The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated August 30, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency that is authorized to take administrative action against persons holding licenses as insurance agents in the State of Florida and to impose discipline on the licensees when warranted. See §§ 626.016 and 626.611, Fla. Stat. (2007).1 At the times material to this proceeding, Mr. Estess was licensed by the State of Florida as a life insurance agent, a life and health insurance agent, a general lines insurance agent, and a health insurance agent. Mr. Estess held license number A079117. At the times material to this proceeding, Mr. Estess was the director of Estess Insurance, located in Hollywood, Florida. Mr. Estess has been licensed as an insurance agent in Florida for 34 years and has never had any disciplinary action taken against him. In or about August 1997, Mr. Estess was approached by Ronald Samuels, a client of his insurance business and a former co-worker. Mr. Samuels offered Mr. Estess $5,000.00 to kill Mr. Samuels' former wife. Mr. Estess accepted the money and agreed to kill Mr. Samuels' former wife. Even though he took the money, Mr. Estess did not intend to commit the murder. He took the money because he was heavily involved in drugs and alcohol and needed money to support his drug habit. After taking the money from Mr. Samuels, Mr. Estess introduced Mr. Samuels to a person who was known by the street name "T" as a person who could help him accomplish the murder of his former wife. The first meeting between Mr. Samuels and "T" took place at Mr. Estess's condominium, and Mr. Samuels told Mr. Estess that he paid "T" $5,000.00 to murder Mr. Samuels' former wife. Mr. Estess drove "T" to Boca Raton, Florida, and pointed out the location where Mr. Samuels's former wife worked; this was the location at which the murder was to take place. "T" asked Mr. Estess about the kind of car Mr. Samuels's former wife drove, and Mr. Estess gave "T" this information. Mr. Estess also introduced Mr. Samuels to Eddie Stafford, known by the street name of "Slim," as a person who could accomplish the murder of Mr. Samuels's former wife. Eddie Stafford and a man named Ryan Runyon attempted to murder Mr. Samuels's former wife by shooting her on or about October 14, 1997. She was wounded, but the wound was not fatal. Rather, it rendered her a quadriplegic. Mr. Estess's automobile was used in the attempted murder. Mr. Estess had taken it to be detailed on the day of the attempted murder, and Mr. Samuels apparently took the car and gave it to Eddie Stafford. Mr. Estess was angry because Eddie Stafford did not change the license plates on his car when he drove it to the location where they attempted to murder Mr. Samuels's former wife. On the night of the day the attempted murder took place, Mr. Samuels went to Mr. Estess's condominium. Mr. Estess told him to stay away. Mr. Samuels called Mr. Estess's office the day after the attempted murder and told Mr. Estess that he was very angry because his former wife had not been killed. Between the time Mr. Estess took the $5,000.00 from Mr. Samuels and the time the attempt to murder Mr. Samuels's former wife occurred, Mr. Samuels telephoned Mr. Estess "all the time" to find out when the murder would take place. Mr. Estess left town two days after the attempted murder and entered a drug rehabilitation program. He was instrumental in effecting the Mr. Samuels's arrest in Mexico, and he was granted immunity from prosecution and ultimately testified against Mr. Samuels in Palm Beach County, Florida. Even though Mr. Estess may have taken the $5,000.00 from Mr. Samuels with no intention of committing the murder of Mr. Samuels's former wife, he introduced Mr. Samuels to persons he thought could accomplish the murder, and he was involved in planning the murder with "T". Eddie Stafford, one of the men Mr. Estess introduced to Mr. Samuels, was an accomplice to the attempted murder and was present when Mr. Samuels' former wife was shot. Mr. Estess also must have given Mr. Samuels reason to believe he was involved in planning the murder because Mr. Samuels regularly contacted Mr. Estess to find out when the murder was to take place. Regardless of his intention not to murder Mr. Samuels's former wife, Mr. Estess did participate in the attempted murder because he was instrumental in planning and making preparations for the murder. Mr. Estess's participation in such a vile act at the request of a client of his insurance business renders Mr. Estess unfit to hold a license as an insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Hugh Maxwell Estess has demonstrated a lack of unfitness and trustworthiness to engage in the business of insurance and revoking Mr. Estess's insurance agent's license pursuant to Section 626,611(7), Florida Statutes. DONE AND ENTERED this 1st day of May, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2008.
The Issue Whether Respondent, a licensed insurance agent, violated the Florida Insurance Code as alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the time of the formal hearing and at all other times pertinent to this proceeding, the Respondent was licensed in the State of Florida by Petitioner as a life and health insurance agent and a general lines insurance agent. Shirley Maroon, Alexis Ehrenhaft, and Sonya Rouviere are sisters who, at the times pertinent hereto, owned a commercial building located at 1501 Southwest 8th Street, Miami (the subject property). Prior to August 1991, the subject property was insured for casualty loss through Granada Insurance Company. The Granada insurance policy had been obtained through Hartnett, Inc., a general lines insurance agency. Fred B. Hartnett was, at the times pertinent hereto, the sole stockholder, director, and officer of Hartnett, Inc. At all times pertinent to this proceeding, Fred B. Hartnett, was the individual with Hartnett, Inc., who had been appointed as the agent of Granada Insurance Company. In 1991, Fred B. Hartnett was approximately 90 years of age, but he remained active in his business. In 1991, Respondent was not an officer, director, or shareholder of Hartnett, Inc. In August 1991, the co-owners of the subject property received a premium renewal notice for the Granada policy that was to be paid to the Hartnett Agency. The amount of the renewal premium was $4,485. Granada initially informed Hartnett, Inc. that the renewal premium for the subject property would be in the amount of $5,008. Following that initial determination, the Respondent asked Richard Friedburg, one of Granada's underwriters, to determine whether the premium for the subject property could be reduced. As a result of that discussion, a revised quote of $4,485 for the renewal premium was made by Granada. The billing to the co-owners for the renewal premium was from Hartnett, Inc. The transmittal letter, dated August 6, 1991, was on a Hartnett, Inc. form and was signed on behalf of Hartnett, Inc. by Maria Rienoso. The letter referenced the Granada policy and provided, in pertinent part, as follows: Enclosed please find a bill and applications which we ask that you review and sign where indicated by a check mark so we may process renewal of the above captioned policy . . . If you have any questions, do not hesitate to contact our office. We ask that you forward signed applications and renewal premium to our office no later than 9/3/91 to insure there is no lapse in coverage. On August 21, 1991, a check representing the renewal premium for the Granada policy in the amount of $4,485 was made out and signed by two of the co- owners, Ms. Maroon and Ms. Ehrenhaft. Ms. Rouviere, the only one of the three co-owners who testified at the formal hearing, was not present when the renewal check was prepared or executed. Ms. Rouviere did not have firsthand knowledge as to how the renewal check was delivered to the Hartnett Agency. There was no evidence that any of the three co-owners had any direct conversations or direct contact with Respondent pertaining to the renewal of the policy. On or about August 22, 1991, the Respondent received check #646 executed by Ms. Maroon and Ms. Ehrenhaft in the amount of $4,485 that was to be in payment of the Granada renewal premium. The check was deposited into a bank account of Hartnett, Inc. There was no evidence that Respondent had any control over this account. Hartnett, Inc. had handled the insurance on the subject property for several years. The only agent with whom Ms. Rouviere dealt at the Hartnett agency was the Respondent. There was no evidence as to whether the other two co-owners dealt with other agents at Hartnett, Inc. In August 1992, the subject property was damaged by Hurricane Andrew. In October 1992, the claim filed with Granada by the co-owners of the subject property was denied on the grounds that Granada had never received the renewal premium and had, consequently, cancelled the policy prior to the date of loss. At all times pertinent to this proceeding, Hartnett, Inc. was on an "account current" basis with Granada Insurance Company, which meant that Granada billed Hartnett, Inc., for Granada policies that had been bound by Hartnett, Inc. Granada Insurance Company did not bill Hartnett, Inc., for the renewal policy for the subject property because it did not know that Hartnett, Inc., had bound the renewal coverage. On August 3, 1990, an Amended Final Order was filed in a disciplinary proceeding that had been instituted against Respondent by the Petitioner. The style of that proceeding was "In the Matter of William John Hartnett" and Petitioner's case number was 86-L-595RET. The Amended Final Order placed the Respondent on probation pursuant to Section 626.691, Florida Statues, for a period of two years from August 3, 1990. Among the special conditions of probation was subsection (d), which provided in pertinent part, as follows: (d) During the period of probation, Respondent shall take special care to ensure that his accounts with insurers and/or managing general agents are kept current and that insurance premiums are properly remitted to insurers and/or managing general agents in the applicable regular course of business. . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order which dismisses the administrative complaint filed against Respondent. DONE AND ENTERED this 18th day of July, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7153 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 6, 7, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order, but are rejected to the extent they are unsubstantiated by the evidence or are contrary to the findings made. The proposed findings of fact in the first sentence of paragraph 9 are unnecessary as findings of fact, but are incorporate as a conclusion of law. The proposed findings of fact in the last sentence of paragraph 9 are adopted in material part by the Recommended Order. The following rulings are made as to the findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1 and 2 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3 and 4 are subordinate to the findings made. The proposed findings of fact in paragraph 5 are rejected as being conclusions which are unnecessary as findings of fact and which are rejected to the extent they are contrary to the conclusions reached. COPIES FURNISHED: Lisa S. Santucci, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 William L. Rogers, Esquire 2750 International Place 100 Southeast Second Street Miami, Florida 33131 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue in this case concerns the determination of the appropriate administrative penalty to be imposed upon a physician who admits a violation of Section 458.331(1)(c), Florida Statutes.
Findings Of Fact Stipulated facts Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0032352. Petitioner's last known address is 1520 S.W. 103rd Avenue, Miami, Florida 33174- 2772. In or about 1989, Respondent was charged in the United States District Court, Southern District of Florida, by information Number 89-0137 Cr-Aronovitz, with one (1) count involving, but not limited to, Mail Fraud and Conspiracy to Defraud the United States Government. The Information charged that the Respondent signed Medicare insurance forms indicating Respondent provided podiatric or medical services to patients whom Respondent had not seen, and mailed the forms to the Blue Cross Blue Shield insurance company for payment. Said charge directly related to the practice of medicine. On or about September 14, 1989, the Respondent entered a plea of Guilty to Count One of the Information. The Court found the Respondent guilty of Count One and Ordered the Respondent to confinement which was suspended, and placed the Respondent on probation for a period of three (3) years. Additionally, the Respondent was ordered, as a condition of his probation, to pay $144.00 to the Department of Health and Human Services and to perform 250 hours of community service within his probation. Additional facts proved at hearing The Respondent has completed the three-year period of probation imposed by the United States District Court. The Respondent is active in his church and is well thought of in his social community, where he enjoys a reputation for being a person of honesty and integrity. Among his professional colleagues the Respondent has a reputation for being a good, caring, and compassionate physician. He also enjoys a reputation for honesty and integrity amongst his professional colleagues, including physicians who practice in his community and the administrators of the clinics where he is employed. The Respondent has been a medical doctor since 1959, when he graduated from the University of Havana in Cuba. The Respondent came to the United States in 1976 and he has practiced medicine in the State of Florida since his initial licensure in this state in 1978. The Respondent feels remorseful and embarrassed with regard to the conduct which led to his criminal conviction. Following his arrest, he assisted the government in the prosecution of others. There is no evidence that the Respondent has been involved in any other misconduct. The Respondent practices general medicine in a clinic setting, dividing his time between three different clinics. He is not responsible for billing for medical services at any of the clinics where he performs services.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case concluding that the Respondent has violated Section 458.331(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing an administrative penalty consisting of (a) a reprimand, (b) a two- year period of probation during which period the Respondent shall also perform 100 hours of community service of a type to be determined by the Board, and (c) an administrative fine in the amount of two thousand five hundred dollars ($2,500.00). It is also recommended that the Final Order provide that during the period of probation any billing records that may be prepared by the Respondent be personally reviewed by either the administrators of the clinics at which the Respondent practices or by a physician designated by the Board. DONE AND ENTERED this 4th day of February, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 4th day of February, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 92-1078 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: All six paragraphs of findings proposed by the Petitioner have been accepted and included in the Findings of Fact in this Recommended Order. Findings submitted by Respondent: Paragraphs 1 through 5: Accepted. Paragraph 6: Rejected as constituting description of events at the formal hearing, rather than proposed findings regarding the issues at hand. Paragraph 7: Accepted in substance that the Respondent has a reputation for integrity in his community and is active in his church, but the remainder is rejected as subordinate and unnecessary details. Paragraphs 8 through 11: Accepted that the Respondent has a reputation among his colleagues as a good, caring, and compassionate physician, but most of the remainder is rejected as subordinate and unnecessary details. Paragraph 12: Rejected as subordinate and unnecessary details or as irrelevant to the issues to be resolved. Paragraph 13: First sentence is accepted in substance. The second sentence is rejected as not supported by persuasive evidence; the Respondent's testimony to the effect proposed here is not persuasive in light of other facts in this case. COPIES FURNISHED: Barbara Whalin Makant, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Mr. Lowe should be disciplined for fraudulent conduct as a licensed insurance agent by making false representations on insurance applications, by fraudulently signing the names of spouses on insurance applications, and by fraudulently signing the names of insureds on cancellation forms.
Findings Of Fact Lawrence Sherman Lowe, III is licensed and eligible for licensure as a life (2-16), life and health (2-18), and health (2-40) insurance agent. At the times pertinent to the allegations of the administrative complaint, Mr. Lowe was licensed as a life and health insurance agent for Colonial Life and Accident Insurance Company (Colonial). Colonial offers insurance to state employees as part of group insurance plans and also offers individual policies of insurance. Some insurance programs are available to spouses of state employees, and have benefits similar to those in the group plans, but they have a higher premium and may have different underwriting criteria. Bill Hopkins is marketing director for Colonial, and has held that position since 1977. Before that, he was an agent with the company. Mr. Hopkins' responsibilities include recruiting, training, and working with various sales directors for the company. Although Mr. Hopkins is a licensed insurance agent, he does not actively solicit insurance business now, but oversees the marketing of Colonial's insurance products to employees of 24 agencies of the State of Florida. Mr. Hopkins was generally responsible for hiring Mr. Lowe. Mr. Lowe's initial sales territory was Florida from Fort Pierce to Key West. Colonial makes available correspondence courses for agents concerning underwriting and other aspects of the insurance business pertinent to products offered by Colonial; its agents also receive on the job training. In 1987 colonial began to offer quarterly workshops to its agents and sales directors, which Mr. Lowe attended. In the course of soliciting insurance contracts, agents often complete the top form of the application for the potential insured. Mr. Lowe knew that information about a potential insured was to be taken in the presence of the applicant, and that the applicant had to sign the policy application, attesting to the correctness of the information contained therein. Insurance companies cannot offer to state employees whatever insurance products they wish. The insurance products must be approved by each state agency before employees may be solicited by Colonial's agents to purchase approved products. Colonial's agents are compensated by commissions on policies they sell, and they receive renewal commissions as long as the agent remains under contract with Colonial and the policies they sold remain in force. The supervisors of agents, such as Mr. Hopkins, receive compensation in the form of override commissions based on the productivity of the agents supervised. Those override commissions are the sole source of Mr. Hopkins' compensation. J. Frank Manning, Jr. is Assistant General Counsel for Colonial, and is responsible for managing litigation and advising several departments within the company. Mr. Manning came to know about Mr. Lowe shortly after joining the company, when Mr. Lowe received a Hall of Fame Award from the company for being the nation's top producer of business for that year. Under his contract with Colonial, Mr. Lowe marketed plans of group health, life and disability insurance to employees of the State of Florida. The Department of Health and Rehabilitative Services did not approve sickness riders as insurance products which agents of Colonial were entitled to solicit from employees of that department. Spouses and dependents of state employees may be insured for accident and disability through a rider attached to the policy of the primary insured, i.e. the state employee. If a state employee obtains coverage for a spouse through a rider attached to a policy issued to an employee, premiums for the rider may be paid through payroll deduction from the salary warrant of the employee, or through a bank authorization to deduct the premium for the rider directly from the checking account of the employee. The processing of the applications is completed by the agent, and is summarized on various sheets which are then forwarded to the company. As marketing director, Mr. Hopkins does not receive copies of applications, cancellations, or other background documents from agents. Hopkins only receives copies of the summary transmittal sheets for each agent. In November of 1987, Mr. Lowe solicited an application for disability insurance with an accidental death benefit rider from Tracy Bethay- Reed, who was employed by the Department of Health and Rehabilitative Services. She also wanted coverage for her husband, Roy Reed. Mr. Reed was not employed by the State of Florida, but by General Electric as a truckdriver, earning approximately $240.00 per week. Mr. Reed's salary had to be $35,000 per year to qualify for the insurance policy Mr. Lowe sold him. Mr. Lowe knew this from his training, see, Finding 4, above. Mr. Lowe advised Mrs. Reed that her husband would be eligible for life insurance in the amount of $50,000. On November 20, 1987 Mr. Lowe submitted an application to colonial on behalf of Roy Reed, which represented that he was an employee with the State of Florida, Department of Health and Rehabilitative Services with a salary of $35,000 annually. It is not unusual for Colonial to insure a husband and wife who are employed by a single state agency. Mr. Lowe misrepresented Roy Reed's occupation, employer, and annual income on that application, and signed Mr. Reed's name to that application. If Mr. Lowe had disclosed Mr. Reed's true employer and earnings, Roy Reed would not have been eligible for State of Florida employee group accidental death insurance with Colonial. He might have qualified for an individual policy, had an application for such a policy been made. On about May 1, 1988, Roy Reed was killed in an automobile accident. Colonial paid a death claim of $50,000 to Mrs. Bethay-Reed. In March of 1988, Mr. Lowe solicited by telephone an application for disability insurance for Albert Pelham, who was married to Sandra Pelham, an employee of the State of Florida Department of Health and Rehabilitative Services. Mrs. Pelham told Mr. Lowe that her husband, Albert, was employed as a construction worker by S.E.U. Construction, a private business. On about March 28, 1988 Mr. Lowe submitted and application to Colonial Life for disability insurance for Albert Pelham. On the application, Mr. Lowe fraudulently signed the name of Albert Pelham, and represented that Albert was a registered nurse. If Mr. Lowe had truthfully disclosed Albert Pelham's employment, the application submitted to Colonial would not have qualified Albert Pelham for disability income benefits. Albert Pelham later became temporarily unable to work due to an injury and Colonial paid disability benefits to Mr. Pelham. About July 15, 1988, Bill Hopkins of Colonial told Mr. Lowe his contract with Colonial was being terminated for cause, based on his misrepresentations on policy applications. As a result of the claims filed by Mr. Reed and Mr. Pelham, it had dawned on officers at Colonial that Mr. Lowe had been such a successful agent because he had been writing insurance in an unauthorized manner, i.e., he had routinely processed applications which indicated that both spouses were employees of the State of Florida when that was not the case, and obtained insurance on both, which was paid for by a payroll deduction from the spouse who was a state employee. Colonial instituted a civil suit against Mr. Lowe seeking damages, an injunction, and other remedies for breach of contract, in part to recover the funds paid by Colonial on the Reed and Pelham claims. That suit was settled; the terms of the settlement included a requirement that Mr. Lowe make a cash payment to Colonial in the amount of $60,000 and not to compete with Colonial as an insurance agent. Mr. Lowe agreed to give Colonial a quarterly list of his accounts so that Colonial could determine whether or not Mr. Lowe had engaged in any violation of the noncompetition clause of the settlement agreement. The $60,000 Mr. Lowe was to pay Colonial under the settlement was not paid in a lump sum. Rather, Mr. Lowe was required to pay $7,500 at the time the settlement was signed and $500 a month for several years, with a balloon payment at the end of that payment schedule. Mr. Lowe actually paid $8,000 at the time the settlement was signed and has made the monthly payments required under the settlement agreement. Shortly after he was terminated as an agent of Colonial, on about July 20, 1988, Mr. Lowe submitted to Colonial a request to cancel a life insurance policy issued on the life Frederick Fowler. Mr. Fowler did not authorize this cancellation request. Mr. Fowler did not sign the cancellation request, or authorize anyone else to sign the request. Mr. Lowe fraudulently signed Mr. Fowler's name to the request. On or about that same day, July 20, 1988, Mr. Lowe submitted a request to Colonial Life to cancel a life insurance policy on the life of Elijah Lewis. Mr. Lewis did not authorize this cancellation request. Mr. Lewis did not sign the cancellation request nor did he authorize anyone to sign such a request. Mr. Lowe fraudulently signed Mr. Lewis' name to the request. On about August 3, 1987, Mr. Lowe had submitted an application to Colonial Life for health and accident insurance on Julio Proven of Miami, Florida. Mr. Proven was not an employee of the State of Florida, Department of Health and Rehabilitative Services although the insurance application represented that he was. Mr. Lowe filled in the fraudulent information, and also signed Mr. Proven's name to that application although Mr. Proven neither signed an application nor gave anyone the authority to sign such an application for him. Once again, on or about July 20, 1988, Mr. Lowe submitted a request to Colonial Life to cancel the insurance policy which had been issued to Mr. Proven. Mr. Proven did not authorize the cancellation request. Mr. Proven did not sign the request nor did he authorize anyone else to sign the request. Mr. Lowe fraudulently signed Mr. Proven's name to this request. On or about August 4, 1987, Mr. Lowe had submitted an application to Colonial Life for health and accident insurance on Angel Fajardo of Miami, Florida. The application fraudulently represented Mr. Angel Fajardo was employed by the State of Florida Department of Health and Rehabilitative Services as an administrative assistant. Mr. Fajardo did not sign the application nor did he given anyone else the authority to sign the application. Mr. Lowe signed Mr. Fajardo's name to the application. As with the other cancellations, on about July 20, 1988, Mr. Lowe submitted a request to Colonial to cancel the insurance policy issued to Angel Fajardo. Mr. Fajardo did not sign the cancellation request, nor did he authorize anyone else to sign the request. Mr. Lowe fraudulently signed Mr. Fajardo's name to this request. Mr. Lowe contends that he was directed by his superiors at Colonial to cancel Mr. Fajardo's insurance policy or else Mr. Lowe would lose his job and face a law suit. Whether or not he was under any threats from Colonial to get business off the books which Mr. Lowe had obtained through false representations in insurance applications, he did not have the right to forge the names of insureds on applications for cancellation of those policies. On or about August 3, 1987, Mr. Lowe had submitted an application to Colonial Life for health and accident insurance on Ernest Wilson of Miami, Florida. The application represented fraudulently that Mr. Wilson was employed by the State of Florida Department of Health and Rehabilitative Services. Mr. Wilson did not sign the application, nor did he give anyone else the authority to sign the application for him. Mr. Lowe fraudulently signed Mr. Wilson's name to that application. On or about July 20, 1988, Mr. Lowe submitted a request to Colonial Life to cancel the insurance policy issued to Ernest Wilson. Mr. Wilson did not sign the cancellation request, nor did he authorize anyone else to sign the request. Mr. Lowe fraudulently signed Mr. Wilson's name to the cancellation request. Mr. Lowe's contention that he only admitted that he wrote Mr. Wilson's name on the cancellation form in the location calling for the insured's printed name but that he did not sign Mr. Wilson's name at the bottom of the form is rejected. On about November 3, 1987, Mr. Lowe had submitted an application to Colonial for health and accident insurance on Felix Rodriguez. The application fraudulently represented that Mr. Rodriguez was an employee of the State of Florida Department of Health and Rehabilitative Services. Mr. Rodriguez did not sign the application, nor did he give anyone else the authority to sign it. Mr. Lowe fraudulently signed Mr. Rodriguez's name to that application. On or about July 20, 1988, Mr. Lowe submitted a request to Colonial to cancel the insurance policy issued to Felix Rodriguez. Mr. Rodriguez did not sign the cancellation request, nor did he authorize anyone else to sign the request. Mr. Lowe fraudulently signed Mr. Rodriguez's name to the cancellation request. Any threats made by employees of Colonial to take action against Mr. Lowe if the Rodriguez policy was not terminated fail to justify Mr. Lowe's forging the name of Mr. Rodriguez to a cancellation request. On about November 10, 1987, Mr. Lowe had submitted an application to Colonial for health and accident insurance on Lourdes Mier of Hialeah, Florida. Despite what is contained on the application, Lourdes Mier was not employed as an investigator by the Florida Judicial Branch Number 11, i.e., she was not an employee of the Eleventh Judicial Circuit. Mrs. Mier did not sign the application, nor did she give anyone else the authority to sign it for her. Mr. Lowe fraudulently signed Mrs. Mier's name to the application. On July 20, 1988, Mr. Lowe submitted a request to Colonial to cancel the insurance policy issued to Mrs. Mier. Mrs. Mier did not sign the cancellation request, nor did she authorize anyone to sign it for her. Mr. Lowe fraudulently signed Ms. Mier's name to the cancellation request. On July 20, 1988, Mr. Lowe submitted a request to Colonial to cancel the insurance policy issued to Alton Glass. Mr. Glass did not sign the cancellation request, nor did he authorize anyone to sign it for him. Mr. Lowe fraudulently signed Mr. Glass' name to the cancellation request. On or about February 12, 1988, Mr. Lowe had submitted an application to Colonial for health and accident insurance on Valty Raymore of Miami, Florida. Mr. Raymore was not an R.N. employed by the State of Florida Department of Health and Rehabilitative Services as disclosed on the application. Mr. Raymore did not sign the application nor did he authorize anyone to sign it for him. Mr. Lowe fraudulently signed Mr. Raymore's name to that application. On or about July 20, 1988, Mr. Lowe submitted a request to Colonial Life and Accident Insurance Company to cancel the life insurance policy issued to Mr. Raymore. Mr. Raymore did not sign the cancellation request nor did he authorize anyone to sign it for him. Mr. Lowe fraudulently signed Mr. Raymore's name to the cancellation request. On or about July 20, 1988, Mr. Lowe submitted a request to Colonial to cancel an insurance policy issued to Willie Oliver. Mr. Oliver did not sign the cancellation request nor did he authorize anyone to sign it for him. Mr. Oliver did not authorize the cancellation. Mr. Lowe fraudulently signed Mr. Oliver's name to this request. He also forged the name of Jana C. Lowe as a witness to the request. Mr. Lowe's argument that he only admitted that he wrote Mr. Oliver's name on the cancellation request at the location calling for the insured's printed name, but that he did not sign it for Mr. Oliver, is rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a Final Order revoking the licenses and eligibility of Lawrence Sherman Lowe III, to hold licenses with respect to the business of insurance. DONE and ENTERED this 31st day of July, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1990.
Findings Of Fact Petitioner is the state agency charged with licensing insurance agents of all types, regulating licensure status, and enforcing the practice standards of licensed agents within the powers granted by the Legislature in Chapter 626, Florida Statutes. At all times material to the disciplinary action, Respondent Mahle was licensed as an insurance agent in the following areas: Life and Health Insurance and Health Insurance. During the last quarter of the year 1988, New Concept Insurance, Inc. mailed brochures to residents of Naples, Florida, which stated that representatives of the company were willing to provide information about long- term care insurance, including nursing facility benefits, to interested parties. Those who wanted to learn more about the insurance were asked to return their name, address and telephone number to the company on an enclosed card. Eleanor Drown responded to the advertisement, and an appointment was arranged for Thomas DiBello and Respondent Mahle to meet with her regarding the insurance program. On November 10, 1988, Thomas DiBello and Respondent Mahle met with Ms. Drown and discussed the benefits of a long-term care policy with a nursing facility daily benefit of one hundred dollars ($100.00). After the discussion, Ms. Drown completed an application for the insurance and gave it to Respondent Mahle, along with a check for five thousand one hundred and eighty-three dollars and forty-nine cents ($5,183.49). During the insurance transaction on November 10, 1988, Ms. Drown was given a receipt which states: This receipt is given and accepted with the express understanding that the insurance you applied for will not be in force until the policy is issued and the first premium is paid in full. If your application cannot be approved, we will promptly refund your money. Application is made to the company checked (/) on this receipt. On another area of the receipt, it is clearly written, as follows: If Acknowledgement of Application does not reach you within 20 days, write to: Mutual Protective Insurance Company, 151 South 75th Street, Omaha, Nebraska 68124. The Respondent Mahle did not forward the application and the check completed by Ms. Drown to Mutual Protective Insurance Company. The check issued by Ms. Drown to Mutual Protective Insurance Company was deposited into the account of New Concept Insurance, Inc. A cashier's check for the same amount of money was issued by New Concept Insurance, Inc. to Ms. Drown on March 7, 1989. The letter from New Concept that was mailed with the check represented that the check was the refund of the money paid to Mutual Protective Insurance Company by Ms. Drown. Mitigation An application for long-term care insurance from a different insurance company was sent to Ms. Drown by Respondent Mahle on March 2, 1989. Although this course of conduct was not directly responsive to the duties owed by the Respondent to Mutual Protective Insurance Company or his customer, Ms. Drown, it does demonstrate a concern about the insurance needs requested by the customer. This conduct also reveals that there was no intention to convert the funds received to the Respondent's own use, and it explains some of the delay in the return of the premium funds to the customer. The Respondent has been an insurance agent for twenty years. This was the only complaint against the Respondent the Hearing Officer was made aware of during the proceedings. The allegations in the Complaint involve a single insurance transaction.
Recommendation Accordingly, it is RECOMMENDED: That the Respondent be found guilty of one violation of Section 626.561(1), Florida Statutes, and one violation of Section 626.611(7), Florida Statutes, during a single insurance transaction. That the Respondent pay an administrative penalty of $500.00 for the two violations of the Insurance Code within thirty days of the imposition of the penalty. That the Respondent be placed upon six month's probation. During this probation period, he should file a report with the Department demonstrating the manner in which he intends to keep accurate business records which assure him, the insurance company, and the customer that he is continuously accounting for premium funds and promptly carrying out his fiduciary responsibilities. That the Respondent's requests for licensure dated October 10, 1989 and May 18, 1990, be granted. DONE and ENTERED this 12th day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. 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 12th day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-6040 The Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #2. Accepted. See HO #2. Accepted. Accepted. See HO #5. Accepted. See HO #5. Accepted. See HO #5. Accepted. See HO #5. Rejected. Conclusion of Law. Rejected. See HO #6. Accepted. See HO #7. Accepted. See HO #7. Accepted. See HO #7. Accept that Ms. Drown's funds remained in the insurance agency's financial accounts for four months. Reject that the interest bearing ability of these funds is relevant in any manner to this case. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3 and #4. Accepted. See HO #5. Accepted. See HO #5. Accepted. See HO #5. Accepted. Rejected. This testimony was rejected by the hearing officer as self serving. It was not found to be credible. Rejected for the same reasons given immediately above. Accepted, but not particularly probative. Rejected. Contrary to the testimony of Ms. Drown which was believed by the hearing officer. Accepted. Rejected. Contrary to the testimony of Ms. Drown which was believed by the hearing officer. Accept that an application for Penn Treaty Insurance was sent to Ms. Drown on this date. Accepted. Rejected. Contrary to the testimony of Ms. Drown which was believed by the hearing officer. Rejected. Self serving. Not believed or found to be credible by the hearing officer. Accepted. See HO #9. COPIES FURNISHED: C. Christopher Anderson III, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Mark P. Smith, Esquire GOLDBERG, GOLDSTEIN & BUCKLEY, P.A. 1515 Broadway Post Office Box 2366 Fort Myers, Florida 33902-2366 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether Petitioner's application for licensure as a health insurance agent should be granted.
Findings Of Fact By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Naomi A. Visser for licensure as a health insurance agent. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 21st day of January, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Naomi A. Visser 1617 London Grove Port Road Grove City, Ohio 43123 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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 the Respondent committed the acts alleged in the Administrative Complaint?
Findings Of Fact At all times relevant to the dates and occurrences set forth in the Petitioner's Administrative Complaint of August 23, 1991, Respondent, Betty Claire Fiquette, was licensed in the State of Florida as a life and health (debit) insurance agent, as a life and health insurance agent, and as a general lines - limited to industrial fire insurance agent. (Pet. No. 1) At all times relative to the dates and occurrences set forth in the Petitioner's Administrative Complaint, Respondent was employed by the Independent Life and Accident Insurance Company (hereinafter referred to as "Independent") as a life insurance agent. (Pet. No. 1, T. 201). FINDINGS OF FACT AS TO COUNT I OF PETITIONER'S ADMINISTRATIVE COMPLAINT On or about August 28, 1989, Respondent solicited and procured from Kelly Carroll of Tallahassee, an application for emergency hospitalization insurance for her son, Sean Carroll. (Pet. No. 3). This was the only hospitalization insurance which Ms. Carroll could afford at that time for her son; however, she advised the Respondent that she wanted insurance to cover doctor's visits. Independent issued an emergency hospitalization insurance policy, number 1816130A, to Kelly Carroll. (Pet. No. 3) On or about March 19, 1990, the Respondent called Ms. Carroll and told her that the company had a rider which would cover doctor's visits and prescription medications. (T 78,81,94). The Respondent procured from Kelly Carroll an application for an outpatient surgery rider for Independent policy number 1816130A. (T. 78, 81, 94). Said rider was issued by Independent. (Pet. No. 3). Said policy rider provided for payment by Independent for expenses for two doctor visits and outpatient surgery for Sean Carroll. It did not cover prescriptions. (Pet. No. 3, T. 205) Ms. Carroll subsequently had to take her son to the doctor. She had to pay for prescriptions and for doctor's visits in excess of the two covered visits. See T 78 et seq. Ms. Carroll did not testify that the Respondent represented to her that the policy would pay for all doctor's visits. The Respondent did not tell Ms. Carroll how many doctor's visits were covered. The Respondent did tell Ms. Carroll that the policy rider would pay for prescriptions. However, it is clear from Ms. Carroll's testimony that coverage for the prescriptions was not material to her decision to take out the coverage. No evidence was offered that Respondent intentionally misstated the prescription coverage to Ms. Carroll. FINDINGS OF FACT AS TO COUNT II OF PETITIONER'S ADMINISTRATIVE COMPLAINT On or about January 30, 1989, Respondent sold a health insurance policy to Melissa Schilb of Tallahassee. (Pet. No. 3). The policy sold by Respondent to Mrs. Schilb was a fixed-rate indemnity health insurance policy with preset payment amounts for each type of covered medical procedure. (Pet. No. 4). Mrs. Schilb was interested in purchasing health insurance at the time of said solicitation because she and her husband wished to have a baby. (T. 97). The Respondent went over the details of the policy coverage with the Schilbs. (T-101-102,104). Mr. Schilb could not afford the more expensive policy sold by his employer (T-103 and 105). Having explained the coverages amounts, the Respondent represented that the coverages would be sufficient to cover most of Mrs. Schilb's childbirth related medical expenses, and that the Schilb's would only have to pay a few hundred dollars. (T. 98, 100, 106, 109). The Schilbs' health insurance policy paid $800 to the hospital and $600-800 to the doctor for prenatal care. The Schilbs had approximately $3,000 in hospital expenses arising from the delivery of Mrs. Schilb's child and $2,000 in doctor's bills during the course of her pregnancy. (T. 102, 110). FINDINGS OF FACT AS TO COUNT III OF PETITIONER'S ADMINISTRATIVE COMPLAINT In 1988, Independent Life issued two graded life insurance policies to Leola Greene. Ms. Greene examined these two policies at the hearing, and identified her signature on the one issued 9/6/88. She denied the signature on the policy application dated 6/8/88 was her signature. On 5/22/89 Ms. Greene signed an application for a graded life insurance policy in the amount of $3,000.00. Ms. Greene identified her signature on this policy. On 6/18/90 Ms. Greene signed an application for a graded life insurance policy in the amount of $3,000.00. Ms. Greene identified her signature on this policy. Leola Greene's contradictory testimony was that she never had taken out a $3,000 graded life policy, although she identified her signature on two such policies. (T 121-123). ^ Ms. Greene admitted that the Respondent went over the policies with her every time Ms. Greene bought a policy, and the Respondent's descriptions of the policies was accurate. (T 126, 127). Ms. Greene let her policies lapse numerous times. (T 167, 217). Ms. Greene was afforded the opportunity by Independent Life to purchase $5,000 of insurance, but was unable to afford the premiums. Ms. Greene's $5,000 life insurance policies lapsed, and she purchased the $3,000 graded life policies. The allegations regarding the Respondent and Ms. Greene are not proven. FINDINGS OF FACT AS TO COUNT IV OF PETITIONER'S ADMINISTRATIVE COMPLAINT Jackie L. Robinson had been buying various Independent insurance products from the Respondent since the 1980's. (T 129). He testified that he thought his two children were covered under health insurance which he had purchased. Mr. Robinson's testimony is vague as to the time of the purchase and the period the children were covered. Mr. Robinson was unable to identify the policies presented to him at the hearing. The Respondent admitted she had sold Mr. Robinson a health insurance policy, and a policy which covered the health of his children. However, Robinson let the policies on the children lapse. (T 131,221,222). Although the policies were introduced and their dates can be determined, Mr. Robinson's testimony was not specific about the time during which the children's medical bills were not covered. According to Mr. Brewster, Mr. Robinson did not make a claim against the policy on the children while it was in effect. The allegations regarding Respondent and Mr. Robinson are not proven.
Recommendation Based upon the consideration of the facts, and in view of the conclusions of law, it is, RECOMMENDED: That a Final Order be entered dismissing the charges against the Respondent. DONE and ENTERED this 1st day of May, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 May, 1992. Petitioner's Facts ANNEX A CASE NO. 91-6053 Paragraphs 1 through 6 adopted. Paragraph 7 rejected "all of," adopted remainder. Paragraphs 8 and 9 rejected as irrelevant. Paragraph 10 adopted. Paragraph 11 rejected as irrelevant. Paragraphs 12 through 16 adopted. Paragraph 17 rejected as irrelevant. Paragraphs 18 through 22 rejected as contrary to facts. Paragraph 23 adopted. Paragraph 24 rejected as contrary to facts. Paragraph 25 rejected as irrelevant. Paragraphs 26 through 28 rejected as contrary to facts. Paragraphs 29 through 31 adopted and restated. Paragraphs 32 and 33 rejected as irrelevant. Paragraphs 34 and 35 rejected as contrary to facts. Paragraphs 36 through 39 rejected as irrelevant. Respondent's Facts Paragraphs 1 through 3 adopted. Paragraph 4 rejected as argument. Paragraphs 5 and 6 adopted. Paragraph 7 rejected as irrelevant. Paragraphs 8 through 14 adopted. Paragraph 15 rejected as irrelevant. Paragraphs 16 and 17 adopted. Paragraph 18 rejected argument. Paragraph 19 rejected as unnecessary. Paragraph 20 rejected as unnecessary. Paragraph 21 rejected as irrelevant. COPIES FURNISHED: Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Joseph D. Mandt, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300 Samuel Lewis, Esquire 1017-A Thomasville Road Tallahassee, FL 32303
The Issue The issues to be resolved in these proceedings concern whether the Petitioner is entitled to licensure as a non-resident life and health insurance agent in Florida in consideration of a prior history involving a criminal charge concerning a felony of moral turpitude, as well as his alleged failure to disclose prior disciplinary actions against his licenses by Florida and Wisconsin, which arose out of the same felony charge.
Findings Of Fact The Petitioner is a licensed insurance agent, who has been practicing as an insurance agent for 25 years in Minnesota, Florida and Wisconsin. His Florida licensure was suspended for a period of two years by Final Order of the Department entered on November 25, 1985. That regulatory situation is described in more detail below. The Petitioner has now applied for licensure in Florida as a non- resident life and health insurance agent. He primarily practices insurance in the State of Minnesota, his native state. He did, however, practice in Florida from approximately 1980 to 1985 but relocated to Minnesota after his prior Florida disciplinary experience. The Respondent is an agency of the State of Florida charged with enforcing the licensure standards for insurance. Those standards are embodied in Chapter 626, Florida Statutes. The Respondent is charged with insuring that licensed applicants and licensed agents comply with those standards and with conducting enforcement actions and imposing penalties up through and including licensure revocation or denial where agents or applicants fail to comply with Florida's insurance law. Upon the convening of the prior disciplinary action against the Petitioner in 1984, the Petitioner was licensed as an ordinary life and disability insurance agent, doing business as Steven Miller Insurance and Associates in Daytona Beach, Florida. On June 2, 1983, the Petitioner was charged, by criminal information in Case No. 83-2219-CC, with two felony counts, Count One being presentation of a fraudulent insurance claim in violation of Section 817.234, Florida Statutes, and Count Two being a charge of grand theft of the second degree, in violation of Section 812.014, Florida Statutes. On January 5, 1984, the Petitioner entered a plea of nolo contendere to the felony offense of grand theft, second-degree felony. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit in and for Volusia County, Florida (Circuit Court) accepted that plea and placed the Petitioner on three years of supervised probation, but withheld adjudication of guilt and imposition of sentence. On July 18, 1985, the Petitioner was discharged early from his probation, after successfully completing 18 months of the original three-year probationary period. In June of 1982, the Petitioner's wife's sister and her husband came to Florida to visit the Petitioner and his wife for a period of time. The Petitioner's brother-in-law and wife were having severe financial problems. The Petitioner owned a 24-foot boat at the time, which he kept stored in a vacant lot, behind a chain-link fence, in the vicinity of his home. Several days after his brother-in-law and sister-in-law returned to their home in Minnesota, the Petitioner noticed that his boat was missing. On June 29, 1982, he reported the boat as being stolen to the Daytona Beach Police Department. Several months after reporting the theft, he filed an insurance claim seeking reimbursement on his insurance policy for the theft of the boat. Approximately one year later, the boat was found in the possession of his brother-in-law, who had returned to his home in Minnesota shortly before the boat was reported stolen. In order to save himself from prosecution, the brother-in-law claimed that the boat had been given to him by the Petitioner and that he had not stolen it. Consequently, the Petitioner was charged with one count of insurance fraud, a felony, and the other charge referenced above involving second-degree grand theft, also a felony. According to the Petitioner, he presented adequate proof that he had not stolen the boat and the insurance fraud charges were immediately dropped. He was then informed, by his counsel in the criminal matter, with the agreement of the state attorney and the court, that, in effect, if he pled nolo contendere to the grand theft charge, the criminal matter could be put behind him with a minimum of anguish and expense. In return for such a pleading, he was assured that it would effectively be the same as pleading not guilty, that his insurance license would not be affected by the matter or the result, and that by so pleading, he could avoid the straining of his marriage because of the family relationship involved in the underlying facts. Consequently, the Petitioner pled nolo contendere to the second criminal charge involving second-degree grand theft. Adjudication and sentencing were withheld, and he was placed on three years of supervised probation, which he successfully completed in 18 months. Thereafter, on or about October 25, 1984, an Administrative Complaint was filed by the Department against the Petitioner in Case No. 84-L-360LS (DOAH Case No. 84-4124), which ultimately went to hearing before a Hearing Officer of the Division of Administrative Hearings. The issue in that proceeding concerned whether disciplinary measures provided for in Sections 626.611 and 626.621, Florida Statutes, should be imposed for the plea of nolo contendere to a felony offense involving moral turpitude. The Hearing Officer, after finding the facts as delineated above, entered a Recommended Order finding that the offense charged did involve moral turpitude and that the petitioner in that case had met its burden of proof of showing a violation which could stand independently of whether or not there had been an adjudication of guilt. Accordingly, the Hearing Officer recommended that a Final Order be entered suspending the Petitioner's licensure for a period of two years and, by Final Order entered on November 25, 1985, the Department adopted the Recommended Order as the agency's Final Order and imposed a suspension of licensure for a period of two years from that date. Thus, the suspension terminated on or about November 25, 1987. On his application for licensure, dated November 29, 1994, in response to the question concerning whether his application or licensure had ever been suspended, etc., the Petitioner answered "yes". The question requires no explanation of the circumstances on the application form. The Petitioner, however, gratuitously, drew an arrow to the margin of the form and indicated that he had been suspended in Minnesota in 1987 briefly, for two weeks, for accidentally "overlapping" a medicare supplement policy too long. He wrote no such explanation concerning his Florida suspension occurring in 1985. The Petitioner, however, established that he knew, of course, that the Department already had knowledge of that suspension, it having entered a Final Order, still in its records, suspending him for two years, as referenced in the above Findings of Fact. Moreover, the Petitioner was under the impression that since that suspension arose out of the criminal activity with which he had been charged and which record had been sealed by order of the Circuit Court, he need not respond in the affirmative to that question concerning the Florida suspension. That is the same reason he answered "no" to the question concerning any plea or conviction involving a crime of moral turpitude. This belief was based upon the fact that the sealing order of the Circuit Court, pursuant to Section 943.059, Florida Statutes, allowed him to deny that those criminal charges, and the probation imposed, had ever occurred to any employing or licensing entity not specifically enumerated in that statute. The Department is not specifically enumerated in that statute as an agency to which the protection of the sealed record for the Petitioner does not apply. Thus, the Petitioner had no intent to defraud or misrepresent, in a material way, his entitlement to licensure by his answers on the application concerning the earlier Florida prosecution. In any event, in the free-form stage of this matter, before the first denial letter and the amended denial letter were filed and served on the Petitioner, the matter had been discussed with agency personnel and thus disclosed. On or about September 11, 1987, the Petitioner's license in the State of Minnesota was suspended for four weeks for purported improper "overlapping" and duplicating of medicare supplement coverages, in violation of Minnesota statutes. The Petitioner established that that was an inadvertent violation. It occurred due to an administrative and record-keeping error in his office. He acted immediately to correct the error, and the licensure authorities in Minnesota were satisfied with his efforts to correct the error. No member of the public suffered any pecuniary or other loss as a result, nor did the Petitioner gain any pecuniary or other benefit by that mistake. It was simply a clerical or administrative error due to inadvertent mistake. On or about September 28, 1989, the Petitioner was disciplined by the State of Wisconsin, Department of Insurance, and ordered to pay a fine based upon a settlement negotiation. This occurred because of his failure to disclose on his application for licensure as an "intermediary" in Wisconsin his previous Florida disciplinary action concerning the criminal matter. Indeed, the Petitioner did not disclose that to the State of Wisconsin. The reason he did not, as he established by unrefuted testimony, was that by the time he applied for licensure in Wisconsin, the circuit court's order sealing the record concerning the criminal matter had been entered. By his lay understanding of the law concerning sealing of his record, he was allowed to decline to disclose anything concerning that criminal matter or any matter based upon it. In his mind, this included no longer being under a requirement to disclose the Florida Department of Insurance disciplinary action which arose out of that criminal matter. His belief in this regard was further buttressed by the fact that the Department itself, upon his request, issued a "letter of clearance" for him to supply to the Wisconsin Department of Insurance. This document depicted that he was in good standing in terms of his licensure in the State of Florida (this was after the lapse of his two-year suspension period) and that there was no impediment, as far as Florida was concerned, to his licensure in the other jurisdiction. Under these circumstance, the Petitioner did not believe that he had a legal obligation to disclose to Wisconsin the matters concerning the Florida suspension. Upon learning of it, the State of Wisconsin, Department of Insurance, initiated a disciplinary action. Upon negotiation and stipulation, he was required to pay a $500.00 fine. When the Petitioner was asked about any suspensions of his licensure, on the application form at issue, and since the form and the question do not provide for any written explanation, he did not disclose the Wisconsin action leading to his fine. This is because, in the first place, it was not a suspension. Moreover, he still believed that, due to the circuit court's order sealing the record, since the Wisconsin action grew out of the Florida disciplinary and criminal matter, it was all related and he was not required to disclose it. Further, he did not believe that he had actually had a disciplinary action imposed in the State of Wisconsin. This is because the $500.00 fine, which he agreed to pay, was based upon a "stipulation and order." This document clearly recites upon its face (Petitioner's Exhibit 3) that the respondent (the Petitioner herein) denied the allegation and merely wanted to resolve the matter to avoid further litigation and expense. It states that the stipulation and order did not constitute the adjudication of any issue of fact or law and would not be admissible as such in any proceeding. Thus, because no determination of any guilt had been made regarding him by the State of Wisconsin and because the $500.00 fine he paid was merely the result of a settlement negotiation to prevent litigation, the Petitioner did not deem that he had been subjected to actual disciplinary action and certainly not suspension by the State of Wisconsin. Thus, it has not been established that he failed to reveal the Wisconsin matter on his application through any intent to misrepresent or defraud the Department in Florida, in a material way, in an attempt to gain licensure. This is particularly deemed to be the case because if he had been merely seeking to conceal what he actually believed was a disciplinary action occurring in Wisconsin, it would be illogical to assume that he would disclose the Minnesota action. He freely and voluntarily disclosed the Minnesota action, however, which he knew to be a brief suspension of his license. The Department, by the amended denial letter, is also seeking to deny licensure based upon his having pled nolo contendere to the criminal charge, as referenced above. This is so even though the Department, when it could have revoked his license for that same ground in 1985, chose the two-year suspension as an appropriate penalty for that criminal infraction, which resulted from a negotiated plea of convenience. In 1985, when the Final Order was entered, only two and one-half to three years had elapsed after the infraction is supposed to have occurred. The Department, however, without any significant time for rehabilitation from the effects on his license-worthiness from the purported criminal infraction, implicitly took the position that revocation of licensure was not appropriate and only a two-year impairment to licensure entitlement was warranted. Approximately a decade has now elapsed since the prior Florida discipline and approximately 12 to 13 years since the basis of that discipline (the criminal matter). The Petitioner has substantially shown his rehabilitation from the effects of that incident. The criminal matter itself did not involve any proof of actual guilt of immoral conduct but, rather, was a negotiated plea for the convenience of the Petitioner and the avoidance of the expense and anguish of trial. Moreover, the Petitioner has been a licensed agent in Minnesota, Florida, and Wisconsin for some 25 years and has never had any disciplinary altercation other than those mentioned in the evidence and this Recommended Order which arose out of that negotiated plea. The Minnesota and Wisconsin infractions were not significant in terms of reflecting adversely on the Petitioner's character, traits of honesty and trustworthiness, nor his competence, and qualifications to practice as an insurance agent. The Florida infraction in 1985 on its face is serious; however, the actual underlying facts do not reveal that the Petitioner was actually guilty of second-degree grand theft because of the findings concerning the imposition of probation through a "plea of convenience", upon advice of counsel and the court. The unrefuted testimony is that the Petitioner practiced insurance in a manner in which the public has never been harmed. No policyholder or insurer has suffered loss by any act or omission of the Petitioner, nor has the Petitioner benefited pecuniarily from any wrongful conduct. The above facts and circumstances, taken in their totality, show that the public in the State of Florida will not be harmed by licensure of the Petitioner. The total circumstances represented by the above Findings of Fact show that any adverse implication on his qualifications or worthiness for licensure has long since been rehabilitated by the passage of time and by the appropriate and proper conduct of his business as an insurance agent in the states where he has been licensed. In 25 years, he has continuously handled money and financial affairs of insurers and insureds with honesty and integrity. It has not been demonstrated that the Petitioner lacks fitness or trustworthiness to engage in the practice of insurance or that he is incompetent to engage therein. It has not been demonstrated that he made a misrepresentation or other fraudulent act in the obtaining of a license or appointment or in the initiation of an attempt to obtain a license or appointment.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered granting the Petitioner's application for licensure as a non-resident health and life agent. DONE AND ENTERED this 6th day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3363 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 6-14. Accepted. 15. Accepted, but not as to its entire purported legal import. Respondent's Proposed Findings of Fact 1-5. Accepted. 6. Accepted, but not for its entire purported material import. 7-9. Accepted, but not in themselves materially dispositive. COPIES FURNISHED: Thomas F. Woods, Esquire 1709-D Mahan Drive Tallahassee, Florida 32308 Allen R. Moayad, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner, Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue for determination is whether Respondent made or is accountable for misrepresentations that were made in the course of sales of automobile personal injury protection insurance policies to various consumers; thereby committing violations of Chapter 626, Florida Statutes, sufficient to subject Respondent's licensure as general lines insurance agent to disciplinary action.
Findings Of Fact Respondent is Lori Ann Thomas, currently licensed and eligible for licensure by Petitioner as a general lines insurance agent. Respondent has held such licensure status since March 12, 1985. At all times pertinent to these proceedings, Respondent was the general lines agent of record for Mr. Auto Insurance of Clearwater Inc. (Mr. Auto), located in Clearwater, Florida. On March 4, 1987, Kelly John O'Brien went to Mr. Auto after being notified by state officials that his failure to maintain required automobile insurance would result in the loss of his driver's license. He made a number of telephone calls to ascertain the amount of money necessary to purchase the minimum amount of insurance required by law at the least expensive price. Of the quotes O'Brien obtained, Respondent's price was the cheapest. O'Brien received a receipt from Respondent's agency in return for his payment of $82. The total premium charge for the personal injury protection (PIP) insurance purchased by him was $52. As part of his purchase of PIP coverage, O'Brien was charged $30 for membership in the Colonial Touring Association, a motor club providing towing coverage and accidental death insurance benefits to members. O'Brien was not asked whether he wanted to purchase a membership in the Colonial Touring Association and would, if he had known extra cost was involved, have rejected the membership. During the course of the insurance purchase at Respondent's agency, O'Brien signed and initialled an application form for PIP coverage with B.I.G. Underwriters, Inc., a subsidiary corporation of Bankers Insurance Group, Inc., which discloses the $52 premium cost for PIP coverage. In addition to signing and initialling the application form, O'Brien also signed and initialled a form supplied by Respondent indicating his rejection of bodily injury and property damage liability coverage; election of no-fault deductibility in the amount of $2,000; rejection of uninsured motorist coverage; rejection of basic property protection and collision insurance; and election to purchase the accidental death insurance benefit and motor club towing coverage package. Further, at the bottom of this form he signed a statement that he had read and understood all provisions of the form. It is found that O'Brien signed the form in order to acquire the PIP coverage which he sought to purchase and did not voluntarily purchase the accidental death benefit and motor club towing coverage. On May 28, 1987, Susan Weatherwax went to the offices of Mr. Auto to acquire the basic minimum required insurance coverage for registration of her automobile. A previous telephone survey by her indicated that Mr. Auto offered the cheapest price for the desired coverage. She was told by the salesman at the agency that the cost for PIP coverage would be $65. She received a receipt for this amount. While at Mr. Auto, Weatherwax signed and initialled an application form for PIP coverage with B.I.G. Underwriters, Inc., a subsidiary corporation of Bankers Insurance Group, Inc., which discloses the correct premium cost for the PIP coverage purchased by her to be $35. Weatherwax also signed and initialled a form supplied by Respondent indicating rejection by her of bodily injury and property damage liability coverage; election of no-fault deductibility in the amount of $2,000; rejection of uninsured motorist coverage; rejection of basic property protection and collision insurance; and election to purchase the accidental death insurance benefit and motor club towing coverage package. Further, at the bottom of this form she signed a statement that she had read and understood all provisions of the form. It is found that Weatherwax was charged $30 for membership in the Colonial Touring Association, the accidental death insurance benefit and motor club towing coverage package, which she did not request to purchase. She signed Respondent's form in order to acquire the PIP coverage which she desired and did not voluntarily purchase the accidental death benefit and motor club towing coverage. On April 22, 1987, Bruce Campbell went to the offices of Mr. Auto to purchase the legally required PIP minimum coverage necessary to get tags for his automobile. He paid $82 and received a receipt for that amount. He also signed and initialled an application form for PIP coverage with B.I.G. Underwriters, Inc., a subsidiary corporation of Bankers Insurance Group, Inc., which discloses the correct premium cost for the PIP coverage purchased to be $52. He also signed and initialled a form supplied by Respondent indicating rejection of bodily injury and property damage liability coverage; election of no-fault deductibility in the amount of $2,000; rejection of uninsured motorist coverage; rejection of basic property protection and collision insurance; and election to purchase the accidental death insurance benefit and motor club towing coverage package otherwise known as membership in the Colonial Touring Association. Further, at the bottom of this form he signed a statement that he had read and understood all provisions of the form. Campbell's testimony establishes that he purchased the motor club benefit package because he understood such purchase was required in order to receive the PIP coverage. It is found that he did not request to purchase the $30 membership in the Colonial Touring Association. He signed the form in order to acquire the PIP coverage which he desired and did not voluntarily purchase the accidental death benefit and motor club towing coverage. On a subsequent visit to Mr. Auto, Campbell purchased PIP coverage without the auto club membership, but only after specifically stating he did not want the coverage and waiting until the salesperson sought and received confirmation that such a sale could be made. Patrick Golik went to Mr. Auto on January 23, 1987, to purchase PIP and liability insurance on his automobile. His testimony fails to establish that he was sold membership in the Colonial Touring Association without his informed consent. He did, however, profess dissatisfaction with the membership's benefits. On May 5, 1987, Richard Davis went to Mr. Auto to buy just the basic amount of required insurance for a second automobile to "make it legal." He was informed that the premium cost for PIP coverage would be $65. He paid this amount and received a receipt. He also signed and initialled an application form for PIP coverage with B.I.G. Underwriters, Inc., a subsidiary corporation of Bankers Insurance Group, Inc., which discloses the correct premium cost for the PIP coverage purchased to be $35. He also signed and initialled a form supplied by Respondent indicating rejection of bodily injury and property damage liability coverage; election of no-fault deductibility in the amount of $2,000; rejection of uninsured motorist coverage; rejection of basic property protection and collision insurance; and election to purchase the accidental death insurance benefit and motor club towing coverage package otherwise known as membership in the Colonial Touring Association. Further, at the bottom of this form he signed a statement that he had read and understood all provisions of the form. Davis' testimony establishes that he did not request to purchase the $30 membership in the Colonial Touring Association. He signed the form in order to acquire the PIP coverage which he desired and did not voluntarily purchase the accidental death benefit and motor club towing coverage. On May 2, 1987, Jeri Exner went to Mr. Auto to acquire PIP coverage. He was told the premium would be $65. He paid this amount and received a receipt. He also signed and initialled an application form for PIP coverage with B.I.G. Underwriters, Inc., a subsidiary corporation of Bankers Insurance Group, Inc., which discloses the correct premium cost for the PIP coverage purchased to be $35. He also signed and initialled a form supplied by Respondent indicating rejection of bodily injury and property damage liability coverage; election of no-fault deductibility in the amount of $2,000; rejection of uninsured motorist coverage; rejection of basic property protection and collision insurance; and election to purchase the accidental death insurance benefit and motor club towing coverage package otherwise known as membership in the Colonial Touring Association. Further, at the bottom of this form he signed a statement that he had read and understood all provisions of the form. Exner's testimony establishes that he did not request to purchase the $30 membership in the Colonial Touring Association. He signed the form, but did not read it, in order to acquire the PIP coverage which he desired and did not voluntarily purchase the accidental death benefit and motor club towing coverage. The proof establishes that a general business practice prevailed at Mr. Auto, a corporation duly organized under the laws of the State of Florida, whereby consumers requesting to purchase PIP insurance were quoted a price including a membership in the Colonial Touring Association. Such memberships, while including a life insurance benefit, are not insurance policies.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's license and eligibility for licensure as an insurance agent for a period of one year. DONE AND ENTERED this 19th day of July, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 19th day of July, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1-15. Addressed. 16.-20. Accepted in part, but rejected as to the deception implied in proposed finding 19 on the basis that a review of Golik's testimony shows he recalled being questioned about the purchase. He was dissatisfied with the company. 21.-32. Addressed. Respondent's Proposed Findings. Respondent's proposed findings of fact consisted of two unnumbered paragraphs. The first paragraph is addressed in substance. The second paragraph is rejected as not supported by the weight of the evidence. COPIES FURNISHED: Robert V. Elias, Esq. Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Thomas F. Woods, Esq. 1709-D Mahan Drive Tallahassee, FL 32308 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol Tallahassee, FL 32399-0300 Don Dowdell, Esq. The Capitol, Plaza Level Tallahassee, FL 32399-0300
