 4, 2004, the parties resolved the earlier case through a settlement stipulation for Consent Order. On October 20, 2004, the Consent Order was entered. In pertinent part the Consent Order stated: The Settlement Stipulation for Consent Order dated October 11, 2004, is hereby approved and fully incorporated herein by reference; * * * (c) Respondent agrees that he has a continuing obligation for claims, which may not have arisen or otherwise be known to the parties at the time of the execution of the Settlement Stipulation for Consent Order and this Consent Order Respondent shall be responsible for satisfying claims that were covered under the Plans sold by Respondent, up to the amount covered by such Plan, less any applicable deductibles or co-payments. Respondent may attempt to negotiate with the providers for compromised amounts, but any such compromise must result in the release of the consumer from any responsibility for the amounts that would have been covered under the terms of such Plan, less any applicable deductibles or co-payments; * * * (f) Within ninety (90) days following the issuance of this Consent Order, the Respondent shall complete the Section 626.2815(3)(a), Florida Statutes, continuing education requirement relative to unauthorized entities; * * * Within thirty (30) days of the issuance of this Consent Order, Respondent agrees to pay to the Department, a fine, in the amount of ONE THOUSAND AND 00/100 ($1,000.00) DOLLARS. Within ninety (90) days following the issuance of this Consent Order, Respondent shall satisfy any unpaid claims for persons insured under the Local 16 Plans he sold, including claims which may not have arisen or otherwise be known to the parties at the time of the execution of the Settlement Stipulation for Consent Order and this Consent Order. Respondent shall only be responsible, however, for satisfying claims that were covered under the Plans sold by Respondent, up to the amount covered by such Plan, less any applicable deductibles or co- payments. Respondent may attempt to negotiate with the providers for compromised amounts, but any such compromise must result in the release of the consumer from any responsibility for the amounts that would have been covered under the terms of such Plan, less any applicable deductibles or co- payments; Within one hundred (100) days following issuance of this Consent Order, the Respondent shall provide proof to the Department that the full amount of claims or losses under all contracts or health plans solicited or sold by Respondent on behalf of Local 16 have been paid or satisfied. Failure of the Respondent to comply with this paragraph shall constitute a material breach of this Consent Order, unless otherwise advised in writing by the Department; Respondent in the future shall comply with all the terms and conditions of this Consent Order; and, shall strictly adhere to all provisions of the Florida Insurance Code, Rules of the Department, and all other laws of the State of Florida. The Respondent shall give the Department full and immediate access to all books and records relating to the Respondent's insurance business, upon request; If, in the future, the Department has good cause to believe that the Respondent has violated any of the terms and conditions of this Consent Order, the Department may initiate an action to suspend or revoke the Respondent's license(s) or appointments, or it may seek to enforce the Consent Order in Circuit Court, or take any other action permitted by law; Respondent paid the $1,000.00 administrative fine required by the Consent Order, but the payment was 20 days late. Respondent completed the continuing education on unauthorized entities. He completed the course on June 3, 2005, beyond the deadline called for in the Consent Order by a number of months. Respondent took the course at Florida Community College in Jacksonville, Florida, an institution that he was familiar with. He took the course to be completed on June 3, 2005, because it was the earliest course available at that school. Respondent was unfamiliar with other schools who may have offered the course at a time that would meet the due date set forth in the Consent Order. Consistent with the expectations in the Consent Order, Petitioner's employees have reviewed their files to determine whether Respondent has satisfied unpaid insurance claims in relation to the insurance plan for Local 16. Those employees involved in that review are Kerry Edgill, a legal assistant in the Legal Division in charge of complaint settlements and Pamela White who works with the Division of Consumer Services as a senior management analyst. Neither employee found any evidence that Respondent had satisfied the unpaid insurance claims as called for in the Consent Order. In correspondence from Respondent to Petitioner's counsel in this case, dated December 6, 2004, there is no indication that the unpaid insurance claims have been satisfied. Respondent in his testimony explained the extent to which he had attempted to determine who had outstanding unpaid insurance claims. Respondent went to the location where Local 16 union members were employed. His contact with union members had to be outside the building proper. He spoke to several members at that time. This contact took place on June 1, 2005. Respondent identified the persons contacted as James, Luther, Gregory, and Michael. Michael's last name may have been Williams, as Respondent recalls. Of the persons Respondent spoke with on June 1, 2005, none of them had an unpaid insurance claim which needed to be satisfied. Respondent provided correspondence to a person or persons whose name(s) was or were not disclosed in the testimony. The June 6, 2005, correspondence was addressed to the Amalgamated Transit Union, in reference to insurance claims for Local 16. Respondent's Exhibit Numbered 17 is a copy of that correspondence. In the body of the correspondence it stated: June 6, 2005 Amalgamated Transit Union Local 1197 P.O. Box 43285 Jacksonville, FL 32203 Re: Claims for Local 16 To union members and trustees, This letter is to follow up me meeting members at the station on June 1, 2005 to discuss any issues or concerns that you may be or have had relating to the unpaid claims with Local 16 National Health Fund. Although, I feel I am not responsible for the issue I would gladly help assist with resolving any problems or concerns that you may have. Should any members have any correspondents that need immediate attention please forward them to me at: David Bright, P.O. Box 441963, Jacksonville, FL 32222. Should you need to speak to me I can be reached at 904-207-0141. Thanks for your cooperation in this long due matter! In relation to what Respondent refers to as accounts for Local 16 which he was servicing, that refers to insurance coverage, it involved a couple of hundred insureds. Respondent in his testimony acknowledged that union members had insurance claims that were unpaid.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 626.611(7) and (13), and 626.621(2) and (3), Florida Statutes (2004), finding no violation of Section 626.611(9), Florida Statutes (2004), or 626.9521, Florida Statutes (2004), and suspending Respondent's respective licenses as a life agent (2-16), life and health agent (2-18), and health agent (2-40), for a period of six (6) months. DONE AND ENTERED this 7th day of October, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 7th day of October, 2005.
The Issue The issue in this case is whether Respondent, Thomas Felix Diaz, has violated various provisions of the Florida Insurance Code as alleged in an Administrative Complaint dated March 26, 1992 and, if so, what disciplinary action should be imposed against his license as an insurance agent in Florida.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times relevant to this proceeding, Respondent was licensed in this state as a life insurance agent. Respondent is currently licensed as a life insurance agent, as a life and health insurance agent, and as a health insurance agent. At all times pertinent to this proceeding, Respondent was appointed to sell life insurance with Mass Indemnity and Life Insurance Company (MILICO) which has recently changed its name to Primerica Financial Services. In that capacity, all funds received by, from or on behalf of consumers, representing premiums for insurance policies, were trust funds received in a fiduciary capacity and were to be paid over to an insurer, insured, or other persons entitled thereto in the regular course of business. Sometime around March of 1991, the president of Delta Picture Frame Company ("Delta" or the "Company") of Miami decided to change the health insurance for two of his employees. The insurance was being provided at company expense. The prior policy included a small life insurance component as part of the coverage. The president of the Company contacted the MILICO agency to inquire regarding their group health policy and asked to see an agent. On or about March 18, 1991, Respondent accompanied another agent for MILICO, Nelson Barrera, to Delta's office to meet with the president of the Company. At the time of the meeting, Respondent was only licensed as a life insurance agent. He did not obtain his health and life license until approximately April 15, 1991. At the meeting, Barrera explained the coverage and price for health insurance. The president of Delta agreed to purchase the health insurance policies but never verbally expressed any interest in purchasing life insurance for his employees. In fact, he specifically rejected a proposed life and health insurance package stating that the company would only pay for health insurance. Respondent spoke separately with the employees. Applications for both life and health insurance were filled out and signed by the employees. The evidence was inconclusive as to whether life insurance was actually discussed with either of the employees. Only one of the employees testified at the hearing. She verified her signature on the application for life insurance, but she claims that she only discussed health insurance with the agents and did not knowingly apply for life insurance. The president of Delta signed the last page of the life insurance applications which authorized automatic withdrawals to pay MILICO for the life insurance policies. The circumstances surrounding the execution of the life insurance applications was not clearly established by the evidence.. However, the evidence was clear that the president of the Company never intended to purchase life insurance and never knowingly agreed to authorize bank withdrawals for life insurance. The evidence established that the president of the Company clearly indicated that the Company would only pay for health insurance and he never knowingly assented to the issuance of life insurance policies for the employees at company expense. When the president of the Company noticed that the bank records reflected withdrawals payable to MILICO, he inquired further and learned that the deductions were for life insurance. He immediately called Respondent who agreed to cancel the life insurance policies and provide a refund. Respondent was entitled to receive a commission of 75 percent of the first year's premiums for the sale of the life insurance policies to the employees of Delta.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance issue a Final Order finding Respondent guilty of violating Section 626.621(6) and that Respondent's licenses be suspended for a period of three months, or, in lieu of a suspension, Respondent should be required to pay to the Department a fine of $500 and be placed on probation for a period of two years subject to such terms and restrictions as the Department may apply. RECOMMENDED this 3rd day of June 1993, at 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 3rd day of June 1993.
The Issue This case concerns the issue of whether Respondent's license as an Ordinary Life including Disability agent should be suspended, revoked, or otherwise disciplined for making certain misrepresentations to a Mr. Roger L. Robert in connection with the sale of a life insurance policy to Mr. Robert. A second issue relating to such disciplinary action is whether the Respondent improperly applied to become an insured under a group insurance policy. At the formal hearing, the Petitioner called as witnesses John E. Riley, Roger L. Robert, Angela Stackler, Marie Ellena Mullins, Frederick P. Quinn. The Respondent called as witnesses Baron Kramer, and the Respondent, Stanford J. Sabarsky. The Petitioner offered and had admitted into evidence Petitioner's Exhibits 1 through 7. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law to the Hearing Officer for consideration. To the extent that the findings of fact herein are consistent with those proposed findings, the proposed findings were adopted by the Hearing Officer. To the extent that the findings herein are inconsistent with the proposed findings the proposed findings were considered by the Hearing Officer and rejected as having been unsupported by the evidence or as being unnecessary to the resolution of this cause.
Findings Of Fact COUNT I As to Count I of the Administrative Complaint, the parties stipulated to certain facts alleged in the Administrative Complaint, and those facts are found as facts in Paragraphs 1 through 9 below: Respondent, Stanford J. Sabarsky, at all times material herein, represented the All American Life Insurance Company as a licensed Ordinary Life, including Disability Agent. Stanford J. Sabarsky did on or about September 16, 1980, contact one Roger L. Robert, President of Freight Sales Centers, Inc. of Tampa, Florida for the purpose of soliciting an application for life insurance from Mr. Robert. At that time and place, Respondent represented to Mr. Robert that he could purchase a seven hundred fifty thousand dollar ($750,000.00) life insurance policy to be issued by the All American Life Insurance Company with an initial annual premium payment of fourteen thousand two hundred and eighty-five dollars ($14,285.00) As a result of said application, the All American Life Insurance Company subsequently issued to Mr. Robert policy number L1124920 effective November 11, 1980, in the face amount of seven hundred fifty thousand dollars ($750,000.00). Premium payments on policy number L1124920 were made by Mr. Robert on a monthly basis from October, 1980, to November, 1981. On or about November, 1981, Mr. Robert received notice from the All American Life Insurance Company that the second annual renewal premium on policy number L1124920 was due. On or about December 4, 1981, Mr. Robert requested that the renewal premium be paid from the cash value of his policy. As a result of the request, the second year annual renewal premium on policy number L1124920 was paid for by a policy loan against said policy, thereby reducing the net insurance protection of that policy. That Respondent, Stanford J. Sabarsky, earned a sales commission due to the issuance of policy L1124920. Prior to purchasing policy L1124920, Mr. Robert was given a sales presentation in his office by the Respondent. It was represented to Mr. Robert, by Mr. Sabarsky, that after the first year's premium was paid, the premium would thereafter be paid by the cash value and he would not have to make any more premium payments. Mr. Sabarsky also explained to him that the cash value could be borrowed out of the policy at approximately seven percent interest. It was Mr. Robert's understanding that after he paid the first year's premium, he would never have to pay out any more money for the life insurance coverage. He expressed this understanding to Angela Stackler, an employee, in the presence of Respondent, and Respondent did not inform him that his understanding was incorrect. In approximately November, 1981, Mr. Sabarsky returned to Mr. Robert's office. At that time, Mr. Sabarsky was questioned by Mr. Robert and his employee Ellena Mullins about the fact that they had received a bill for the next year's premium. In response to the inquiry, Mr. Sabarsky related that the first year's premium would carry the policy and that Mr. Robert wouldn't have to pay any more money. Mr. Sabarsky did not explain to Mr. Robert in November, 1980, or in November, 1981, the out-of-pocket expense which Mr. Robert would have to pay each year in order to borrow the cash value to pay the premium. In order to obtain those loans annually, Mr. Robert, within six years of the policy, would have out-of-pocket interest expense of $3,779.00, and in ten years, would pay interest of $10,163.00 in order to maintain the policy in effect. On April 1, 1982, Mr. Robert, after making inquiry to All American Life Insurance Company, received a letter setting forth the out-of-pocket expenses which would be required of him in order to maintain the life insurance policy in effect. COUNT II As to the allegations of Count II of the Administrative Complaint, the parties stipulated to those facts found in Paragraphs 14 through 16 below. That at all times pertinent to the dates and occurrences referred to in this Administrative Complaint, Respondent, Stanford J. Sabarsky, was qualified and licensed as an insurance agent in this state. On or about January 29, 1979, Stanford J. Sabarsky, while licensed as an insurance agent for Home Security Life Insurance Company, did solicit and sell to Roger L. Robert, President of Freight Sales Center, Inc. of Tampa, Florida, a group disability insurance plan for the employees of Freight Sales Center, Inc. That on or about February 12, 1981, Stanford J. Sabarsky, signed an application to Home Security Life Insurance Company to have his name added to said group disability insurance plan and indicated on said application that he was an employee of Freight Sales Center, Inc. Prior to signing the application on February 12, 1981, the Respondent had asked Roger L. Robert to allow him to add his name to the group disability insurance plan of Freight Sales Center, Inc. As a result of the February 12, 1981, application, the Respondent was, in fact, added as an insured to the group disability insurance policy. He remained as an insured under the policy until approximately May, 1981. In March, 1981, the Respondent submitted a claim to Home Security Life Insurance Company. The claim was paid. The application signed by the Respondent (Petitioner's Exhibit 6) on February 12, 1981, reflected that he worked a minimum of 30 hours per week for Freight Sales Center, Inc, that his date of employment was 1/30/81, and that his base earnings was $600 per week. These facts were not true. At no time from January 30, 1981, to May, 1981, was the Respondent an employee of Freight Sales Center, Inc. The Respondent was aware at the time that he signed the application that he was not an employee of Freight Sales Center, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order suspending Respondent's license as an Ordinary Life including Disability agent for a period of one (1) year. DONE and ENTERED this 12th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 12th day of August, 1983. COPIES FURNISHED: William W. Tharpe, Jr., Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 George W. Greer, Esquire 302 South Garden Avenue Clearwater, Florida 33516 Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301
