Findings Of Fact On or about May 19, 1989, Viola DePeugh filed a complaint with the Department of Insurance, Bureau of Consumer Services, stating that the Petitioner, a licensed health and accident insurance agent for National States Insurance Company, visited the DePeugh home on or about May 4, 1989, and: tried to intimidate her and her husband; stated that the insurance agent who had sold them their Old Southern policy was "a crook and a liar" and not licensed by the Department; and stated that Old Southern had gone bankrupt and was about to go bankrupt again. The Respondent investigated the DePeugh complaint to the extent of interviewing the DePeughs and obtaining sworn written statements from them. Viola DePeugh's sworn written statement reiterated her May 19, 1989, complaint to the Department. She stated that the Petitioner had reviewed the DePeughs' Old Southern insurance policy, had stated that Old Southern had been bankrupt once before and was going bankrupt again, and had stated that her Old Southern agent was a "crook." Her husband, Forrest DePeugh, gave a sworn written statement that he had been present at the time of the Petitioner's statements to his wife and that he could verify his wife's statements. Besides the interviews with the DePeughs and their sworn written statements, the Department did not further investigate the DePeugh complaint. On or about September 21, 1989, the Respondent filed an Administrative Complaint charging the Petitioner with violations of parts of Chapter 626, Florida Statutes, based on the DePeugh allegations. The Administrative Complaint charges essentially that, in order to induce the DePeughs to change from their Old Southern policy to a policy the Petitioner was selling, the Petitioner falsely represented to the DePeughs that Old Southern Insurance Company had been in bankruptcy and was about to go bankrupt again and that the DePeughs' insurance agent was "a crook." The Administrative Complaint was referred to the Division of Administrative Hearings for a formal administrative proceeding and was assigned Case No. 89-5712. The Petitioner's defense to the Administrative Complaint was that he did not make the statements attributed to him, not that the statements were true. The Recommended Order in Case No. 89-5712 found that the Department did not prove by clear and convincing evidence that the DePeugh allegations were true. A Final Order dismissing the Administrative Complaint was entered on or about June 21, 1990. At the time of its filing on or about September 21, 1989, the Administrative Complaint against the Petitioner had a reasonable basis in law and in fact. If the DePeughs testified in accordance with Viola DePeugh's written complaint and sworn written statement, their testimony would have been legally sufficient to sustain the charges in the Administrative Complaint notwithstanding the Petitioner's denial of the charges. It was simply a case of the DePeughs' word against the Petitioner's word. There were no other witnesses, and there was no reason for the Respondent to think that further investigation would have uncovered extrinsic evidence that would support the Petitioner's denial of the charges or impeach the credibility of the DePeughs. Under these circumstances, it was not unreasonable for the Respondent to file the Administrative Complaint against the Petitioner.
Findings Of Fact At all times pertinent to the allegations discussed herein, Respondent, FOREST BRUCE DEVOR, was licensed as a General Lines Agent, in the State of Florida, by the State Insurance Commissioner and Treasurer. At all times pertinent to the allegations herein, Petitioner was the general lines agent responsible at "Cash Register" Auto Insurance Agency. During the period in question, his employees included Evelyn E. Phillips and Lisa Joy Pritchard. The agency was located at 5228 South Orange Avenue, Orlando, Florida. On March 17, 1982, Donnalyn Raulerson purchased her auto insurance from a lady working at Respondent's agency during her lunch hour. She specifically asked the lady waiting on her for the minimum coverage required for her to get a license tag for her car and was quoted a fee of $52. At the time of application, she was given three sheets of paper to sign. One was for her to decline liability insurance, the second was for the minimum Personal Injury Protection (PIP) coverage, and the third was for her to denote beneficiary under the Accidental Death and Dismemberment (AD&D) coverage. She was told by the sales lady to list a beneficiary on one form, but was not told it was coverage she did not need to get her tag or that it would result in her paying more in premiums than she really had to pay for the required coverage. Had she known what she was getting--that the AD&D was not required--she would not have bought it, as she did not want it. When she was at the counter signing up, the lady showed her a Rejection of Liability Form which, at the bottom, has a section which acknowledges the application for AD&D coverage and the understanding that the additional charge is included in the down payment. The form does not, however, provide any information that AD&D coverage is not required to get a license tag; and when she was there, the saleslady showed it to her and said, "Sign here, here, here and here." Ms. Raulerson did not realize the AD&D was an added cost and assumed it was required since she had asked only for what she needed and this was given to her. She did not receive her policy until several months later. On March 17, 1982, she signed the application for Travel/Accident Benefits including AD&D coverage from American Travelers Association. She was to get $3,000 AD&D coverage, for which the premium was reflected as $30, although she contends that when she signed up and got her copy of the application form, the fee was not filled in. This is most likely true because all other application forms, filled out by the other purchasers whose situations are considered here, show the fee portion left blank. According to Dale C. Hranham, President of American Travelers Association, the commission paid to the general agent on an AD&D policy is 80 percent of the fee collected. Ms. Raulerson paid the fee for the coverage (including the AD&D) by check on March 17, 1982. She was given, at that time, receipt #6, which reflected that her payment of $53.30 ($52 plus $1.30) was for $8,000 deductible one year PIP. No mention was made, on this receipt or on any of the receipts given to the other customers considered in this action, that the amounts paid by them included AD&D coverage. Each receipt refers to PIP alone (Raulerson, James and Powers) , or PIP and liability coverage (Groover, Chapman and Senn). Respondent's explanation for this absence that the receipt only listed the major coverage is not persuasive. Coupling this omission with the failure to show the fee on the AD&D application form and the fact, as testified to by all customers involved here, that they did not receive their policies until after Petitioner's investigator came into the picture creates a conclusive set of circumstances indicating that Respondent was concealing the fact that AD&D coverage was being supplied at a hidden cost. Further, although Ms. Raulerson paid in full on March 17, 1982, her application for AD&D was not received by American Travelers until May 10, 1982. Earl R. Groover, a purchasing director for a local hotel, purchased his insurance from a lady at Respondent's agency on April 19, 1982. He had called several places to get rate quotes and Respondent was the lowest, so he went there. When he applied, the down payment was $30 more than that figure quoted him on the phone. That $30 is the fee for the $3,000 AD&D coverage he purchased. AD&D premiums cannot be financed as can the premiums for other types of coverage, so the $30 fee for that had to be paid at the time of down payment and application. When Groover asked why he was being charged the extra $30, he was told by Respondent's employee the charge was for an additional policy he needed without any question as to how much of that coverage he wanted. At the time, it was late in the day and everyone, including the employees, were in a hurry to go. The papers Groover signed were referred to Respondent to check. Since he was in a hurry, and so were the others, Mr. Groover signed where directed (including the rejection of liability and the acknowledgment of AD&D coverage). He did not read the statement regarding AD&D, but signed it anyway since he felt the answers he got from the agency people were honest. He accepted as true their statement that he had to accept the AD&D coverage in order to get the coverage he really wanted, which included basic liability coverage, PIP and coverage for damage to his car. David B. James dealt directly with Respondent on May 10, 1982, when he wanted to buy only PIP coverage so he could get his auto tag. He paid the $40 premium asked of him and found out he had actually purchased AD&D coverage only when Petitioner's investigator told him, somewhat later. When he asked why he was being required to designate a beneficiary, he was told it was a part of his PIP coverage and came as a package. He was willing to have that coverage, but did not want or need life insurance, as he had that kind of coverage through the company he works for. Mr. James admits he was not rushed at the time. However, though he was told he could get liability insurance and uninsured motorist coverage; though PIP coverage was explained to him; though he was given the opportunity to read the forms (all were given to him at the same time); he was never asked if he wanted AD&D coverage or how much he wanted, and he was led to believe he had to have it in order to get his required coverage. Wesley C. Lantz was charged $50 for $5,000 worth of AD&D when he purchased his coverage from Evelyn Phillips at Respondent's agency on January 15, 1982. He told her he wanted liability, full coverage comprehensive and collision insurance. He was sold what he requested, which was financed at an annual percentage rate of 39.42 percent after a down payment of $117, and was also charged $50 more for AD&D coverage in the amount of $5,000, which he did not ask for or want. His total down payment was $167, and the receipt he was given for that amount does not reflect any reference to AD&D. Lantz first found out about his AD&D coverage from Petitioner's investigator. Until that time, he had no idea he had purchased that coverage, even though he was given the disclaimer form to sign (he contends there was no reference to AD&D on it when he signed it), and even though he signed the AD&D application (he contends it was not represented to him as a separate policy). When he signed the documents, he was told that what he was given was the coverage plan. He was asked about naming a beneficiary and did so, but did not know he was buying a separate policy. He would not have bought it had he known because he has full life and AD&D through work. Donna Powers went to Respondent's agency because her boyfriend bought his insurance there. On January 18, 1982, she dealt with a lady at Respondent's office to whom she said she wanted PIP coverage, for which she was quoted a price of around $50. AD&D coverage was not explained to her, nor was she asked how much of that coverage she wanted. She was only asked who she wanted to be her beneficiary, but did not know why. Liability coverage was explained to her, and she rejected it. Uninsured motorist coverage was explained, and she rejected that as well. She signed the bottom section of that same disclaimer sheet relating to AD&D, but that was not explained to her. Though her coverage included PIP and $2,300 AD&D, and the total premium was $37 ($14 for the PIP and $23 for the AD&D), the receipt she received from Respondent reflected only the PIP. Brenda Senn also purchased her insurance directly from Respondent on April 29, 1982. She was accompanied by her husband, Mark, who heard the entire transaction and who spoke for her. He told Respondent Brenda wanted PIP and liability insurance. They were separating at the time, and he wanted to be sure she had coverage. They were not rushed at the time of purchase and had time to read what they were signing. When he questioned the need to identify a beneficiary, he was told of the AD&D coverage, but it was not represented to be there at no additional charge. The testimony of Mr. Branham indicates the general consensus of opinion in the insurance business that if a person fills out an application and signs it, that person knows what he or she is getting. Mr. Branham states that would be true if business were conducted in a vacuum. However, he feels the seller is obligated to make the buyer aware of what is being purchased, and that was not the case, here. John A. Hoback, an investigator with Petitioner, conducted an investigation of Respondent's agency, Cash Register Auto Insurance Agency, in early 1982 during which he examined, in Respondent's office, between 30 and 35 files and found that all included AD&D sales. When he subsequently talked with the customers whose files he had examined, he found they either did not know they had purchased AD&D coverage or, if they did know, thought they had to have that coverage. Some of the people to whom he talked had not received their policies from Respondent or the insurance companies he represented. Mr. Hoback does not know if any of the people whom he talked with or who testified complained to the insurance Commissioner's office. In his opinion, the signature of the purchaser/insured on an application for a particular type of insurance coverage shows that the individual purchased that coverage; it does not necessarily signify that the individual knew what he or she was buying or that they had the intent to buy that particular coverage. Having been accepted by Respondent as an expert in the field of casualty insurance, Mr. Hoback described an unethical sales practice known within the insurance industry as "sliding." in this practice, when a customer comes in and asks for a particular coverage, the agent includes AD&D coverage or a motor club membership as an additional coverage with out the customer's knowledge or consent. Generally, all forms incident to a customer's purchase are completed in advance, placed in a stack, and only the signature blocks on each are left open. The customer is then offered the stack to sign and usually does so without reading the documents. The fact that the customer may sign a disclaimer form is not significant unless there can be shown that the agent gave the customer a full explanation of the form and its effect before signature. While Mr. Hoback cannot say that most agencies utilize the practice of "sliding," most substandard agencies, also known as "bucket shops" do. Mr. Hoback admits that under the existing commission scale, it would be very hard for an agent to make a living selling PIP coverage alone unless the agent had a large volume of sales. The commission on PIP policies is very small. Deputy Insurance Commissioner James R. Hinson, testifying for Respondent, established that it is not illegal to sell PIP and AD&D coverage together as a package if the customer knows what it is he or she is buying knows it is optional and agrees to buy it. The use of a disclaimer is a good idea providing it is fully explained to the customer before signature. It has been Mr. Hinson's experience over many years in the insurance business that the majority of customers who purchase insurance of all types do not understand what it is they are purchasing. The same thing applies to the signing of disclaimers. In his opinion, absent a clear showing of full explanation, the customer's signature on an application form and a disclaimer is evidence only that he or she saw and signed the document. Any good agent can be expected to do the best for his customer by giving the customer the most suitable coverage. Consistent with that is that the agent should sell coverage only if the customer knows what he is getting and gets what he wants. Evelyn E. Phillips, who was employed by Respondent in his agency during the period in question, outlined what she recalls as the procedures followed in the agency regarding sales. When a customer came in, she or the other clerks would quote a price for the desired coverage and go over the quote sheet with the customer. It was her practice, she says, to tell the customer, with regard to AD&D coverage, what he is getting and that it is not required for license tags. While she is preparing the forms, the disclaimer sheet, which contains reference to AD&D coverage at the bottom, is left with the customer to peruse after she goes over it with the customer to tell him what he is getting and what he is rejecting. Sometimes, according to Ms. Phillips, she goes over it with the customer two or three times. When she is through, she feels, the customer knows what he or she is getting. This testimony was countered substantially by that of another former employee, Lisa Joy Pritchard, who also worked for Respondent during the period in question. Ms. Pritchard's recollection of the procedures followed varies greatly from that of Ms. Phillips and tracks more closely with that of the various customers who testified. For example, Ms. Pritchard indicates that if a customer requested PIP, she would check the PIP price and then add in, automatically, the cost of AD&D coverage, quoting a combined price to the customer. She did not explain to the customer he was being charged extra money for the AD&D coverage. If the customer inquired, she would try to explain and would then refer the customer to Ms. Phillips or Respondent. She was instructed to do this by Respondent. She was also instructed to tell the customers to read everything they were signing, but many of them would sign without reading. On balance, it is clear that the weight of the evidence indicates that Respondent was operating an agency where individuals were often sold coverage they did not need or want, that full disclosure was not made, that explanations given were insufficient to advise a customer of what he or she needed to know to make an informed decision as to coverage, and that Respondent knew of and directed that practice. Notwithstanding that, Respondent has the loyalty and admiration of Ms. Phillips, who considers him to be a Christian with a good reputation for honesty and fair dealing in business and the community. These sentiments and others similar to them were stated by friends and fellow church members. Mr. Sievert has known Respondent since 1975 or 1976 as an honest, friendly, straightforward individual who would not be deceptive and who knows how to get the job done. Mr. Bickell knows Respondent's goal is to develop an honest, upright character. Respondent would not intentionally do anything against the law to friend or stranger and, if he did, would go back and correct it. Mr. Harold, who has known Respondent for about ten years, considers him to be upright, straightforward and always honest. He has been involved with him in many church activities and is conscientious in doing what he believes to be right. Respondent feels quite certain that when customers left his office, they knew they were getting AD&D coverage and that it was separate from the PIP coverage. He admits to no concealment or lack of disclosure, and he contends he has instructed his employees to ensure that the customer knows what he or she is getting before leaving the agency. He insists he does not sell anything the customer does not want. Yet, he admits that the customers are not asked if they want one year or a one-half year AD&D policy. In fact, if the customer asks for AD&D coverage, he or she would be sold more than is included in the PIP/AD&D package involved here. Respondent does not consider it illegal to include PIP and AD&D coverage as a package. His clientele is largely made up of the poor risk driver, though he does sell to good drivers, as well. He contends he has done nothing improper and that the complaints of those customers who testified they did not know what they were getting or were misled into believing they had to have AD&D coverage were prompted by Mr. Hoback's investigation. This contention, however, is not supported by the evidence.
Recommendation Revocation suspended for two years and an administrative fine of $2,000.
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what punishment should he receive?
Findings Of Fact Based on the record evidence the Hearing Officer makes the following Findings of Fact: Respondent is now, and has been for approximately the past 20 years, licensed by Petitioner as a general lines insurance agent. On July 3, 1986, Petitioner received a complaint concerning Respondent from Elsa Garcia. Garcia reported that she had purchased automobile insurance through Dixie Insurance Brokers and had been given a temporary insurance binder bearing the signature of a "Paul J. Lovelace" reflecting that her coverage was to be effective March 11, 1985. According to Garcia, however, she had subsequently discovered, after having been involved in an automobile accident on March 23, 1985, that her insurance coverage had not taken effect until after the accident. Garcia's complaint was assigned to one of Petitioner's employees, Burton Powell, to review and investigate. As part of his investigation, Powell contacted Alan D. Kruger, Garcia's attorney. Kruger supplied Powell with Garcia's affidavit and other pertinent documents, including a copy of Garcia's automobile insurance application and the temporary insurance binder she had been given by Dixie Insurance Brokers. The application reflects that Garcia was seeking coverage for the period from April 2, 1985, to October 2, 1985. The binder, on the other hand, indicates that it was to be effective for one month commencing, not April 2, 1985, but March 11, 1985. Someone other than Respondent signed his name to both the application and the binder. 1/ On various occasions prior to December 18, 1987, Respondent was the general lines insurance agent of record for Dixie Insurance Brokers. 2/ On these occasions he never personally signed any insurance applications, nor did he otherwise play any role in the operation and control of the agency. By his own admission, he simply allowed the agency to use his license, without any restrictions imposed by him, in exchange for monetary consideration. In so doing, he willfully engaged in a scheme designed to circumvent the licensing requirements of the Florida Insurance Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order (1) dismissing Count I of the administrative complaint; (2) finding Respondent guilty of Count II of the administrative complaint; and (3) revoking Respondent's general lines insurance agent license for his having engaged in the conduct specified in Count II of the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of November, 1989. STUART M. LERNER 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 November, 1989.
Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 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 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issues to be determined in this case are whether Respondent, Deputy John Bradshaw, engaged in conduct prohibited by the rules promulgated by Petitioner, Pinellas County Sheriff’s Office, and, if so, whether the disciplinary action taken against Deputy Bradshaw was consistent with action taken against other members of the Sheriff’s Office.
Findings Of Fact At all times relevant to this case, John Bradshaw was a deputy employed by the Pinellas County Sheriff’s Office. The Pursuit On September 22, 2006, one or more deputies were “staking out” an area along Ulmerton Road in Largo where burglaries of vehicles had been reported. At about 1:30 a.m., a suspicious vehicle was observed in the area by Sgt. Lawrence Palombo. When the driver of the vehicle began to drive recklessly (traveling southbound in a northbound lane), Sgt. Palombo decided to make a traffic stop of the vehicle. He called other deputies for assistance before doing so. When Sgt. Palombo turned on his flashing lights to make the traffic stop, the suspicious vehicle slowed, pulled to the right as if to stop, but then sped away. A pursuit of the vehicle was immediately initiated. The testimony of the deputies involved in the pursuit differed as to where the pursuit began, but the exact location is not material in this case. The pursuit started on 49th Street somewhere between 110th Avenue and 126th Avenue and traveled south on 49th Street. Sheriff’s Office regulations limit the number of Sheriff’s Office cruisers that may participate in a pursuit to three. The three cruisers involved in this pursuit were driven by Sgt. Palombo, Deputy Bradshaw and Deputy Jeff Martin. The pursuit reached speeds of 85 or 90 mph. It passed through a number of intersections along 49th Street that had traffic lights. At some of these intersections, the traffic light was red for southbound traffic, but the deputies proceeded through the intersections on the red lights. As the pursuit approached the intersection of 49th Street and 38th Avenue, the order in which the pursuing deputies were aligned behind the suspect vehicle was Sgt. Palombo in the lead, then Deputy Bradshaw, and Deputy Martin last. Deputy Bradshaw’s cruiser was a 2005 Crown Victoria 4-door sedan. All the cruisers had their lights flashing. The record shows that Sgt. Palombo had his siren on. The record does not show whether the other two deputies in the pursuit were using their sirens, but it was not a disputed factual issue and it would be reasonable to infer that all three deputies were using their sirens. The intersection at 38th Avenue has four southbound lanes, including a left turn only lane, two through only lanes, and a far right lane which can be used for through traffic or to turn right. Sgt. Palombo testified that, as the pursuit neared the intersection, he saw “vehicles . . . stopped at the intersection,” and “we came up on cars that were at that intersection going in the same direction.” These “civilian” vehicles must have been stopped in the two right lanes because its was undisputed that Sgt. Palombo was in the left turn lane and Deputy Bradshaw was in the lane next to Sgt. Palombo, the leftmost through lane. The suspect vehicle proceeded through the intersection at 38th Avenue. Sgt. Palombo slowed to a stop in the left turn lane. He thinks he stopped his cruiser at the “stop bar” or “maybe in the crosswalk.” The Crash Grace Umali, driving a 2002 Toyota 4-Runner was traveling westbound (coming from the deputies’ left) through the intersection on a green light. Her three-year-old son was also in the vehicle. Sgt. Palombo, stopped in the left turn lane, saw the Umali vehicle come from his left, pass in front of him and then collide with Deputy Bradshaw’s cruiser. A subsequent crash scene investigation found no pre-crash skid marks, which indicates that neither driver braked hard before impact. There was no dispute that the collision occurred in the leftmost, southbound through lane, only about one car length beyond the “stop bar” where vehicles must stop for a red light. Following the initial impact, Deputy Bradshaw’s vehicle continued south across the intersection and hit a traffic light pole at the southwest corner of the intersection. The cruiser caught fire as a result of the crash. The Umali vehicle also traveled south across the intersection after impact, rolled over, and came to rest upside down along the western curb of 49th Street, beyond Deputy Bradshaw’s cruiser. Both vehicles were “totaled.” The crash resulted in Deputy Bradshaw suffering a broken leg and minor cuts and bruises. Ms. Umali and her son also suffered injuries, but the record does not identify their injuries. Evidence was presented on the disputed factual issue of which vehicle struck the other. Deputy Bradshaw contends that the Umali vehicle struck him, somewhere near his left front wheel. Deputy Martin, who was 50 to 70 yards behind Deputy Bradshaw when the crash occurred, said it appeared to him that the Umali vehicle struck Deputy Bradshaw. However, Deputy Linda Willett, who was a member of the Major Accident Investigation Team (MAIT) that responded to the Bradshaw crash, said the crash scene investigation, primarily the physical evidence of damage on each vehicle, made her conclude that Deputy Bradshaw struck the Umali vehicle. She could not recall seeing any damage to the front of the Umali vehicle. Captain Nicholas Lazaris, the leader of the MAIT Team, and Lt. Timothy Pellela, another MAIT Team member, also concluded that Deputy Bradshaw had struck the Umali vehicle. The parties placed more importance on this factual dispute then it warranted because the difference between the two scenarios is a fraction of a second.1 However, the more persuasive evidence is from the crash scene investigation –- indicating that Deputy Bradshaw struck the Umali vehicle -- because the vehicle damage evidence is more objective and reliable than human memory of split-second events during stressful circumstances. The Speed of the Vehicles The most important factual dispute in this case was how fast Deputy Bradshaw was going when the crash occurred. Deputy Bradshaw claims he slowed to about 35 mph. Sgt. Palombo estimated Deputy Bradshaw’s speed was 40 mph. However, at the hearing, Sgt. Palombo stated in response to a question about how far Deputy Bradshaw was behind him, “To be honest with you, you really don’t want me to know the answer to that question.” His clear meaning was that his attention needed to be elsewhere. This and other testimony by Sgt. Palombo shows his attention was directed forward, as would be expected. Therefore, Sgt. Palombo’s estimate of Deputy Bradshaw’s speed at the moment of the crash is not reliable. Lt. Pelella was an alternate on the MAIT Team that was called to respond to the crash. Lt. Pelella was assigned both on-scene investigation and crash reconstruction duties. In crash reconstruction, a conservation of linear momentum formula is used, which takes into account factors such as the point of impact, the distance the vehicles traveled after impact, their weight, and drag, to arrive at an estimate of the speed of the vehicles at the moment of impact. Applying this methodology, Lt. Pelella estimated that Deputy Bradshaw was traveling at about 57 mph and Ms. Umali was traveling at about 42 mph when the collision occurred. Deputy Bradshaw attempted to cast doubt on the credibility of Lt. Pelella’s estimate of vehicle speeds by showing that the traffic crash report prepared by Deputy Willett the day after the crash included the same speeds for the vehicles, 57 mph and 42 mph, that Lt. Pelella came up with two months later using the conservation of linear momentum formula. Deputy Willett testified that she did not come up with the vehicle speed information for her report; that it had to have been provided by another member of the MAIT Team. In response to a leading question from Petitioner’s counsel, the MAIT team leader, Captain Nicholas Lazaris, agreed that the speeds indicated in Deputy Willet’s report “were filled in to comport with Lieutenant Pelella’s accident reconstruction.” The implication is that Deputy Willett’s report did not include the vehicle speeds when it was prepared and signed by her, but the vehicle speeds were put into the report later without changing the date of the report. The record is left unclear about how the vehicle speeds came to be in Deputy Willett’s report, but this curious situation did not rise to the level of proof of some conspiracy to falsify the report. It also did not cause Lt. Pelella’s conclusions about the vehicles speeds to be unreliable. Sgt. Glen Luben was another member of the MAIT Team that responded to the Bradshaw crash. He obtained the Power Train Control Module from Deputy Bradshaw’s vehicle to extract some of the data that is automatically recorded when there is a loss of power. Sgt. Luben testified that the recorded information indicated that Deputy Bradshaw’s vehicle was going 70.13 mph when his cruiser’s engine stopped. He said this figure was consistent with the crash reconstruction done by Lt. Pelella which estimated Deputy Bradshaw’s speed to be 57 mph, because the conservation of linear momentum formula produces a “minimum speed.” Sgt. Luben believes 70.13 mph to be the more likely actual speed that Deputy Bradshaw was traveling at the moment of impact. Sgt. Palombo thought Ms. Umali was exceeding the speed limit, which is 35 mph. Lt. Pelella’s estimate that Ms. Umali was going 42 mph is consistent with Sgt. Palombo’s testimony. Deputy Martin testified that Ms. Umali was going “[p]robably 55 or 60, just from what little I saw of it.” This testimony by Deputy Martin, as well as his testimony that the Umali vehicle struck the cruiser and that Deputy Bradshaw used due care, was not persuasive. It appeared to be based on Deputy Martin’s desire to support Deputy Bradshaw rather than an impartial account of his actual observations. The crash scene photos and other data do not support Deputy Bradshaw’s claim that he was going only 35 mph at the time of the crash. The more persuasive evidence puts his speed in the range established by Lt. Pelella’s crash reconstruction and Sgt. Luben’s analysis of the Power Train Module from Deputy Bradshaw’s cruiser, between 57 and 70 mph. Although Deputy Bradshaw denied that he was going 57 mph, he agreed that if he had been going that fast, he would not have been exercising due care. Whether Deputy Bradshaw was Wearing His Seatbelt At the final hearing Respondent presented some evidence to show that Deputy Bradshaw was not wearing his seatbelt at the time of the crash. Deputy Bradshaw claims he was wearing his seat belt, but he objected to Petitioner’s introduction of seat belt evidence because Deputy Bradshaw was not informed in the charging document that his failure to wear his set belt was an element of the charges against him. The August 10, 2006, inter-office memorandum that officially informed Deputy Bradshaw of the charges against him stated: Synopsis: While engaged in a high speed pursuit, you ran a red light at a minimum speed of 57 miles per hour and collided with a civilian vehicle which had already entered the intersection. Serious injuries were sustained by both drivers and a passenger in the civilian vehicle. Similarly, the parties’ Joint Pre-Hearing Stipulation stated Petitioner’s position as “Respondent was traveling at a speed which was faster than that at which he could safely clear the intersection.” Therefore, the Administrative Law Judge sustained Deputy Bradshaw’s objection and ruled that seat belt evidence was inadmissible. Ms. Umali’s Impairment In the course of the post-crash assistance provided to Ms. Umali and her passenger, it was determined that she was driving under the influence of alcohol. She was charged and convicted for misdemeanor DUI. The location of the initial collision means that Ms. Umali had crossed about 60 percent of the intersection before the collision, but Deputy Bradshaw had just entered the intersection. Clearly, Ms. Umali entered the intersection well before Deputy Bradshaw. The record evidence establishes that when Ms. Umali got to the intersection, Sgt. Palombo’s cruiser was stopped at the intersection with its siren on and lights flashing. Ms. Umali would have seen Sgt. Palombo’s cruiser. Respondent’s Exhibit 7 contains a deputy’s written notes from his interview with Ms. Umali just after the accident. Neither Ms. Umali nor the deputy who interviewed her were called as witnesses. The exhibit was admitted into evidence over a hearsay objection to show what was considered by the Administrative Review Board in determining the discipline to recommend. The exhibit was not admitted for the truth or accuracy of the statements contained in the exhibit.2 However, the hearsay notation that Ms. Umali told the interviewing deputy that she saw the “cops” and their flashing lights supplements the non-hearsay evidence that she saw (at least) Sgt. Palombo’s cruiser. Whether caused by her impairment or another reason, Ms. Umali did not yield the right-of-way to an emergency vehicle as the law requires. It is Deputy Bradshaw’s position that Ms. Umali’s impairment and failure to yield are important facts in determining whether he used due care under the circumstances. An unstated implication of his argument is that it was reasonable for him to expect civilian vehicles approaching or entering the intersection to yield and, consequently, reasonable for him to disregard the possibility of a non-yielding vehicle. This argument is inconsistent with Deputy Bradshaw’s testimony that he did not notice whether the light at 38th Avenue was red or green, but the color of the light did not matter to him because he always slows at an intersection to make sure it is safe to pass through. In other words, he drives defensively even when he has the right of way. Curiously, no one asked Sgt. Palombo why he stopped in the left turn lane at 38th Avenue. He said he intended to continue his pursuit of the suspect vehicle and that, as soon as the Umali vehicle passed by him, he proceeded through the intersection and continued the pursuit. It is reasonable to infer from the record evidence that Sgt. Palombo came to a stop or near-stop because he saw the Umali vehicle approaching. If he did not see the Umali vehicle approaching, he would have merely slowed down, as he did at the other intersections through which the pursuit had passed. Deputy Bradshaw should have been alerted by Sgt. Palombo’s action in stopping at the intersection that there might be oncoming traffic. Petitioner showed by a preponderance of the evidence that Deputy Bradshaw failed to drive with due regard for the safety of all persons under the circumstances that existed at the time of the crash. The Disciplinary Process Deputy Bradshaw claims that his case was handled differently than all other disciplinary cases arising from a crash during a pursuit. The usual procedure followed when there has been a pursuit that resulted in a crash is that the matter is reviewed by the Pursuit Review Board and also the Crash Review Board. Neither of these boards reviewed the Bradshaw crash. Instead, the crash was investigated by the Administrative Investigations Division within the Sheriff’s Office and then presented to the Administrative Review Board to determine whether discipline against Deputy Bradshaw was warranted and to make a recommendation for disciplinary action to Sheriff James Coats. Deputy Bradshaw believes his case was handled differently because of the concern of Petitioner’s general counsel about civil liability arising from the collision. This proposed explanation seems illogical, because an employer concerned with liability would be expected to assert that its employee did nothing wrong, not the opposite. A plaintiff would be encouraged, not discouraged, by Petitioner’s action against Deputy Bradshaw in this case. Petitioner acknowledges that the procedure it followed in the Bradshaw matter was atypical, but that it was justified by the atypical facts involved. Captain Wayne Morris was chairman of the Pursuit Review Board which meets monthly to review pursuits from the previous month. He said the Pursuit Review Board has an option of referring a matter for an internal investigation when there is an appearance of possible misconduct by a deputy. He said the Bradshaw crash was one of several pursuit cases that was scheduled to come before the board, but he asked or suggested that it should be investigated by the Administrative Investigations Division based on “the seriousness of the crash.” He said that he could not remember a crash that involved vehicles that were “totaled” or injuries to a “third party.” Captain Morris said that even though General Order 15- 2 of the Sheriff’s Office states that all pursuits will be reviewed by the Pursuit Review Board, that is just a guideline and does not always have to be followed. Captain Dean Lachance, chairman of the Crash Review Board, said that his board was not the appropriate body to investigate the Bradshaw matter “because of the level of discipline that we can levy,” and that if this matter had come to the board, it would likely have been referred to the Administrative Investigations Division. Sheriff Coats provided similar testimony that this was an unusual case in the time that he has been Sheriff and it warranted a different review. An Administrative Review Board considered the information compiled by the Administrative Investigations Division and recommended that Deputy Bradshaw be suspended for four days. Sheriff Coats accepted the recommendation and notified Deputy Bradshaw of the disciplinary action on August 10, 2007. The suspension was served by Deputy Bradshaw on August 23 through 26, 2007. Deputy Bradshaw made much of the deviation from usual procedures that occurred in this case, suggesting that it shows some kind of conspiracy to determine wrongdoing and to impose harsh discipline. However, the evidence shows that there was a reasonable perception, shared by several high-ranking officials in the Sheriff’s Office, that the matter warranted special attention because (1) it involved unusually extensive property damage and personal injuries to a deputy and to civilians and (2) because Deputy Bradshaw might have been at fault. It is natural for a crash under these circumstances to create heightened concern or interest in the Sheriff’s Office. Deputy Bradshaw’s claim that the pending lawsuit by Umali against the Sheriff’s Office caused his discipline to be more severe than was justified is not supported by the evidence. Whether the Disciplinary Action was Consistent Deputy Bradshaw showed that the Crash Review Board has never recommended more than a reprimand, even in cases where a deputy was involved in two preventable crashes. Deputy Bradshaw argues that this proves his own discipline was too severe. However, the evidence presented by Deputy Bradshaw included no factual details from the other disciplinary cases that could establish that they involved similar circumstances or otherwise would warrant similar punishment. The record evidence shows that there were no previous incidents that could be described as “similar.” Under the circumstances, Deputy Bradshaw should have decelerated to a very slow speed or even to a stop to make certain no vehicle was approaching from the east. The discipline Deputy Bradshaw received was commensurate with the degree of his deviation from his duty to drive with due regard for the safety of all persons. It was neither inconsistent with prior disciplinary action taken by the Sheriff’s Office against other members nor unreasonably harsh for the offense that was proven. Facts Related to Section 112.532(6), Florida Statutes As discussed more fully in the Conclusions of Law, Section 112.532(6), Florida Statutes (2006), states that disciplinary action cannot be taken against any law enforcement officer in the state for any allegation of misconduct if the investigation of the allegation is not completed within 180 days after the date the agency receives notice of the allegation by a person authorized by the agency to initiate an investigation. Deputy Bradshaw contends that the investigation of the charges against him arising from the crash on September 22, 2006, was not completed within 180 days and, therefore, no disciplinary action can be taken against him. Captain Teresa Dioquino was in charge of the Administrative Investigations Division of the Sheriff’s Office when the subject crash occurred. She testified that Deputy Bradshaw was informed that her division was investigating the crash on May 21, 2007, through a “Notice of Complaint.” She said that was also the date that her division “formally” began its investigation. If May 21, 2007, was the operative beginning date, the Sheriff’s Office met the 180-day requirement. However, the operative beginning date to calculate the 180-day requirement, as stated in the statute, is “the date the agency received notice of the alleged misconduct.” It is not the date that an investigation is formally initiated. Deputy Bradshaw’s speed going through the intersection was the fundamental factual basis for his alleged misconduct in this case. Therefore, the date when the Sheriff’s office received notice of Deputy Bradshaw’s speed would be the operative beginning date to calculate compliance with the 180—day requirement. Petitioner argues that it did not start its investigation of Deputy Bradshaw before May 21, 2007, because it was waiting for the results of Sgt. Luben’s analysis of the Power Train Control Module from Deputy Bradshaw’s cruiser, which was completed in May 2007. Petitioner essentially argues that the completion of Sgt. Luben’s analysis was a necessary prerequisite for the Sheriff’s Office to be on notice of the “allegation of misconduct” regarding Deputy Bradshaw. However, Sgt. Luben testified that he did not discover until January 2007, that the Power Train Control Module even existed in the 2005 Crown Victoria. In other words, when the Sheriff’s Office was informed on December 13, 2006, that Deputy Bradshaw was traveling at 57 mph, based on Lt. Pelella’s crash reconstruction report, it had no reason to think Sgt. Luben was going to come up with another estimate of Deputy Bradshaw’s speed from his analysis of the Power Train Control Module. Once Lt. Pelella’s 57 mph estimate was reported, Sgt. Luben’s subsequent analysis became just a part of the investigation of the alleged misconduct that had to be completed within 180 days. Furthermore, the fact that the Bradshaw crash never went to the Pursuit Review Board or the Crash Review Board during the period from December 2006 to May 2007 indicates a continuing assumption that the Bradshaw crash warranted an investigation of possible misconduct. Using December 13, 2006, as the date the Sheriff’s Office received notice of the alleged misconduct of Deputy Bradshaw, the investigation was not completed within 180 days as required by Section 112.532(6), Florida Statutes (2006). Nevertheless, as discussed in the Conclusions of Law that follow, the exclusive remedy for a violation of the 180-day requirement is an injunction action in circuit court. The failure of the Sheriff’s office to comply with the 180-day requirement cannot be raised as a defense in this administrative action.3
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is RECOMMENDED that the Civil Service Board issue an Order that makes findings of fact that are consistent with those set forth in this Recommended Order, and contains a conclusion that (1) Deputy Bradshaw engaged in the prohibited conduct for which he was charged, and (2) the disciplinary action taken against him was consistent with action taken against other members of the Sheriff’s Office. DONE AND ENTERED this 18th day of April, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2008.
Findings Of Fact The facts in this case are not in dispute, however, the Petitioner appealed the agency's act of suspending him for a period of eight hours without pay based on his contention that the suspension "is excessive". On March 2, 1978, while on duty assigned as a Highway Accident Investigator, the Petitioner investigated an accident which occurred at Kelly's Shell Station which is located on State Road 207 and Interstate 95 in St. Augustine, Florida. After completing his investigation, the Petitioner in an attempt to leave the scene of the accident, struck a sign post with the right front bumper of his car, causing damage to his vehicle in the amount of approximately $728.00. There is no dispute but that the accident was determined to be the fault of the Petitioner. Following the completion of an accident report and an investigation of the matter, Captain Hodges, who is assigned to the St. Augustine Office recommended the issuance of a letter of written reprimand to the Petitioner, however, upon review by the headquarters office, the Petitioner was suspended for a period of one day because in the opinion of the reviewing team, such a penalty was warranted in view of circumstances which prompted the accident and the severity of the damage. During the hearing it was further revealed that there were no view obstructions and the weather was clear and dry. As stated, there is little dispute factually in this case, however, the Petitioner contends that there were no acts of gross negligence on his part; this was his first accident wherein he was charged with fault, and that other troopers involved in similar accidents had only received letters of reprimand. Chapter 22A-10, Florida Administrative Code authorizes the Respondent, Department of Highway Safety and Motor Vehicles to discipline employees for violations of its rules and regulations. In view thereof, and inasmuch as the suspension herein was issued pursuant to the guides of Chapter 22A-10 and the admissions of Petitioner that he was at fault in causing the accident to which he was suspended, there is competent and substantial evidence to sustain the action of the Respondent in suspending the Petitioner for a period of eight hours without pay. This appears to be an area of discretion which does not lie within the authority of the Hearing Officer to second guess the wisdom of the Respondent, or to attempt to determine whether or not the suspension was "excessive". I shall therefore recommend that the agency action be sustained.
Recommendation Based on the foregoing Findings of Fact and Conclusions I hereby recommend that the action of the agency suspending the Petitioner for a period of eight hours without pay be SUSTSAINED. ENTERED this 27th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1978. COPIES FURNISHED: Ronald Cantrell Rt. 4, Box 241EZ-1 St. Augustine, Florida 32084 Major John Hicks, Deputy Director Dept. of Highway Safety & Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure and eligibility for licensure for three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 5. 7 & 8 Addressed in paragraph 6. 9 & 10. Addressed in paragraphs 7 and 8. 11. Addressed in paragraph 9. 12-14. Rejected as not relevant. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Thomas L. Neilson, Esquire 105 West Fifth Avenue Tallahassee, Florida 32303 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact In January 1995, Petitioner, Dubois Farms, filed a complaint with the Department. The complaint alleged that Respondent, Mo-Bo, and Respondent, General Accident, was indebted to Petitioner in the amount of $800.00 for 100 cartons of eggplant purchased from Petitioner. The Department gave notice to the Respondents that the complaint had been filed. On or about February 24, 1995, Mo-Bo responded to the complaint, denied the allegations, and requested a hearing. At hearing, Petitioner offered and had admitted into evidence Exhibits numbered 1-5, subject to Respondent General Accident's hearsay objection. No other proof was offered. Since Petitioner's proof was hearsay, and not subject to any exceptions to the hearsay rule, it cannot support a finding of fact that Mo-Bo is indebted to Petitioner as claimed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the complaint filed by Dubois Farms, Inc., against Mo-Bo Enterprises, Inc., and its surety, General Accident Insurance Company of America. DONE and ORDERED this 30th day of August, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 30th day of August, 1995. COPIES FURNISHED: Mike D. Bess, Qualified Representative Marketing Management Services Florida Fruit and Vegetable Association P.O. Box 140155 Orlando, Florida 32814-015 Zoe Krikorian, Esquire Brad A. Thomas, Esquire General Accident Insurance Company Brickell Centre - Suite 900 799 Brickell Avenue Miami, Florida 33131-2805 Don Bieda, Esquire Legal Department General Accident Insurance Company 436 Walnut Street Philadelphia, Pennsylvania 19105-1109 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Mo-Bo Enterprises, Inc. P.O. Box 1899 Pompano Beach, Florida 33061 Charles Barnard, Esquire 200 SE 6th Street, Suite 205 Fort Lauderdale, Florida 33301 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810
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
