The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Daniel Bruce Caughey has been licensed by petitioner as an insurance agent at least since 1981. He began working for Caughey Insurance Agency, Inc. in 1971 as a file clerk. Once he was licensed, he worked as a salesman. In 1977, he assumed the executive vice-presidency of the agency, a position he still holds. Until the middle of March, 1983, respondent'- father, William Edward Caughey, managed the agency. He continues to own all 1,000 shares the corporation has issued, although he has not written a policy since he turned management of the agency over to the respondent and his brother Randy in 1983. In 1982 and thereafter until Jordan Roberts and Company, Inc. (JORO), a multi-line general agency, stopped underwriting automobile insurance, Caughey Insurance Agency, Inc. brokered automobile insurance through JORO. When an account current bookkeeping dispute arose between Caughey Insurance Agency, Inc. and JORO, William Edward Caughey retained an accounting firm, Sizemore. On Sizemore's advice, he rejected JORO's claim for more than $20,900. On October 21, 1983, a JORO representative told Daniel Bruce Caughey that JORO would no longer deal with Caughey Insurance Agency, Inc. unless he signed an "Individual Guarantee Agreement," personally guaranteeing the insurance agency's corporate indebtedness; and executed a promissory note in JORO's favor in the amount of $16,941. Respondent executed the documents. On December 3, 1986, JORO brought suit against the corporation and respondent personally. No. 86-21454 (Fla. 13th Cir.). On August 13, 1987, the court entered judgment against both defendants in the amount of $6,595.94. Jordan Roberts & Co. v. Cauqhey, No. 86-21454 (Fla. 13th Cir.; Aug. 13, 1987). Neither respondent nor the agency has paid the judgment. With the possible exception of filing the complaint that eventuated in the present proceedings, JORO has made no effort to collect. In Count I, JORO's complaint alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by ?CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William E. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. At hearing, both Daniel Bruce Caughey and William Edward Caughey testified that neither had withheld premiums owed JORO, and this testimony was not controverted.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 2nd day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 2nd day of April, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8 and 9 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, respondent became an officer after the brokerage agreement had been executed. With respect to petitioner's proposed finding of fact No. 7, the judgment could also be based on the promissory note. With respect to petitioner's proposed finding of fact No. 6, respondent did not sign as an individual guarantor. Respondent's proposed findings of fact Nos. 1 through 10 and 12 through 18 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, evidence respondent himself adduced showed that the judgment had not been satisfied. COPIES FURNISHED: Robert V. Elias, Esquire 412 Larson Building Tallahassee, FL 32399-0300 Bruce A. McDonald, Esquire McDonald, Fleming & Moorehead 700 South Palafox Street Suite 3-C Pensacola, FL 32501 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, FL 32399-0300
Findings Of Fact This cause originated in a disciplinary action resulting from an administrative complaint filed by the Department of Professional Regulation, Division of Real Estate against the Petitioners herein, Malcolm Lewis Hardy and Aquatic Realty, Inc. The Petitioners herein were the Respondents in the licensure disciplinary proceeding. That proceeding was resolved in their favor by the Recommended Order of the Hearing Officer and by the Final Order filed April 15, 1988 by the Department of Professional Regulation. They have accordingly filed a request for attorney's fees and costs on the ground that the prosecution involved in the underlying case was not "substantially justified." The cause came on for a brief hearing. The parties elected to dispense with calling witnesses at the hearing because they entered into a factual stipulation whereby all germane facts were placed of record. It was thus established that Petitioners Malcolm Lewis Hardy and Aquatic Realty, Inc. (hereafter Hardy) were the Respondents in a licensure disciplinary action brought against them by the above-named Respondent. That disciplinary action was resolved by Final Order filed April 15, 1988 by the Department of Professional Regulation. The Respondents in that case, the Petitioners herein, were totally absolved of any wrongdoing with regard to the charges in the administrative complaint in that proceeding. A copy of that Final Order was mailed by the agency to "Diane Cleavinger, Esquire, 300 East 15th Street, Panama City, Florida 32405." Ms. Jan Nelson, a secretary at that address, and employed by Ms. Cleavinger's former law firm, received a copy of that order and executed the return receipt appearing on the envelope on April 18, 1988. Ms. Nelson was not Ms. Cleavinger's secretary, but rather the secretary of Ms. Fitzpatrick, one of Ms. Cleavinger's former law partners. In any event, Ms. Nelson executed the return receipt on April 18, 1988, but Ms. Cleavinger never received the Final Order nor notification of its filing or receipt by Ms. Nelson. Mr. Hardy never became aware of or received a copy of the Final Order either, until the agency sent another copy to him on September 12, 1988. The affidavit and request for attorney's fees was filed within sixty days of that date. Ms. Cleavinger had left her law firm on January 1, 1988 to become a Hearing Officer with the Division of Administrative Hearings. Mr. Hardy only learned of the Order when he made a direct contact with the Department of Professional Regulation and they learned that he had not received the Final Order. It was thus mailed to him on September 12, 1988 and received on September 14, 1988. That Order dismissed all claims against Hardy and Aquatic Realty, Inc. and thus those parties are in fact "prevailing, small business parties," within the meaning of Section 57.111, Florida Statutes. It was stipulated at hearing, as well, that these Petitioners are small business, prevailing parties and that they incurred attorney's fees in the amount of $1,642.04 for services rendered by Ms. Cleavinger when she represented them in the underlying case-in-chief and that costs amount to $333.71. Additionally, Mr. Hardy further incurred attorney's fees and costs in the amount of $500 in connection with the pursuit of this fee claim by attorney Whitton. It was stipulated that that amount is reasonable. Additionally, the Department accepted its burden of establishing that its action was "substantially justified," within the meaning of Section 57.111, Florida Statutes, and have stipulated that they have not done so. Thus the only issue for resolution concerns whether the claim of Hardy was time-barred.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent, Fredric Stuart Zelanka, has been licensed by Petitioner, Department of Financial Services, as an insurance agent, holding license number A293609. Jerrod Keith Zelanka is Respondent's son. Jerrod Keith Zelanka also uses the name Rod Keith. Using one name or the other, Jerrod Keith Zelanka was the owner, president, and director of American Professional Insurance Services, Inc., also known as AmPro Insurance. Respondent's insurance agency had been Accredited Insurance Group, Inc. Due to his health problems in 2000, Respondent turned his insurance business over to his son and thereafter was employed by AmPro. On September 11, 2003, the Department entered a Final Order suspending Jerrod Keith Zelanka's insurance license and eligibility for licensure for a period of nine months. Respondent knew that Jerrod Keith Zelanka's insurance license and eligibility for licensure had been suspended, not only because of their relationship but also because the administrative proceeding which resulted in Jerrod Keith Zelanka's suspension had been consolidated with a disciplinary proceeding against Respondent. Respondent received a three- month suspension as a result of that proceeding. Due to a stay of Jerrod Keith Zelanka's suspension entered by the appellate court, which was terminated after the court affirmed the Department's Final Order in that case, his suspension did not begin until July 16, 2004, and ended April 15, 2005. Both the Final Order suspending Jerrod Keith Zelanka's license and the Final Order suspending Respondent's license advised them that, during their periods of suspension, they were prohibited from engaging in or attempting to engage in any transaction or business for which a license is required or to directly or indirectly own, control, or be employed in any manner by an insurance agent or agency. In March 2005, Jerrod Keith Zelanka requested that the Department reinstate his suspended insurance license, effective April 16, 2005. On April 19, 2005, the Department issued its Notice of Denial, denying reinstatement. Jerrod Keith Zelanka requested an administrative hearing on that denial. A hearing was held, and on February 23, 2006, the Department entered a Final Order denying his application for reinstatement of his suspended license. Accordingly, Jerrod Keith Zelanka has not been a licensed insurance agent since July 16, 2004. On October 13, 2005, Charmaine Davis-Matthei called AmPro, which was located very close to her office, during her lunch break to obtain a quote to insure her two vehicles. Since the quote she was given was favorable, she went there when she finished working at 5:00 p.m., that day. The only person at AmPro's office during the time she was there was Jerrod Keith Zelanka, who identified himself as "Rod" and proceeded to wait on her. He reviewed her necessary information, explained different options to her, explained the coverage being purchased, typed the information into the computer, created her policy, printed it and had her sign it, obtained the down payment on the policy from her, and gave her a receipt for her premium payment. On October 21, 2005, after purchasing a new vehicle, Davis-Matthei returned to AmPro to change her auto insurance policy. On that date, Respondent waited on her, made the required changes, and gave her a receipt for the additional money she was required to pay for the change in her policy. The applications for coverage dated October 13 and October 21, 2007, both carry Respondent's name and license number as the insurance agent binding the coverage. Both carry an unreadable but dissimilar signature. Since Respondent was not present at AmPro on October 13, 2005, during the Davis-Matthei transaction and only Jerrod Keith Zelanka was, there are few possible conclusions. One is that Respondent allowed Jerrod to sign Respondent's name when Jerrod engaged in the business of insurance. Another is that Respondent signed his name although he was not present when Jerrod sold insurance to Davis-Matthei. Since the record in this case suggests that Respondent was the only licensed agent at AmPro at the time in question, it can only be concluded that he knew that Jerrod was engaging in the unlicensed transaction of insurance business at AmPro. In addition to the 2003 three-month suspension imposed upon Respondent briefly described above, the Department imposed a $750 administrative fine and one-year probation against Respondent pursuant to a Consent Order entered February 19, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Sections 626.611(7) and 626.621(12), Florida Statutes; finding Respondent not guilty of violating Section 626.611(8), Florida Statutes; and suspending Respondent's license and eligibility for licensure for a period of six months. DONE AND ENTERED this 24th day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 24th day of May, 2007. COPIES FURNISHED: Alex Sink, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Robert Alan Fox, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Fredric Zelanka 5099 Monterey Lane Delray Beach, Florida 33484
The Issue The parties stipulated that but for the grounds stated in Respondent's letter of denial, Petitioner was qualified for certification as an independent direct service provider. The issues are whether Petitioner failed to consistently follow through on arranging support coordination services for clients of the developmental disabilities program, and whether this constitutes ground of denial under unadopted rules of Respondent.
Findings Of Fact Petitioner, Susan Dos Santos, applied for certification as in independent direct service provider to persons with developmental disabilities. Respondent, Department of Children and Family Services, is authorized pursuant to Chapter 393, Florida Statutes, to regulate the provision of services to the developmentally disabled and to certify persons who are direct service providers and independent support coordinators. Respondent and Petitioner stipulated at hearing that, except for the reasons set forth in Respondent's letter denying Petitioner's certification, Petitioner was qualified for certification. The grounds stated in the letter of denial were that Petitioner consistently failed to follow through on arranging support coordination services for her clients while employed as a treating provider. Evidence was presented that the records of Petitioner's work for her employer with developmentally disabled persons were reviewed pursuant to an unadopted rule of Respondent and Petitioner's work performance failed to meet the criterion established by an unadopted rule of Respondent for completeness and thoroughness. It was on this basis that Respondent denied the application of Petitioner. Petitioner testified in her own behalf. She did not know that her work was subject to review for purposes of certification and did not know about the standards of review. None of her clients ever failed to have services provided, although she did refuse to meet with one client who was assigned to another counselor with whom she had had a prior physical altercation. No information reflecting adversely on the good character of Petitioner was introduced.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent certify Petitioner. DONE AND ENTERED this 17th day of September, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 17th day of September, 2002. COPIES FURNISHED: Susan Dos Santos 2472 Glade Spring Drive Jacksonville, Florida 32246 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the "voluntary surrender" of the Respondent's license as an insurance agent to the Department, and his statement that he will not seek to renew that license on or before the next expiration period, while an administrative complaint is pending before the Division of Administrative Hearings deprives the Division and the Department of jurisdiction from seeking discipline of that license under the provisions of Chapters 624 and 626, Florida Statutes.
Conclusions The Division of Administrative Hearings, has jurisdiction over the subject matter of and the parties to this proceeding. Chapters 624, 626, and Section 120.57(1), Florida Statutes. By the terms of Section 120.57(1), there are only three grounds upon which the Hearing Officer may relinquish jurisdiction: Determination that no substantial interest is affected by the proposed agency action; Determination that the proceeding does not involve a disputed issue of material fact; or Determination that the affected parties have waived their rights to a proceeding. In the instant case, it is undisputed that substantial interest of the Respondent will be affected by the proposed agency action. On December 10, 1993, Respondent voluntarily surrendered to the Department his insurance licenses and eligibility for appointment under the Florida Insurance Code, and simultaneously acknowledged that he does not intend to renew said licenses. By surrendering his insurance licenses to the Department, Respondent has evinced his intention not to contest the charges contained in the Second Amended Administrative Complaint. As such the factual allegations of the Complaint may be taken as true. Respondent asserts that he is unable to defend against the allegations of the Second Amended Administrative Complaint due to his assertion that he and his "essential witnesses" are targets of a federal criminal investigation. This argument is misplaced. See: Patchett v. Commission on Ethics, 18 FLW D2407 (Fla. 1st DCA 1993). Respondent further alleged that he does dispute the factual allegations in the Complaint but is financially unable to defend himself. However, Respondent may not hide from the consequences of his actions behind the surrender of his licenses. Boedy v. Department of Professional Regulation, 433 So.2d 544 at 544 (Fla. 1st DCA 1983). In Boedy, the Court adopted the rationale stated in the Final Order of the Board of Medical Examiners stating "to suggest that physicians should be able to immunize themselves from prosecution by simply going inactive suggests a form of self-regulation of the medical profession which was obviously rejected by the Legislature when it chose to enact Chapter 458, Florida Statutes.: Id. Likewise, it would be contrary to the Legislative mandates of Chapter 626, Florida Statutes and specifically the provisions of Section 626.641, Florida Statutes and specifically the provisions of Section 626.641, Florida Statutes to allow a licensee to avert prosecution for violations of the Florida Insurance Code by simply "surrendering" his license. This same line of reasoning was repeated by the Court in Couch v. Turlington, 465 So.2d 557 (Fla. 1st DCA 1985). The court in the Couch asserts that inherent in the regulatory agency's power to establish the terms of issuance of a certificate "is the implied power to govern the terms and conditions under which a certificate may be altered by the holder thereof." Id. at 559. Extending this rationale to the instant case, the Department seeks the imposition of a revocation pursuant to Section 626.641, Florida Statutes, and it is not for Respondent to set the conditions of his surrender as a means of avoiding the sanction. By surrendering his license to the Department Respondent has indicated his intent not to contest the charges contained in the Second Amended Complaint. Therefore, Respondent has waived his right to a formal administrative proceeding. The surrender has the same effect as the withdrawal of Respondent's request for a administrative proceeding and places him in the same position as if he had not responded to the Administrative Complaint within the twenty-one days as required pursuant to Rule 4-121.084, Florida Administrative Code. Rule 4-121.084(4), Florida Administrative Rules, states that failure to timely request a hearing "shall constitute a waiver of the licensee's right to such a hearing, and the Department is authorized to enter a final order imposing a penalty or to take other action without further proceeding." It is therefore appropriate for the Division to relinquish jurisdiction to the Department of Insurance to conduct informal proceedings, pursuant to Section 120.57(2), Florida Statutes or for entry of a Final Order. Rule 60Q-2.033(1), Florida Administrative Code. In view of the foregoing, it is ORDERED: Jurisdiction of this cause is relinquished to the Department of Insurance for the entry of a Final Order or other proceedings as deemed appropriate. The file of the Division of Administrative Hearings in this case is closed. DONE AND ORDERED this 2nd day of February, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 2nd day of February, 1994. COPIES FURNISHED: Gary R. Dorst, Esquire J. Cheney Mason, Esquire Barnet Bank Center 390 North Orange Avenue, Suite 2100 Orlando, Florida 32801 John R. Dunphy, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact On approximately March 4, 1978 the Respondent, Cherry Majors, entered into a contract for the sale of two lots in Escambia County, Florida with the complaining witness, Edward Simmons. Under the terms of the contract of sale the Respondent agreed to provide a policy of title insurance, a warranty deed, and to pay all closing costs. The closing of the subject sale was held March 7, 1978 at which time the complaining witness, Edward Simmons, gave the Respondent $6,500.00 cash which remained to be paid pursuant to the contract of sale. She, in turn, provided him with a receipt. The deed was duly executed by the Respondent, recorded by her on March 23, 1970, and placed in the hands of the title company. The property was sold to Edward Simmons subject to a judgment against the Respondent seller in the amount of $2,414.48. That judgment was satisfied, however, on March 28, 1970. After repeated unsuccessful attempts by the complaining witness to contact the Respondent regarding the deed and title policy, the complaining witness ultimately filed a complaint with the Florida Real Estate Commission on December 29, 1978. The title insurance company was paid its premium of $100.00 for the subject policy of title insurance on January 23, 1979 by the Respondent and, ultimately on February 13, 1979, the title insurance company forwarded the owner's title insurance policy and the original warranty deed to Mr. Simmons. The warranty deed was held by the title insurance company for approximately ten months after the closing of the transaction, for the reason that the title insurance premium had not yet been paid by the Respondent. The testimony of the title insurance company's representative establishes, however, that the title policy binder was issued March 6, 978, and the actual title policy was issued by the company March 23, 1978. Thus, the warranty deed was recorded in the official Records of Escambia County shortly after the subject closing, and the title policy was issued shortly thereafter in the name of the new owner of the property, Mr. Simmons. Evidence of title in the name of Mr. Simmons was established in the appropriate public records soon after the closing. Mr. Simmons, however, did not actually take physical possession of his deed for some ten months due to the retention of it by the title insurance company for the above-mentioned reason. The Respondent executed the deed to Mr. Simmons and obtained its recording, establishing fee simple ownership of the subject property by Mr. Simmons at that point, although she then returned the deed and title policy to the title insurance company for holding until the title insurance premium was paid by the Respondent, and until the Respondent recorded satisfaction of the above- referenced judgment. The record does not reveal when the satisfaction of the judgment was recorded although the satisfaction itself was dated March 28, 1978, shortly after the closing. Sometime prior to February 13, 1979, however, the title insurance premium was paid and the satisfaction of judgment recorded, because on that date the owner's title insurance policy and the warranty deed were finally transferred to Mr. Simmons.
Recommendation It is, therefore, recommended that the Respondent be found guilty of culpable negligence pursuant to Section 475.25(1)(b), Florida Statutes (1979), and guilty of a violation of Section 475.25(1)(d), Florida Statutes (1979), for failure to deliver the subject documents, and fined the sum of $250.00, of which $150.00 should be suspended and held in abeyance, but which such $150.00 portion of the fine will become immediately due and owing should the Respondent be convicted of any similar violations under the statutory authority above-cited at any time within a period of five (5) years hence. DONE and ENTERED this 26th day of November, 1980, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Ms. Cherry Majors 223 Topaz Drive Pensacola, Florida and 1925 North "P" Street Pensacola, Florida 32505 Nancy Kelly Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
