The Issue Should discipline be imposed by Petitioner against Respondent's licenses as a general lines agent (2-20) and Florida Residential Property and Casualty Joint Underwriters Association (FRPCJUA) agent (0-17), held pursuant to Chapter 626, Florida Statutes (2001)?
Findings Of Fact Facts Admitted by Answer Pursuant to Chapter 626, Florida Statutes, you Jennifer L. Faloon, currently are licensed in this state as a general lines (2-20) agent and a FRPCJUA (0-17) agent, and were so licensed at all times relevant to the dates and occurrences referenced herein. Your license identification no. is A080736. Pursuant to Chapter 626, Florida Statutes, the Department of Financial Services has jurisdiction over your licenses and appointments. At all times relevant to the dates and occurrences referenced herein you, Jennifer L. Faloon, were employed with Beck Insurance, in Jacksonville, Florida. Additional Facts Established by Responses to Requests for Admissions Respondent was licensed as a general lines (2-20), and a Florida Residential Property and Casualty Joint Underwriters Association (0-17) agent, in Florida, from June 25, 2001, until and including the present time. From June 25, 2001, until and including February 19, 2002, Respondent was employed with Beck Insurance, in Jacksonville, Florida. Respondent signed the insurance application on February 19, 2002, to bind coverage for Ms. Wilson (Danyetta Wilson). Respondent signed the insurance application on January 21, 2002, to bind coverage for Mr. Appling (Marc Appling). Respondent signed the insurance application on January 22, 2002, to bind coverage for Ms. Brown (Laura Brown). Anna Michelle Mack transacted insurance business with Laura Brown on January 22, 2002. Respondent signed the insurance application on June 25, 2001, to bind coverage for Mr. Henderson (William Henderson). Respondent's Duties at Beck Insurance Respondent began her employment with Beck Insurance, in September 1996. She began as an unlicensed person. While working with Beck Insurance she obtained her (4-42) license allowing limited customer service related to the sale of automobile insurance. She subsequently obtained her (2-20) insurance agent license related to property and casualty, which would allow the sale of automobile, homeowners, and commercial insurance. Prior to this case Respondent has had no complaints filed against her in her capacity as insurance agent. In addition to selling insurance at Beck Insurance, Respondent is familiar with ancillary products offered through that agency. In particular, she is familiar with the sale of contracts involving towing a disabled car operated by a party who has contracted for those services. Respondent is also conversant with rental car contracts sold at Beck Insurance. The rental car contract allows for the customer to rent a car when the customer's personal car is unavailable. During the years 2001 and 2002, the years in question in this case, Respondent served as a supervisor at Beck Insurance in her capacity as a licensed (2-20) agent for persons employed by Beck Insurance, both unlicensed and licensed. The licensed agents that she had supervisory responsibility for were (4-42) limited or unlimited customer service licenses for automobile insurance and (4-40) full customer service agents. Respondent also was expected to deal with issues of underwriting for the insurance policies sold. As few as five and as many as ten agents were employed with Beck Insurance in the relevant time frame. This included another supervising (2-20) agent named Lon Woodward. Both Respondent and Mr. Woodward supervised the licensed (4-42) and (4-40) agents at Beck Insurance, who could not conduct business without supervision from the licensed (2-20) agent. The office hours in the relevant time period were from 9:00 a.m. to 6:00 p.m. Monday through Friday, and 9:00 a.m. to 5:00 p.m. on Saturday. In any given month in excess of 100 customers might be served. Not all activities in providing service were in relation to writing insurance policies. Beck Insurance, at times relevant to the inquiry, represented numerous insurance companies involved with the sale of automobile insurance. The clientele that purchased automobile insurance from Beck Insurance was principally constituted of persons with problematic driving records, including suspensions, DUIs, lapses in coverage, as well as persons who only intended to pay the minimum amount necessary for a premium to obtain insurance that would allow that person to operate a motor vehicle in Florida. As a non-standard agency, the majority of Beck Insurance customers are persons who would not be provided insurance by the standard insurance companies such as State Farm, AllState, and Nationwide. Typically, when a customer initially contacted Beck Insurance by telephone they wanted the best price. In response, the Beck Insurance employee would consider the price structure among the 35 insurance companies represented by Beck Insurance to choose the most economical policy. When telephone inquiries were made about purchasing automobile insurance through Beck Insurance no mention was made of the All World towing and rental plan. Beck Insurance trains its employees in the manner those employees will serve the customers. Respondent was included in that training, having received training and provided training in those approaches. Ordinarily when a customer inquired concerning the purchase of automobile insurance at Beck Insurance, he or she was asked about the type coverage he or she was interested in purchasing. Information was gathered concerning the automobile to be insured. A questionnaire was completed. Within that document is a reference to towing and rental car reimbursement coverage, as well as information about the automobile insurance itself. The questionnaire which was used at times relevant to this case sought information about the customer and the use of the automobile that was being considered for coverage with blanks being provided to the left of the questions for initialing by the customer and blanks to the right for an affirmative or negative response. By contrast to other items, item 11 within the questionnaire was declarative in nature. It had a space for the initials of the customer, but not one to declare acceptance or rejection of what was described. By its terms it stated: "Motor Club - I am aware that towing and rental car reimbursement is optional. I want to carry this coverage. (This coverage can only be renewed by coming into the office, as it is not written with your auto carrier)." The parenthetical reference within item 11, was by smaller type, unlike the interrogatories that were found within the questionnaire. The statement in item 11 has an internal contradiction. In its initial sentence, it talks about the optional opportunity to obtain towing and rental car reimbursement, but it is followed by a sentence which says that the customer wants to carry the coverage with no apparent opportunity within the document to decline that coverage. Moreover, at the bottom of the questionnaire, there was the opportunity for the customer to say that he or she did not want to carry and was rejecting bodily injury liability, uninsured motorist, medical payments, comprehensive and collision, and custom or special equipment coverage, by initialing the blank provided with each category of coverage, but there was no similar opportunity to reject the towing and rental car reimbursement that was described earlier in the document. The insurance coverages were referred to as optional, as was towing and rental. An example of the text within the document, aside from its execution, is found as Petitioner's Exhibit numbered 5. The execution of that document will be discussed subsequently in relation to the customer Danyetta Wilson. According to Respondent, the typical customer for automobile insurance at Beck Insurance is told "In this price we are also giving you towing and rental reimbursement." The nature of the plan for towing and rental is described. For example, if it is Plan 3, the customer is told "you will receive free tow reimbursements for six months for $100.00 each. You will also receive -- -- if you are involved in an automobile accident with another vehicle and you have to have your vehicle in a shop for repair, you will receive $25.00 a day reimbursement for five days. These claims have to be filed through our agency. You bring us the receipt within 60 days, we file it." The towing and rental services being sold by Beck Insurance, which are the subject in this dispute, are offered through All World All Safe Drivers (All World), part of Beck Insurance. Once more specific discussion is entered into concerning the automobile insurance policy applied for, the Beck Insurance employee also returns to the discussion of the All World towing and rental products. Beyond the presentation of the information concerning the purchase of the insurance coverage that has been chosen, Respondent testified that during the time in question the customer would be told "this is your towing and rental reimbursement contract." The details concerning the towing and rental in the contemplated agreement between Beck Insurance and the customer are as set forth in Respondent's Exhibit numbered 28, a form application for towing and automobile rental reimbursement through All World. The form application which constitutes the basis for providing the coverage makes no mention concerning the charge for the various plans offered to the customer for the towing and rental. The terms set forth in the application bundle the reimbursement plan for automobile rental and towing services, as opposed to separate coverage for automobile rental reimbursement and towing reimbursement. Notwithstanding the lack of explanation within the form application for All World rental reimbursement and towing service reimbursement, concerning the costs for the various plans described, Respondent indicated in her testimony that those packages are $35, $60, and $75, in costs. The discussion of the amount charged for towing and rental is included in the price breakdown that also pertains to the costs for the automobile insurance purchased. Approximately 50 percent of the customers solicited purchased All World towing and rental contracts in the time in question. Customarily, the application for automobile insurance is signed by an appointed licensed (2-20) agent at Beck Insurance who has authority to review the application to make certain that it has been correctly executed. When the transaction is complete between a customer and the Beck Insurance employee, there is but one receipt provided to the customer. That receipt sets out the aggregate charges and then breaks out individual charges for the automobile insurance policy, All World, and the motor vehicle report (MVR) fee that some insurance companies charge. As the receipt suggests, the amount tendered at the time that the automobile insurance is purchased and towing and rental reimbursement is purchased is a single amount that would have cost components for the automobile insurance, towing and rental, and a MVR fee. Another form is provided to customers with Beck Insurance. An example is found as Respondent's Exhibit numbered 27. That form outlines automobile insurance coverage by providing explanations about the types of coverage and advice on making certain that the insurance company pays claims made by the customer. There is a reference within this form to a subject other than automobile insurance, namely a reference to towing and rental-car reimbursement wherein is stated: "Reimbursement for towing charge when your covered vehicle is unable to safely proceed under its own power. Reimbursement for rental car when your covered vehicle has been involved in an accident. This coverage is optional. Consult individual plans for different payment amounts and certain restrictions that may be applied to each optional plan." As anticipated by law, persons who work for Beck Insurance, other than the licensed (2-20) agent, may take information supporting the application for automobile insurance sold through Beck Insurance. Count II Danyetta Wilson Danyetta Wilson was interested in purchasing automobile insurance in February 2002. She called Beck Insurance and spoke to Respondent concerning that purchase. After receiving a telephone quote, Ms. Wilson immediately went to Beck Insurance to transact business. The date was February 19, 2002. Before arriving at Beck Insurance, Ms. Wilson had told Respondent what she wanted in the way of automobile insurance coverage, and Respondent indicated that everything necessary to conclude the transaction would be prepared in advance before Ms. Wilson arrived at Beck Insurance. Of course, the application for insurance had not been executed, but pertinent information had been written down by Respondent on scratch paper. Essentially Ms. Wilson told Respondent in the telephone call that she wanted a minimum down-payment and low monthly payments, without discussing the amount of the deductible. When Ms. Wilson arrived at Beck Insurance, she saw Respondent. Both the Respondent and Tracy Laroe assisted Ms. Wilson in the transaction. Ms. Laroe was employed by Beck Insurance. Her application to become a licensed (4-42) limited customer representative was authorized by Petitioner on December 11, 2001. Petitioner issued license no. EO10041 (4-42) to Ms. Laroe on March 8, 2002, as recognized by Beck Insurance on March 29, 2002. As of July 1, 2002, Ms. Laroe's license was inactive based upon cancellation by Beck Insurance as the appointing entity. On February 19, 2002, Respondent was responsible for Ms. Laroe as supervisor at Beck Insurance, in relation to Ms. Wilson's transaction with Beck Insurance in purchasing automobile insurance through Progressive Insurance and automobile rental and towing reimbursement through All World. Most of the activities involved with the transaction occurred between Ms. Wilson and Ms. Laroe when addressing the purchase of automobile insurance on the date in question. During the transaction at Beck Insurance, Ms. Laroe, while assisting Ms. Wilson, did not suggest possible interest in buying the motor club also referred to as a towing and rental contract. Nor was there mention of All World as the company to provide that ancillary product. What was established in discussion was the amount of down-payment and the monthly payments for the automobile insurance. The down-payment was made by cash. Ms. Wilson was told that the down-payment would be $332, which is the amount that she paid. Ms. Wilson completed and was provided copies of certain documents in the transaction. Petitioner's Exhibit numbered 2 is the application for the automobile insurance questionnaire that was completed by providing answers and initials in relation to the underwriting information that was requested in the application form. Ms. Wilson signed the application on February 19, 2002. She did not read the document carefully because she was, as she describes it, "in a rush." The completed application was counter-signed by Respondent as producing agent on February 19, 2002, at 1:41 p.m. On February 19, 2002, Ms. Wilson was provided a receipt indicating a total amount of $332. The receipt reflected that $269 was a down-payment for Progressive Insurance, an amount of $60 as related to All World rental and towing, and $3 for a MVR fee. Ms. Wilson did not examine the receipt at the time it was provided to her. The receipt was filled out by a cashier at Beck Insurance, a person other than Respondent and Ms. Laroe. No explanation was made concerning its several parts. In addition to the questionnaire associated with the application for insurance coverage pertaining to the Progressive Insurance policy, Ms. Wilson executed the Beck Insurance questionnaire which described automobile insurance generally and the All World towing and rental. That questionnaire is Petitioner's Exhibit numbered 5. Petitioner's Exhibit numbered 5 creates the impression that towing and rental is an integral part of the purchase of automobile insurance. It was signed by Ms. Wilson on February 19, 2002, and initialed in its numbered parts. Those parts included the reference to the motor club at number 11 where it stated, "Motor Club - I am aware that the towing and rental care reimbursement is optional. I want to carry this coverage. (This coverage can only be renewed by coming into the office, as it is not written with your auto carrier.)" Again, while the towing and rental car reimbursement was stated as being optional, the quoted material was ambiguous as to its optional nature, and there was no opportunity in the latter portion of the questionnaire to specifically decline this ancillary product. In connection with the rental and towing service through All World, Ms. Wilson signed as applicant for the product. This application which formed the basis for charging Ms. Wilson $60 for rental and towing is Petitioner's Exhibit numbered 4. It is in the manner described earlier as to its form, in which no indication is made concerning the amount charged to purchase Plan 3. Ms. Wilson did not read Petitioner's Exhibit numbered 4, which described the automobile rental and towing reimbursement offered through All World. She signed her name by a red "X" on the application line. The document which described the nature of the reimbursement plan offered through All World was not specifically explained to her. Ms. Wilson was not told that there was an additional charge for the towing and rental. She had no interest in towing and rental, having been provided similar services through her cell-phone plan. In this process, Respondent came over to the location where Ms. Wilson was seated and pointed out certain places in the insurance application to check-off and initial.1 Respondent did not sit at the desk with Ms. Wilson when the transaction took place. During the transaction, Ms. Laroe told Ms. Wilson that the questions she was asking would have to be directed to Respondent, in that Ms. Laroe could not help Ms. Wilson by providing the answers. Ms. Laroe mentioned that her participation was part of the customer service. Ms. Wilson also was involved with a sheet which was informational in nature describing the various types of insurance coverage. Respondent showed Ms. Wilson that form. It is Respondent's Exhibit numbered 1, which was signed by Ms. Wilson on February 19, 2002. It indicates that Ms. Wilson declined uninsured motorists and medical payments coverage. Zeros are placed next to those explanations. Within the document is a reference to towing and rental reimbursement, wherein it is stated: Towing and Rental Car Reimbursement. Reimbursement for towing coverage when your covered vehicles are unable to safely proceed under its own power. Reimbursement for rental car when your covered vehicle has been involved in an accident and is being repaired. This coverage is optional. Consult individual plans for different payment amounts and certain restrictions that may be applied to each optional plan. The towing and rental had a dash placed by that item together with the balance of the items on the information sheet that described insurance coverage. Respondent saw Ms. Wilson place the marks by the side of the forms of coverage and the information about towing and rental reimbursement, which is not part of automobile insurance coverage as such. The overall expectation within Respondent's Exhibit numbered 1 is to generally describe available products. It does not serve as an application. The status of the document is not changed by having Ms. Wilson sign the document. Respondent saw Ms. Wilson initial item 11, concerning the motor club found within Petitioner's Exhibit numbered 5. Ms. Wilson did not ask any questions of Respondent concerning Petitioner's Exhibit numbered 5. Respondent was present when Ms. Wilson signed the application for towing and rental, Petitioner's Exhibit numbered 4. Respondent in relation to that document asked if there were any questions. Ms. Wilson did not indicate that she had questions. In relation to Petitioner's Exhibit numbered 4, Respondent recalls the nature of the explanation that she gave to Ms. Wilson as: "What this is, is this is your towing and rental contract. It gives you three tows per six months, $100.00 reimbursement on every tow, on each tow with a limit of three per six months. The rental benefit is $25.00 a day for five days if you are involved in an automobile accident and you need reimbursement. All claims have to be brought here to the office within 60 days in the form of receipts. We file the claims for you. Now, I need you to sign there." Nothing in that explanation indicates that there was an opportunity to decline to participate. The explanation did not establish the cost for the plan. Respondent indicated hat Ms. Laroe in her participation in the transaction with Ms. Wilson was there to listen and learn. Count III Marc Appling On January 21, 2002, Marc Appling purchased automobile insurance from Beck Insurance. He wanted full coverage for his car. The amount quoted for the insurance as a down-payment was $288. On January 21, 2002, $200 was paid. On January 24, 2002, the additional $88 was paid. Of the $288 paid, $222 was a down- payment for automobile insurance through Superior American Insurance Company (Superior), $60 was for All World automobile towing and rental reimbursement, $3 for a MVR fee, and $3 for some unexplained charge. The receipt provided Mr. Appling when he paid the initial $200 reflects $222 for down-payment to Superior, $60 for All World, and $3 for a MVR fee. That receipt is Exhibit numbered 9 to the Appling deposition, Petitioner's Exhibit numbered 16. On January 21, 2002, Mr. Appling primarily dealt with Lance Moye, an employee of Beck Insurance who gave him a price quotation for the purchase of insurance through Superior. Mr. Moye explained to Mr. Appling the details, to include the amount of payment per month beyond the down-payment. Michelle Mack, an employee for Beck Insurance was sitting next to him. If Mr. Moye experienced problems in carrying out the transaction, he would ask Ms. Mack her opinion. Mr. Moye has never been licensed by the Petitioner in any capacity. During 1991 and 1993, he had applied for a (2-20) general lines property and casualty license. On the date in question, Michelle Mack, known to Petitioner for licensing purposes as Anna Michelle Mack, was licensed as a (4-42) limited customer representative agent. Mr. Appling executed the Beck Insurance questionnaire and acknowledgement form that has been previously described, to include initialing item 11, related to the motor club which says: "I am aware that the towing and rental car reimbursement is optional. I want to carry this coverage. (This coverage can only be renewed by coming into the office as it is not written with your auto carrier.)" This form that was signed and initialed and answered yes or no in various places was Exhibit numbered 8 to the Appling deposition, Petitioner's Exhibit numbered 16. Mr. Moye told Mr. Appling that "you pay," addressing Mr. Appling, "X amount of dollars for rental car coverage and everything like that." However, Mr. Appling was not satisfied with the explanation. The questionnaire Exhibit numbered 8 to the Appling deposition, describing towing and rental car reimbursement as optional, did not create below that statement the specific opportunity to decline that option as would have been the case as items such as uninsured motorist and medical payments. Mr. Appling was left with the impression that the motor club was part of the insurance policy that he purchased and that the $288 down-payment included the motor club. Because Mr. Appling was interested in full coverage, he believed that the automobile insurance itself would cover rental reimbursement. Notwithstanding that the form questionnaire, Exhibit numbered 8 to the Appling deposition referred to towing and rental car reimbursement as an optional item, Mr. Appling did not understand that it was an optional purchase. Had he been persuaded that it was a separate item he would not have purchased the motor club. Exhibit numbered 7 to the Appling deposition, Petitioner's Exhibit numbered 16, is the application for All World towing and rental reimbursement. The automobile insurance application through Superior is found as Exhibit numbered 5 to the Appling deposition, Petitioner's Exhibit numbered 16. It was executed and signed by Mr. Appling on the date in question, then was marked as bound and signed by Respondent on that date. Although Respondent signed the Appling application for automobile insurance with Superior, she had no specific recollection of the event and was not otherwise involved in the transaction. Count IV Laura Brown On January 21, 2002, Laura Brown purchased automobile insurance through Beck Insurance. She dealt with Valerie Lynn Webster and Anna Michelle Mack, employees at Beck Insurance. At various times in 2002 and 2003, Ms. Webster had applied to Petitioner to be licensed as a (2-14) life, including variable annuity agent and a limited customer representative (4-42). No licenses were issued to Ms. Webster. Before arriving at Beck Insurance, Ms. Brown had obtained a preliminary quotation by telephone from the agency related to the purchase of automobile insurance. Ms. Brown was interested in obtaining full coverage for her car. The nature of the discussion once Ms. Brown arrived at the agency was about the purchase of automobile insurance, not about a towing and rental contract, motor club membership or the All World plan. A down-payment was made with installments to follow, associated with the automobile insurance. Ms. Brown thought that the entire amount of the down-payment was for the insurance premium. No explanation was made to the effect that the motor club was separate from the automobile insurance policy. When Ms. Brown left the Beck Insurance agency, she did not realize that she had purchased anything other than automobile insurance. Petitioner's Exhibit numbered 12 is the automobile insurance application through Superior, executed by Ms. Brown on the date in question. It was signed by Respondent, noting that the policy was bound. Respondent had no other direct involvement in the transaction. Petitioner's Exhibit numbered 13 is a receipt dated January 22, 2002, issued to Ms. Brown by Ms. Webster and Ms. Mack, totaling $247 that Ms. Brown paid on that date. It is broken out as $184 for Superior, $60 for All World, and $3 for a MVR fee. Petitioner's Exhibit numbered 14 is an executed application for All World automobile reimbursement and towing service reimbursement executed by Ms. Brown for the period January 22, 2002, through June 22, 2002, under Plan 3 in the form that has been previously described. As reflected in Petitioner's Exhibit numbered 15, Ms. Brown executed the Beck Insurance questionnaire in the form that has previously been described that contains item 11, relating to the motor club stating, "I am aware that the towing and rental car reimbursement is optional. I want to carry this coverage. (This coverage can only be renewed by coming into the office, as it is not written with your auto carrier.)" The questionnaire additionally sets forth that the towing and rental car reimbursement is optional but without the opportunity to decline that option that is specifically described for other optional coverage in the form, such as uninsured motorists and medical payments. In an affidavit containing Ms. Brown's statement prepared on May 23, 2002, Ms. Brown stated, "I knew that I had purchased towing or rental reimbursement policy for my policy 1/22/2002/2003 because I saw the form and I asked questions about it. The lady in picture number 10 (Ms. Mack depicted on Petitioner's Exhibit numbered 17) told me I would get so many tows for free, she also told me it was from Beck Insurance." But in that affidavit Ms. Brown goes on to state, "I did not know that I paid an additional $60 for the towing policy. I thought this was just something I got with the car insurance policy." Again, nothing in Petitioner's Exhibit numbered 14, the application for All World towing and rental, reflects the cost of Plan 3. That was made known in the receipt, Petitioner's Exhibit numbered 13. Count V William Henderson On June 25, 2001, William Henderson purchased automobile insurance from Beck Insurance. He dealt with Daphne Ferrell, a person Respondent claims was a licensed agent at the time. No proof has been presented to contradict Respondent's position, and it is found that Ms. Ferrell was a licensed agent when the transaction took place. On the date in question, Mr. Henderson was interested in purchasing full coverage for his automobile. He executed an application with Atlanta Casualty Company (Atlanta Casualty) to purchase the automobile insurance. That application is Petitioner's Exhibit numbered 6. Respondent's involvement in the purchase was the signing of the application in the place indicated for the agent's statement vouching for the application's correctness. The automobile that was covered by the purchase was inspected by Ms. Laroe as evidenced in Petitioner's Exhibit numbered 7. The inspection was not a function that required a licensed person to perform. Mr. Henderson paid Atlanta Casualty $306 on June 25, 2001, for automobile insurance. That payment is reflected in Petitioner's Exhibit numbered 8, a copy of the check written to Atlanta Casualty. The money that was paid was acknowledged by a receipt from Ms. Ferrell dated June 25, 2001, Petitioner's Exhibit numbered 9. That receipt reflects $306 down-payment for the automobile insurance to Atlanta Casualty and $75 for a rental contract involved with All World, for a total of $381. Whether Mr. Henderson paid the $75 for towing and rental, aside from the $306 check written for the insurance to Atlanta Casualty, is not clear from the record. Mr. Henderson had made application on the form related to All World for auto rental reimbursement and towing service reimbursement, which has been previously described. The specific application by Mr. Henderson is Petitioner's Exhibit numbered 10, relating to Plan 3. Mr. Henderson executed the Beck Insurance questionnaire form that has been previously described setting forth item 11, the motor club, which states: "I am aware that the towing and rental car reimbursement is optional. I want to carry this coverage. (This coverage can only be renewed by coming into the office, as it is not written with your auto carrier.)" While Mr. Webster initialed item 11 on the form, as other customers had done in the circumstances addressed in the Administrative Complaint, the form he executed, as with other customers, did not create an opportunity to opt out of the motor club. While the form at item 11 spoke of the optional nature of the motor club, it was followed by a statement that made it appear that the opportunity to decline the coverage had already been determined, when it said: "I want to carry this coverage." The reference to the optional nature of the towing and rental car reimbursement in the latter portions of the form was not followed by an opportunity to specifically decline the motor club, as allowed in reference to other forms of optional insurance coverage pertaining to such items as uninsured motorist and medical payments, for example. The executed questionnaire is Petitioner's Exhibit numbered 11. In completing the Beck Insurance questionnaire, Petitioner's Exhibit numbered 11, his instructions were to initial where the solid arrow runs from items 1 through 14, at the top of the page, and by the Xs at the bottom of the page. The arrow and the Xs were placed by someone other than Mr. Webster. Only a brief explanation was given to Mr. Webster concerning the questionnaire. Mr. Webster has no recollection of someone specifically reading item 11, related to the motor club. During the transaction at issue, Mr. Webster remembers a discussion of towing and rental. He indicated that he was not interested in rental reimbursement. He did want towing. Mr. Webster, like the other customers who have been discussed, did not carefully read the documents presented to him for his consideration in purchasing the automobile insurance and in relation to the motor club. Mr. Webster has a vague recollection of someone placing an "X" on the applicant's signature line in Petitioner's Exhibit numbered 10 and signing that application for the All World motor club, but he thought that he was only purchasing towing not rental. The application covers both rental and towing.
Recommendation Upon the 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 those provisions within Count II that have been referred to, dismissing the others within that count, dismissing Counts III through V; suspending Respondent's licenses for nine months, placing Respondent on two years' probation and requiring attendance at such continuing education courses as deemed appropriate. DONE AND ENTERED this 3rd day of June, 2004, 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 3rd day of June, 2004.
Findings Of Fact The Respondent, Wayne Charles Redwood, is currently eligible for licensure and licensed in this state as a life agent, life and health agent, general lines agent, and as an independent adjuster for fire and allied lines, including marine, casualty, and motor vehicle physical damage and mechanical breakdown insurance. At no time pertinent to the allegations of the Administrative Complaint in this case was the Respondent licensed as a general lines agent for American Risk Assurance Company (American Risk). At all times pertinent to the allegations in the Administrative Complaint in this case, the Respondent was an officer and director of Redwood Becker and Associates, an incorporated general lines insurance agency located and doing business in Tampa, Florida. On or about March 20, 1989, the Respondent sold an automobile insurance policy and a homeowner insurance policy to Jerry Burton. The Respondent quoted prices and accepted and cashed checks for the policy premiums. The premium for the auto insurance was $601.50. The premium quote for the auto insurance came from a Clarendon National policy the Respondent thought he could obtain through Mobile Home Division, a broker for the product with whom the Respondent did business as an independent insurance agent. A few days later, the Respondent received word from Mobile Home Division that Burton's application had been rejected. The Respondent's other potential sources of auto insurance for Burton would cost approximately three times the Respondent's quote to Burton. The Respondent wanted to increase his chances of keeping Burton as a customer for various insurance needs, including costly workmen's compensation insurance. Rather than tell Burton that he had been rejected, the Respondent consulted an individual named Herman Lambert. The Respondent knew Lambert from prior business dealings. Lambert first called on the Respondent near the end of 1988 to discuss insurance. Lambert seemed knowledgable on the subject and gave the Respondent the impression that he was an insurance broker, like Mobile Home Division. The Respondent never asked Lambert for his credentials. He does not ordinarily ask insurance brokers for their credentials. Department of Insurance records indicate that Lambert is not now, and was not at the time of the Respondent's transactions with Burton, licensed with the Department as an insurance agent. During the time the Respondent knew Lambert, Lambert occasionally was able to give the Respondent leads to obtain coverage for the Respondent's hard- to-place customers. On those occasions, coverage was obtained without any problems. On or about March 27, 1989, Lambert told the Respondent that he (Lambert) thought he could obtain coverage for Burton for the Respondent. Lambert later confirmed to the Respondent that he would be able to get coverage for Burton. The Respondent was delighted and wrote Lambert a check for $582.50, which represented the anticipated premium, net the Respondent's commission. Neither Burton nor the Respondent received any indication that Burton had auto coverage--no policy, no policy declaration, no binder, and no identification card. (Meanwhile, the Respondent and Burton already had received confirmation that the homeowner policy had been issued.) At first, the length of time that had passed was not outside the normal range, and the Respondent was not overly concerned. He tried to reassure Burton that there was no problem and that confirmation of coverage would arrive in due course. In May, 1989, it came time for Burton to renew his auto registration on the vehicles supposedly covered by the auto insurance. Burton advised the Respondent, through his girl friend, Janet, that he needed an insurance identification card to get his vehicle registrations renewed. It was not proved that, by this time, the Respondent knew that no insurance had issued. The Respondent told Janet that he could not give her an identification card but that he could mail her a computer printout with some information on Burton's policy. The Respondent entered information on his office computer system and produced a document labeled "Policy Declarations." The document stated that American Risk was the name of Burton's auto insurance carrier and that Burton's policy number was FPL20275. It listed a premium of $647. The place on the document for the signature of the "authorized representative" was left blank. The Department did not prove that the Respondent did not telephone Lambert to get the name of the insurance carrier and the policy number, or that Lambert did not give the Respondent the information the Respondent put on the document, as the Respondent testified. The Respondent mailed the completed printout to Janet for use in getting Burton's vehicle registrations renewed. The Respondent explained that the actual policy, or policy declarations, or binder, would be sent by the insurance carrier but that, hopefully, the document he was providing would be enough to get the registrations renewed. Apparently, it was, for the Respondent was not contacted again concerning the vehicle registration renewals. The Department did not prove that the Respondent did not make clear to Janet that the document was not the actual policy or the actual policy declarations (notwithstanding the label on the document). However, the Respondent knew that his conduct would enable the customer to misrepresent to the auto vehicle registration agency that the document was an actual policy declaration page. The Department did not prove whether the customer intended to, or did, use the document to defraud or mislead the auto vehicle registration agency. Time continued to pass, and nothing was received from an insurance carrier indicating that Burton had auto coverage--no policy, no policy declaration, no binder, and no identification card. By now even more concerned, Janet tried to contact the Respondent to discuss the matter of the auto insurance, but the Respondent either was out-of-town or was unable to speak to her, which increased Janet's anxieties. On or about July 15, 1989, Burton contacted the Respondent about getting workmen's compensation insurance and about the auto insurance. Burton still had received nothing from an insurance carrier and nothing else from the Respondent indicating that Burton had coverage on his vehicles. Burton asked whether it was possible to get insurance from another insurance carrier to expedite the process. The Respondent explained that he could but that it would cost Burton about three times as much. It seemed to the Respondent that Burton was about ready to pay the extra premium cost to get assurance that he had coverage, but Burton made no final decision either on the auto insurance or on the expensive workmen's compensation insurance. On July 17, 1989, both Burton and Janet visited the Respondent in his office to discuss the auto and workmen's compensation insurance. The Respondent had no more answers or suggestions. It was becoming apparent to the Respondent that Burton and Janet were losing faith in the Respondent and that Burton was hesitant to write the Respondent a check for the workmen's compensation insurance while the status of the auto insurance for which Burton had paid the Respondent remained in question. The next morning, July 18, 1989, Burton and Janet again appeared at the Respondent's office, this time without an appointment, to discuss the auto insurance. They reported to the Respondent that they had been to the Insurance Commissioner's office on the afternoon of July 17 for advice on the problem. By this time, the Respondent felt it was time to ask if Burton wanted a refund of his premium. Burton indicated that he did, and the Respondent refunded him the entire premium for both the auto insurance and the homeowner insurance. (The Respondent took a loss on the homeowner refund because the policy had been in effect, and there were earned premiums that the Respondent did not get back from the insurer.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order: (1) finding the Respondent, Wayne Charles Redwood, guilty of preparing a false declaration page in violation of Sections 626.621(2) and (6), and 626.9541(1)(e), Fla. Stat. (1989); finding him not guilty of the other charges in the Administrative Complaint; and (3) imposing on the Respondent an administrative penalty in the amount of $500. RECOMMENDED this 3rd day of May, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 May, 1991.
The Issue The issues are whether the sale of ancillary products to two purchasers of automobile insurance involved sliding, as that term is defined in Subsection 626.9541(1)(z), Florida Statutes (2005)1; whether the alleged acts violated Subsections 626.611(7) and (9), 626.621(6), and 626.9521(1), which respectively prohibit a lack of fitness or trustworthiness to engage in the business of insurance, fraudulent or dishonest practices, and unfair trade practices; and, if so, what penalty should be imposed against Respondent's insurance license.
Findings Of Fact Petitioner is the state agency responsible for regulating insurance and insurance-related activities in Florida pursuant to Chapters 626 and 627. Respondent is licensed as a life, including variable annuity, general lines insurance agent pursuant to license number A085250. From October 22, 2003, through September 2, 2005, Respondent was employed as an insurance agent by Direct General Insurance Agency, Inc. (Direct). Direct is a Tennessee corporation doing business in Florida as Cash Register Insurance (Cash Register). Cash Register employed Respondent in an office located at 6325 North Orange Blossom Trail, Orlando, Florida, which conducts business as Friendly Auto Insurance Company (Friendly). Friendly-Cash Register paid Respondent a salary and commissions. Friendly-Cash Register paid commissions on the sale of ancillary products such as travel protection, accident medical protection, and term life insurance. Commissions comprised 18 percent of the compensation paid to Respondent. The two transactions at issue in this proceeding occurred on July 11 and August 29, 2005. In each transaction, Respondent sold automobile insurance and three ancillary products to Ms. Heather Dickinson and Ms. Carmen Phillips, respectively. Ms. Dickinson subsequently married and testified at the hearing as Ms. Heather Mason. When Ms. Mason and Ms. Phillips entered the Friendly- Cash Register office, each consumer requested the minimum automobile insurance coverage needed to be "legal and on the road." Neither customer left the office understanding she had purchased ancillary products. Ms. Mason purchased automobile insurance for a 1995 Jeep Cherokee 4x4 at an annual premium of $1,175.00. Friendly-Cash Register charged Ms. Mason a total sales price (total price) of $1,609.24. Ms. Mason agreed to pay $194.00 as a down payment and the balance in 12 installments of $117.94 at an annual percentage rate of 25.27 percent. Ms. Mason purchased three ancillary products at a total cost of $278.00. Ms. Mason paid $60.00 for travel protection, $110.00 for accident medical protection, and $98.00 for term life insurance. A finance charge of $151.69 and a charge of $4.55 for Florida documentary stamp taxes comprised other charges that are not at issue in this proceeding. Ms. Phillips purchased automobile insurance for a 1992 Chevrolet Blazer 4x4 at an annual premium of $779.00. Friendly-Cash Register charged Ms. Phillips a total price of $1,271.64. Ms. Phillips agreed to pay $129.00 as a down payment and the balance in 10 installments of $114.26 at an annual percentage rate of 25.06 percent. Ms. Phillips purchased three ancillary products at a total cost of $368.00. Ms. Phillips paid $60.00 for travel protection, $200.00 for accident medical protection, and $108.00 for term life insurance. A finance charge of $120.79 and a documentary stamp charge of $3.85 comprised other charges that are not at issue. Both Ms. Mason and Ms. Phillips signed Friendly-Cash Register forms which disclose that the ancillary products they purchased are optional and entail additional costs. Each customer signed a package of documents numbering approximately 19 pages.2 Page 1 of each package discloses the annual price for automobile insurance. The optional ancillary products and separate charges are disclosed in several additional pages. The package of documents that Ms. Mason signed discloses the annual cost for travel protection on pages 000006 and 000014 through 000016 (hereinafter pages 6, 14, 15, etc.). Pages 8, 9, and 14 through 16 disclose the cost of the accident medical protection. Pages 10 and 12 through 16 each disclose the cost for term life insurance. Pages 7, 9, 14, and 15 expressly provide that the ancillary products are optional. Page 16, the Premium Finance Agreement, separates the charges for mandatory automobile insurance from the optional ancillary products and the other charges. Ms. Mason signed or initialed pages 3 through 11, pages 14 through 17, and page 19. The package that Ms. Phillips signed includes disclosures similar to those in the package signed by Ms. Mason. Ms. Phillips signed or initialed relevant pages in the same manner as Ms. Mason. Ms. Mason and Ms. Phillips had adequate time to review the documents they signed or initialed, but neither customer read the documents. Each consumer is a literate adult with no disability or infirmity that would impede her capacity to understand the transaction. The factual disputes are whether Respondent orally explained the ancillary products that the two customers purchased, and, if so, whether the oral explanation was adequate. For reasons discussed in the Conclusions of Law, Respondent is not required to prove she did explain the ancillary products and that the explanation was adequate. Rather, Petitioner must prove Respondent did not explain the ancillary products or that the explanation was inadequate. Respondent does not recall the specific transactions at issue in this proceeding because she sold as many as 10 insurance policies each day at Friendly-Cash Register for almost two years. However, Respondent does recall that she followed the identical procedure with each customer and that the procedure she followed was carefully scripted by Friendly-Cash Register as a condition of employment. Respondent orally explained each disputed transaction in this proceeding in a manner that was adequate for each consumer to understand the transaction. Respondent orally explained that the ancillary products were optional. Respondent circled the optional items in the documents and explained that each ancillary product entailed an additional cost. The sixth document that Respondent reviewed with each customer is the "Explanation of Policies, Coverages, and Cost Breakdown." That page appears as page 14 in the exhibits, but page 14 is not organized in the exhibits in the same order that Respondent presented it to customers. Respondent orally explained pages pertaining to specific ancillary products after Respondent explained the page entitled "Explanation of Policies, Coverages, and Cost Breakdown." The procedure scripted by Friendly-Cash Register required Respondent to first interview Ms. Mason and Ms. Phillips to gather information needed for input into a computer which printed the 19-page forms utilized by Friendly- Cash Register. The interview included questions regarding life insurance beneficiaries and questions pertaining to the medical condition of each customer. After interviewing Ms. Mason and Ms. Phillips, Respondent entered the information into a computer and printed the 19-page packages. Respondent placed each package in front of the respective customer and discussed each page. Respondent circled the word "optional" when it appeared on a page, obtained the signature or initials of each customer, turned the page over, and proceeded to the next page. The trier of fact finds the testimony of Respondent to be credible and persuasive. As Respondent explained: Q. Did you tell the customers that this quote included those ancillary products? A. Yes. I informed . . . them that they had been quoted with the optional policies. * * * Q. How is page 14 labeled at the top? A. It says "Explanation of Policies, Coverages, and Cost Breakdown." . . . I would circle the items that are circled on here, and then I would present it to the insured. And I would say, you're purchasing the mandatory personal injury protection, bodily injury, [or] there's no property damage, there's no bodily injury. You also have the optional policies for the travel protection plan, accidental medical plan, life insurance, these are the costs, sign here. Q. [A]re you pointing at your circles? A. Yes. I point to each circle and I kind of run my finger down the cost to draw attention to it. Q. You point to the cost? A. Yes. * * * Q. Okay. What do you go over next? A. The next page is the second page of the travel protection plan. Q. This is page 7 of Exhibit 2? A. Correct. Q. How is that labeled at the top? A. "Optional Travel Protection Plan." It says, "American Bankers Insurance Company." I'd point out that there's bail bond coverage, collision of loss of use [sic], personal effects loss from auto rented. Q. Do you make those circles that we see on that page? . . . . A. Yes. I circle them when they're sitting there and then I hand it--hand the paper to them, and I would say, "This is optional coverage, please sign here." * * * Q. Okay. After she signed that, what did you go over with her next? A. Next one would be the accidental medical protection plan. Q. Page 8 of Exhibit 2? A. Yes. Q. Okay. . . . [A]fter she signed that page, what did you do? A. Page 9. Q. Page 9 of Exhibit 2? A. Your cost is $110. The annual benefit is $45,625. . . . Please sign here. Q. Did you make those circles on a piece of paper? A. Yes. Before I handed it to her, I circled the items that are circled on it and drew the line. * * * Q. [A]fter she signed this page, what would you do next? A. Okay. The next page is page 10, which is the life insurance policy. Q. This is page 10 of Exhibit 2? A. Yes. Q. Okay. How would you explain this page to a customer? A. This 10,000 [sic] term policy. The premium is $108. It's not replacing any other previous life insurance policy. Q. Did you make those circles? A. Yes, I did. . . . * * * Q. This is page 13 of Exhibit 2? A. Yes. It's a statement of policy cost and benefit information that I would just run my finger down and just say, "These are your benefits and the cost, please sign here." Transcript (TR) at 251-270. Petitioner proposed in its PRO a finding that Respondent did not orally explain the ancillary products to the two consumers. However, Ms. Mason and Ms. Phillips did not remember what Respondent said to them. Testimony that a witness does not remember what Respondent said is less than clear and convincing evidence that Respondent did not explain the ancillary products adequately. The testimony of Ms. Mason during cross examination is illustrative. Q. Would you say that what you were really paying attention to when you conducted this transaction was how much it was going to cost you? A. Yeah. Yes. Q. Cause you . . . you talked [on direct] about your recollection about these things. And it was interesting that some things you were able to say you don't recall, but [counsel for Petitioner] was able to get you to commit to certain things that you absolutely said would not have happened. Such as, you know that if . . . the word "optional" had been used that you would not have accepted the product, correct? A. If it would have cost more, then I would not have accepted it. Q. Okay. But you don't specifically recall what was discussed in the course of your meeting with Ms. Fitzgerald, correct? A. No. Q. And you acknowledged that at least when confronted with some of the paperwork, things like a beneficiary on the $10,000 benefit for the life insurance policy, that was certainly discussed with you, right? A. I--yes, I guess. I don't--like I said, I feel so stupid because I don't--I know I said my brother's name and he's down for a beneficiary, but I don't remember why I would have--I don't understand why I did that. . . . * * * Q. You thought that the questions that were being asked to you about the life insurance policy--you thought that they were actually part of car insurance? A. I don't remember being asked questions about life insurance. Q. Do you remember being given a series of questions asking you about your health and about treatment-- A. Yes. * * * Q. So when . . . I ask you the question about whether or not you were told what your lump sum was going to be and you say, "I don't remember," that doesn't mean you weren't told? A. Correct. Q. It just means you don't remember? A. Correct. * * * Q. Turn to page 14. . . . Do you recall what explanation was given about this particular page? A. No. * * * Q. If you turn to page 15, please. . . . Fair to say that you don't recall what was said about this page? A. Yes. TR at 156-170. The oral explanation that Respondent provided to Ms. Mason and Ms. Phillips did not include a statement that each customer could have saved 17.27 and 28.94 percent of the total price, respectively, by declining the ancillary products. Nor did the oral explanation include a suggestion that either customer use the money to buy automobile insurance with a smaller deductible or more complete insurance.3 The omissions discussed in the preceding paragraph are not alleged in the Administrative Complaint as grounds for the statutory violations charged in the Complaint (the un-alleged omissions). Rather, the Complaint limits the alleged grounds to a failure to "inform" Ms. Mason and Ms. Phillips that the ancillary products were: . . . separate from and not a part of the automobile insurance she had requested, was not required by law or a lien holder, was optional, or that there was an additional charge for this product. . . . Administrative Complaint, paragraphs 7, 11, 15, 32, 36, 41, and 45. The un-alleged omissions did not involve the exercise of discretion by Respondent and were not willful. While it is clear that Respondent was the office manager, it is less than clear and convincing that Respondent was in charge of scripting the oral explanation for Friendly-Cash Register.4 Rather, Friendly-Cash Register required the omissions as a condition of Respondent's employment. As Respondent explained in her testimony: Q. . . . I don't see where [this script] asks the consumer if they actually want the optional policies. . . . So how would you know to quote the ancillary products if they had not asked for it yet? A. We were required to offer them to everybody. Q. And the method that Direct General instructed you to use was to just . . . include them in the quote; is that correct? A. State that they were optional, yes, and include them in the quote. * * * A. I would have preferred not to quote with them on the policy-- Q. Why? A. . . . I just preferred it that way, you know. . . . I didn't like it. Q. Do you feel like the way Direct General had you quote these consumers . . . may have led consumers possibly buying policies without full informed consent? A. No. TR at 280 and 295. On September 2, 2005, Respondent voluntarily left the employment of Friendly-Cash Register. Respondent is now employed by Car Insurance.com. Petitioner argues in paragraph 47 of its PRO that the Friendly-Cash Register forms are "vague or ambiguous and make it difficult to decipher (document-deficiency)." The Administrative Complaint does not allege document-deficiency as a ground for the charged violations. The alleged grounds are limited, in paragraphs 7, 11, 15, 32, 36, 41, and 45, to the "failure to inform" the consumers that they were purchasing ancillary products. Moreover, Petitioner acknowledges in paragraph 43 of its PRO that the "optional nature of the ancillary products is evident" from a review of the documents. If it were found that an allegation of document- deficiency is implied in the Administrative Complaint, the trier of fact finds that the ancillary products purchased by Ms. Mason and Ms. Phillips were not mis-labeled or illusory. They provided benefits to each purchaser. Travel protection primarily provided daily rental reimbursement of $25.00 up to 10 days during repairs for collision damage and up to five days during travel interruption. The accident medical protection plan provided medical expense reimbursement up to $1,000.00 and daily hospital coverage of $125.00 up to 365 days. The term life insurance provided a death benefit of $10,000.00. Even if the relevant forms were found to be deficient, any deficiency is rendered moot because each consumer testified that she did not read or rely on the content of the Friendly-Cash Register forms.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the allegations in the Administrative Complaint. DONE AND ENTERED this 18th day of January, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 18th day of January, 2008.
Findings Of Fact At all times relevant hereto, Best Value Used Cars was licensed as am independent motor vehicle dealer holding License No. 6V1-5457. Best Value Used Cars is owned by David Stroud. Wendy Stroud, daughter of David Stroud, was employed by Bell Chevrolet as a title clerk before and during August 1986. Employees of Bell Chevrolet are allowed to purchase two cars per year from Bell without paying sales commissions. David Stroud had a 1984 Nissan he intended to trade in on a car for his daughter, He took this Nissan to Bell for an appraisal and to see if he could work out a deal. The title to the Nissan was in the name of Best Value Used Cars and showed the Nissan as a rebuilt car. Rebuilt cars have a lower sale value than do cars that have not been wrecked. Initially, Stroud attempted to trade the Nissan on a Corvette. John Barton, who was in charge of new car sales, drove the Nissan around the block while Stroud drove the Corvette. Since the Nissan lien was not paid off, no deal was consummated. Each of the three employees of Bell who testified was qualified to appraise the Nissan and a fair appraisal value for a 1984 Nissan 4-door sedan was $4,000 in August 1986. None of these witnesses recall appraising the Nissan. It is not a normal practice to take in a rebuilt vehicle for wholesale. Gary Sears, Bell general manager, testified his only involvement was to fill out the sales document (Exhibit 1) using the figures supplied him by others. John Lindberg, Bell truck manager, sold Stroud the 1982 Ford pickup he purchased (Exhibit 1) by trading in the Nissan and paying the $2,000 difference in the value of each vehicle. All of these witnesses denied seeing the title to the Nissan until after the deal was closed and denied that Stroud had ever told them the Nissan had a rebuilt title. Normally the person doing the appraisal would at least look at the title before reducing the appraisal to writing. When a transaction closes, the general manager at Bell normally clips all of the papers together and presents them to the title clerk who processes the titles involved. The same day Stroud left the Nissan in exchange for the Ford, the Nissan was moved for wholesale. John Lindberg learned from another dealer that the Nissan had a rebuilt title and he testified he first saw the vehicle title the following week. He told Wendy Stroud the deal was held up, but gave her no specific instructions regarding the title. Wendy Stroud received the Nissan title and when the Ford title reached her desk, she processed the titles routinely. Shortly after the Nissan's title was changed to Bell Chevrolet, Wendy Stroud was fired from her job as title clerk at Bell Chevrolet. David Stroud signed Exhibit 1 and four other documents when he traded the Nissan in on the Ford, but the only document he received was Exhibit 1, which he offered into evidence. This exhibit does not bear the seller's signature and is entitled Buyer's Worksheet. These other documents included notification that the vehicle had been wrecked, that the odometer reading was accurate, and something about a $100 payment for maintenance insurance for 30 days. None of these documents was offered into evidence. No one challenged Stroud's testimony that he signed four other documents, but Petitioner offered none of these documents into evidence to corroborate or rebut any testimony. When Stroud returned from the bank with the check for the $2,000 balance, the Nissan was already gone from Bell's lot. Bell's employees all denied ever seeing the Nissan title before the transaction was completed, or that Stroud told them the Nissan had been rebuilt. Nor did they receive written notice from Stroud that the Nissan had been rebuilt. Stroud testified that when he first took the Nissan for an appraisal and made the attempt to purchase the Corvette, he gave the keys and title to Barton, who, after driving the Nissan, gave the keys and title to Sears. Both Strouds testified that David Stroud received back the title and keys from Sears.
Findings Of Fact For Petitioner: Robert C. Byerts, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 For Respondent: Michael S. Moreland, Esquire Post Office Box 1992 Fort Myers, Florida 33902 STATEMENT OF THE ISSUES Whether the Respondent committed the alleged multiple violations of Chapter 626, Florida Statutes, as set forth in the Administrative Complaint.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Virginia Louise Williamson be found guilty of nine violations of Section 626.611(9), Florida Statutes, and nine violations of Section 626.21, Florida Statutes, as alleged in the Administrative Complaint. That Respondent's licenses as General Lines Insurance Agent, Life Insurance Agent, and Health Insurance Agent and eligibility for licensure be suspended for a period of one year. DONE and ENTERED this 24th day of July, 1989, in Tallahassee, Leon County, Florida. VERONICA D. DONNELLY 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 24th day of July, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4553 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #5. Accepted. Accepted. See HO #17. Accepted. See HO #3 and #18. Accepted. See HO #12 and #13. Accepted. See HO #15. Accepted. See HO #14. Accepted. See HO #8. Accepted. See HO #4. Accepted. See HO #7 Accepted. See HO #6. Accepted. See HO #9. Accepted. See HO #10. Rejected. Improper Summary. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #3. Rejected. See HO #3. (Respondent's answer and prehearing statement.) Rejected. Conclusion of Law. Accepted. See HO #4. Accepted. Accepted. See HO #4. 8.-10. Accepted. Rejected. See HO #5. Rejected. Conclusion of Law. Contrary to existing law. See White v. Allstate Insurance Company, 530 So.2d 967 (Fla. 1st DCA 1988). 13.-16. Accepted. 17.-28. Accepted. See HO #6. 29.-34. Accepted. See HO #7. 35.-36. Rejected. Contrary to fact. See HO #7. 37. - 43. Accepted. See HO #8. 44. Rejected. See HO #8. 45-50. Accepted. See HO #9. 51.-52. Accepted. 53.-64. Accepted. See HO #10 and #11. 65.-76. Accepted. See HO #12 and #13. 77.-83. Accepted. See HO #14. 84.-91. Accepted. See HO #15. COPIES FURNISHED: Robert C. Byerts, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Michael S. Moreland, Esquire Post Office Box 1992 Fort Myers, Florida 33992 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance The Capitol Tallahassee, Florida 32399-0300
The Issue Whether or not on or about February 17, 1969, the Respondent, Everett A. Harper, caused to be issued to Florida Pallet Corporation, by the Employers' Fire Insurance Company, a policy covering the business vehicles of Florida Pallet Corporation for which Harper received premiums from the insured on a monthly basis. Further, whether or not Harper failed to deliver or transmit the premiums to the insurer, resulting in the policy being cancelled flat for non- payment of premiums. Whether or not Harper failed to inform the insured of the cancellation of the policy, but nevertheless continued to receive the insured's premium payments monthly, without causing to be issued insurance coverage for Florida Pallet Corporation with another insurer. Finally, whether or not in July, 1969, a truck of the insured, Florida Pallet Corporation, was involved in an accident in which a claim was filed and in which Harper failed to advise the insured of the policy cancellation that had occurred a few months prior to the accident, and until February, 1970, continued receiving and accepting premiums. These acts are alleged to have been accepting premiums. Section 475.25(1)(a), Florida Statutes, as being acts which show the Respondent to be guilty of fraud, misrepresentation, concealment, dishonest dealing, trick, scheme or device and/or breach of trust in the business transaction. The acts also have allegedly constituted a violation of Section 475.25(1)(c), Florida Statutes, as being acts which show the Respondent to be guilty of failing to account for or deliver moneys which have come into his hands, which were not his, and which he was not entitled to retain, under the circumstances; thereby constituting conversion of those moneys. The Petitioner has an additional contention under Section 475.25(3), Florida Statutes, to the effect that the acts as alleged constitute a course of conduct in violation of the purpose and intent of the section immediately referenced.
Findings Of Fact The Respondent, Everett A. Harper, is a Registered Real Estate Broker, who presently holds a non-active certificate of registration, giving an address of P. O. Box 1238, Sanford, Florida 32771. This non-active certificate of registration is held with the Petitioner, Florida Real Estate Commission. From October 1, 1968, until April 29, 1970, which includes the time of the alleged acts of misconduct, the Respondent was the holds of a broker's certificate as a individual broker under the trade name "Harper-Gentry Real Estate," with office at 2465 South Park Avenue, Sanford, Florida 32771. In that same period the Respondent, Everett A. Harper, was the holder of a General Lines Insurance Agent's license held with the Treasurer's Office of the State of Florida. While operating the insurance business, in February, 1969, the Respondent entered into an agreement with the Florida Pallet Corporation to obtain insurance coverage for the motor vehicles which were owned by the corporation. The arrangement between Harper and the corporation was to have the corporation pay an initial installment to activate that policy and to make monthly premiums in the future. The initial payment was made and Harper contacted the Employers' Commercial Union Companies, specifically the Employers' Fire Insurance Company, for purposes of having those companies insure that Florida Pallet Corporation for its automobile liability, in addition to Workmen's Compensation and general liability. (These latter two categories were apparently at the request of the Florida Pallet Corporation, although no testimony by their former president was presented from the representative of the insurance company, who testified in the course of the hearing.) The facts further revealed that once the Orlando branch of the Employers' Commercial Union Companies had received the request for insurance, they declined coverage on the Workmen's Compensation and general liability portions of the request, but issued an automobile liability policy, subject to background checks on the prospective drivers' records and engineering reports. The automobile policy was issued to the Respondent's insurance agency. Within ten days to two weeks of the date of the issuance, the insurance company asked the Harper agency to return the automobile policy for cancellation because the background check had led the insurance company to decline the coverage. This request was honored by Everett A. Harper when he returned the policy with the indication "cancelled flat." This form of cancellation was allowed because no claim had been filed against the policy prior to the date of the cancellation. The effect of the cancellation of the automobile policy was to cancel the policy from the date of inception. It also meant that the insurance company, to wit, the Employers' Commercial Union Companies, was not entitled to collect any moneys as premium payments, nor was Everett A. Harper entitled to keep those premium payments which he had received up to that moment or future premium payments which he might have received under the policy which has been alluded to. Harper could have placed a request for coverage with other companies if he had so desired. In fact, he did not make such a placement and kept the initial payment of premiums and continued to receive premiums over a period of the year 1969. The Florida Pallet Corporation was not notified of the cancellation of the policy or of Harper's failure to place their request for policy with another company, or the fact that Harper continued to receive the premium payments, which amounted to $1,270.00 a year for the automobile coverage. In addition, Harper neglected to advise the Florida Pallet Corporation that they were not covered by any insurance plan for their automobile liability needs. Some six or eight months after the policy had been cancelled, one of the vehicles belonging to the Florida Pallet Corporation was in an accident, which necessitated protection under an insurance policy. Harper still failed to indicate the cancellation of the policy, the lack of placement of the coverage with a new company, and the fact that no coverage existed, when requested to protect the interests of the Florida Pallet Corporation. This request was made by the president of that corporation, Leo Voskan. Eventually, Voskan made an inquiry of the Employers' Commercial Union Companies in February, 1970, and was told that there was no coverage, in view of the fact that the policy had been cancelled at a time prior to any authorized claim being filed. The claim arising from the automobile accident in 1969, involving the vehicle of the Florida Pallet Corporation, was paid by Harper, at a date beyond the time of the inquiry mentioned of February, 1970. Under the facts as developed, Harper should have returned the premium payments to the Florida Pallet Corporation, indicating the fact of the lack of coverage by the Employers' Commercial Union Companies, or in the alternative, placed coverage with another insurance company. The failure to return those premium payments, or arrange for a policy with another company, and the failure to advise the Florida Pallet Corporation of their lack of coverage, show the Respondent, Everett A. Harper, to be guilty of fraud, misrepresentation, concealment, dishonest dealing, trick, scheme or device and/or breach of trust in a business transaction in violation of the provisions of Section 475.25(1)(a), Florida Statutes. It also shows that the Respondent, Everett A. Harper, is guilty of failing to account for or deliver moneys which have come into his hands, which were not his and which he was not entitled to retain, under the circumstances, of which he converted, in violation of Section 475.25(1)(c), Florida Statutes. Finally, these facts establish that the Respondent, Everett A. Harper, is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not be safely entrusted to him; in violation of Section 475.25(3), Florida Statutes.
Recommendation Based upon a review of the facts as offered in this cause, it is, RECOMMENDED: That the non-active real estate broker's registration of the Respondent, Everett A. Harper, be REVOKED. DONE and ENTERED this 18th day of August, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Everett A. Harper Post Office Box 1238 Sanford, Florida 32771
