The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him, as modified at hearing, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Statement of Facts Admitted3: Respondent has been employed by Direct General Insurance Agency, Inc. (Direct General) for the past five years. He is the manager of a Direct General office located at 7558 West Commercial Boulevard, Lauderhill, Florida. This has been Respondent's principal business address since September 2005. Prior to September 2005, Respondent was the manager of a Direct General office located at 8300 West Oakland Park Boulevard, Sunrise, Florida. Respondent did not notify Petitioner of this September 2005 change of his principal business address within 60 days of the change. He assumed, erroneously it turns out, that Direct General's "licensing department" would inform Petitioner of the change. At all times material to the instant case, Respondent, as a licensed agent acting on behalf of Direct General, sold automobile insurance, along with three ancillary or "add-on" products. The three "add-on" products Respondent sold were an accident medical protection plan, a travel protection plan, and a term life insurance policy (hereinafter referred to collectively as the "Add-Ons"). From September 2003 to May 2006, Respondent sold these Add-Ons to approximately 1300 customers, including Ms. Roberts- Hall, Mr. Bentivegna, and Mr. Moore. For his efforts on behalf of Direct General, Respondent was paid an hourly wage, plus a commission for each of the Add- Ons he sold. He did not receive a commission for any automobile insurance policy sales he made. Direct General had sales goals with respect to Add-Ons that it expected its agents to meet. How well an agent did in meeting these goals was an "important factor" in the job performance evaluation the agent received annually from his supervisor (as Respondent was aware). An agent's failure to meet a particular goal, however, did not inevitably lead to the "fir[ing]" of the agent. Nonetheless, it was obviously in the agent's best interest to sell as many Add-Ons as possible. Respondent's supervisor was Sara Silot, a Direct General District Manager. In addition to an annual job performance evaluation, Ms. Silot provided Respondent, as well as her other subordinates, with regular feedback during the course of the year regarding their Add-On sales numbers. Each of the customers (Ms. Roberts-Hall, Mr. Bentivegna, and Mr. Moore, hereinafter referred to collectively as the "Complaining Customers") referenced in Counts I through VII and XV through XVIII of the Amended Administrative Complaint (hereinafter referred to collectively as the "remaining sliding counts") purchased the policies referenced in these counts in person at Respondent's office, where they were given paperwork to review and to then initial, sign, and/or date in numerous places in order to consummate the transaction. This paperwork consisted of, depending on the transaction, as few as 14, and as many as 20, pages of various documents (hereinafter referred to collectively as the "Transactional Paperwork"). The Transactional Paperwork clearly and conspicuously informed the reader, consistent with what Petitioner orally explained at the time of purchase to each of the Complaining Customers, that the Add-Ons being purchased were optional policies that were separate and distinct from the automobile insurance policy also being purchased and that these Add-Ons carried charges in addition to the automobile insurance policy premium. In providing his oral explanation to the Complaining Customers, Respondent circled (with a writing utensil) language in the Transactional Paperwork that conveyed this information about the Add-Ons. His purpose in doing so was to bring this language to the attention of the Complaining Customers. In view of the contents of the Transactional Paperwork, including the portions highlighted by Respondent, and what Respondent told the Complaining Customers concerning the Add-Ons, it was reasonable for Respondent to believe that the Complaining Customers were informed about the Add-On products they were being sold and were (by executing the paperwork) consenting to purchase them. The Transactional Paperwork included, among other things, a one-page Accident Medical Protection Plan form; a one- page Accident Medical Protection Plan Application form; a one- page American Bankers Insurance Company Optional Travel Protection Plan form; a one-page Statement of Policy Cost and Benefit Information-One Year Term Life Insurance Policy form; a one-page Explanation of Policies, Coverages and Cost Breakdown form; a multi-page Premium Finance Agreement; and a one-page Insurance Premium Financing Disclosure form. Among the information contained on the top half of the Accident Medical Protection Plan form was the cost of the plan. The bottom half of the form read as follows: THIS IS A LIMITED POLICY. READ IT CAREFULLY. I the undersigned understand and acknowledge that: This Policy does not provide Liability Coverage for Bodily Injury and Property Damage, nor does it meet any Financial Responsibility Law. I am electing to purchase an optional coverage that is not required by the State of Florida. My agent has provided me with an outline of coverage and a copy of this acknowledgment. If I decide to select another option or cancel this policy, I must notify the company or my agent in writing. I agree that if my down payment or full payment check is returned for any reason, coverage will be null and void from the date of inception. Insured's Signature Date I HEREBY REJECT THIS VALUABLE COVERAGE: Insured's Signature Date The Accident Medical Protection Plan Application form indicated what the annual premium was for each of the three categories of coverage offered: individual, husband and wife, and family. The top half of the American Bankers Insurance Company Optional Travel Protection Plan form summarized the benefits available under the plan. The bottom half of the form read as follows: Please Read Your Policy Carefully for a Full Explanation of Benefits Purchasing the Optional Travel Protection Plan is not a condition of purchasing your automobile liability policy. I hereby acknowledge I am purchasing an Optional Travel Protection Plan, and that I have received a copy of this acknowledgement. ___ ____ Insured's Signature Date I HEREBY REJECT THIS VALUABLE COVERAGE: Insured's Signature ____ Date The Statement of Policy Cost and Benefit Information- One Year Term Life Insurance Policy form noted the amount of the "Annual Premium for this policy" and that the "Annual Premium included a $10.00 policy fee that [was] fully earned." On the Explanation of Policies, Coverages and Cost Breakdown form, the Add-Ons were listed under the heading of "optional Policies" and the cost of each Add-On was separately stated. The first page of the Premium Finance Agreement also contained an itemization of the cost of each Add-On, as did the Insurance Premium Financing Disclosure form. On this latter form, the Add-Ons were included in a section entitled "Optional insurance coverage." The form also advised, in its prefatory paragraph, that: Florida law requires the owner of a motor vehicle to maintain Personal Injury Protection and Property Damage liability insurance. Under certain circumstances as provided in Chapter 324, Florida Statutes, additional liability insurance may be required for Bodily Injury liability. Also, additional insurance is usually required by a lienholder of a financed vehicle. Florida law does not require other insurance. The direct or indirect premium financing of auto club membership and other non-insurance products is prohibited by state law. Each of the Complaining Customers was capable of reading the above-described documents and understanding that purchasing the Add-Ons was optional, not mandatory, and involved an additional cost.4 Respondent gave each of them as much time as they wanted to read these documents, and he did not refuse to answer any of their questions. Ms. Roberts-Hall rejected the travel protection plan, and signed and dated the American Bankers Insurance Company Optional Travel Protection Plan form so indicating, in 2004, 2005, and 2006. Mr. Bentivegna rejected the term life insurance policy, as documented by his signature next to the word "Rejected," which was written in by hand at the bottom of the Statement of Policy Cost and Benefit Information-One Year Term Life Insurance Policy form. As noted above, unlike Mr. Bentivegna, Ms. Roberts- Hall and Mr. Moore each signed up for a term life insurance policy. On Mr. Moore's Application for Life Insurance, his three children, Melissa Moore, Kenneth Moore, Jr., and Timothy Brown-Moore, were named as "Beneficiar[ies]." While Kenneth Moore, Jr., and Timothy Brown-Moore were listed as "Members of Applicant's Household" on Mr. Moore's application for automobile insurance, Melissa Moore (who, at the time, was away at college) was not. Elsewhere on Mr. Moore's Application for Life Insurance, in the "Insurability Data" section, the question, "Have you during the past two (2) years had, or been told you have, or been treated for . . . a) Heart trouble or high blood pressure?" was answered, incorrectly, in the negative. Mr. Moore placed his initials next to this answer. Several days after her May 2004 purchases, Ms. Roberts-Hall telephoned Respondent and told him that she was having second thoughts about her accident medical protection plan purchase. Respondent suggested that she come to his office and speak with him in person, which she did. During this follow-up visit, Respondent went over with her the benefits of the plan, after which she told him that she was going to keep the coverage. Ms. Roberts-Hall took no action to cancel either of the Add-Ons (the accident medical protection plan and term life insurance policy) she had purchased in May 2004. In fact, she renewed these coverages in May 2005 and again in May 2006 (along with her automobile insurance policy). Prior to these renewals, in February 2005, when contacted by one of Petitioner's investigators who was conducting an investigation of possible "sliding" by Respondent, Ms. Roberts-Hall had expressed her displeasure that Respondent had "given her these additional products." Mr. Bentivegna and Mr. Moore were also contacted by Petitioner's investigative staff to discuss the Add-On purchases they had made from Respondent. Mr. Moore was contacted approximately ten months after his May 2004 purchases. The three Add-Ons he had purchased were still in effect at the time, but he took no action to cancel any of these policies. He did not renew them, however; nor did he do any other business with Respondent following his May 2004 purchases. Petitioner's policy is have its investigators "make it very clear from the beginning," when interviewing aggrieved consumers, that no promises are being made that these consumers will be "getting their money back" if they cooperate in the investigation. It does not appear that there was any deviation from this policy in Petitioner's investigation of Respondent. The investigation of Respondent led to the charges against him that are the subject of the instant case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of committing the violation of Section 626.551, Florida Statutes, alleged in Count X of the Amended Administrative Complaint, fining him $250.00 for such violation, and dismissing the remaining counts of the Amended Administrative Complaint. DONE AND ENTERED this 29th day of March, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2007.
Findings Of Fact By Emergency Suspension Order dated May 23, 1983, Petitioner suspended Respondent's Florida licenses as an Ordinary Life Insurance Agent, as an Ordinary Life, including Disability Insurance Agent, and as a General Lines Insurance Agent. At all times material to the charges in the Administrative Complaint, Respondent held those licenses above-noted. During the times of the hearing he was under the Emergency Suspension. The continuance of the hearing from August 2 to September 26, 1983, was requested by Respondent. Roosevelt King Jones is the owner of Heart of Florida Insurance Agency, Tampa, Florida, and was the sole owner of that agency at all times here relevant. All of the charges relate to automobile insurance policies. Respondent employed an underwriter, who does not require licensing by petitioner, to assist in the preparation of applications for insurance, quote rates to applicants, take deposits, give receipts for payments, issue cards to show insurance in effect for applicant, and make changes in policies as necessary; a secretary; receptionist; and an office manager. At times more than one underwriter was employed. Respondent testified that a former employee, Shirley Cook, was licensed and authorized to accept applications for the agency, but Cook was not in the employ of Respondent at the time the transactions here involved occurred. Respondent is also President of Heart of Florida Bank Supply and Heart of Florida Mining Company, and he is involved with the creation of the National Association of Federated Churches. Respondent spent two or three hours per day at the insurance agency where he signed the applications and handled complaints his secretary or underwriter were unable to resolve. Respondent was the only person authorized to accept the applications on behalf of the insurance company after Cook's employment had been terminated. The office procedure was for the receptionist/secretary to refer a person seeking insurance to the underwriter who would look up the rates for the coverage desired, advise the applicant, prepare the application form for the signature of the applicant, accept applicant's payment, or down payment if the premium was to be financed, and, if so, prepare the premium finance agreement. The underwriter would issue an insurance card to the applicant, give applicant a receipt for any moneys received, call the insurer for a Binder number if required by the insurer, and, when all of the documents were completed, put them on Respondent's desk, with the payment received, for Respondent's signature. Respondent was the only person authorized to draw checks on the agency's bank account, although he testified that while Shirley Cook was employed she had "banking authority." The quoted phrase was not explained, so it is unclear that Cook could write checks against this account. After Respondent bad checked the application file placed on his desk and signed the necessary documents, a check would bed cut to be signed by Respondent to forward to insurer with the application. Henry C. Daniels was notified by Heart of Florida Insurance Agency that his automobile insurance was up for renewal. He went to the agency on February 1, 1983, paid $335 cash for which he was issued a receipt (Exhibit 1). Daniels never received a policy. When an investigator from the Department of Insurance visited Daniels on May 8, 1983, the latter was unaware that he did not have insurance on his car. Daniels contacted Respondent to ask why he had not received a policy and Jones told him the company had not sent out the policies. Respondent, on May 10, 1983, executed an insurance Binder on Integrity Insurance Company effective February 1, 1983 (Exhibit 1). When Associated Insurance Brokers, who represented Integrity Insurance Company, was contacted in May, 1983, no record of an application from Daniels could be found in their files and they had not issued a policy. Before the August 2 hearing, Associated Insurance Company again checked their files and found an application for Daniels dated May 10, 1983 (Exhibit 2). A policy was issued to Daniels for one year effective May 16, 1983. Associated Insurance Company does not issue Hinders. When their agents call in an application, the agent is given a Binder number which is good only after the insurer gets the application and premium payment. Respondent corroborated Daniels' testimony that the latter visited him on May 10, 1983, with the news that the Department of Insurance had advised Daniels he was without automobile insurance, that he, Jones, checked the file and found his application had not been sent in, that he had Daniels execute another application dated May 10, 1983, which was sent in and the policy was issued. Respondent provided no explanation for the failure to submit Daniels' original application. Darlene Thompson went to Heart of Florida Insurance Agency for automobile insurance on July 30, 1982. She paid the premium of $125.30 by check dated July 30, 1982 (Exhibit 6) and was given a receipt (Exhibit 7). She was told her policy would be received In three to four weeks. When the policy did not arrive, she called the agency several times and was assured the policy was in the mail. She finally went down to Heart of Florida Insurance Agency and talked to Jones. She was shown an application dated September 27, 1982, on which she recognized her signature was forged (Exhibit 4) and was told she owed additional premiums. She demanded her policy be cancelled and her money refunded. By letter dated October 27, 1982 (Exhibit 8) Jones refunded $76.00 to Ms. Thompson as her prorata share of the premium for the period 7/31/82 to 12/31/82. Her check (Exhibit 6) was deposited by Heart of Florida Insurance Agency October 19, 1982. Heritage Insurance Company, on whose application form Thompson's signature had been forged, never issued a policy to Ms. Thompson (Exhibit 9). Following an inquiry by petitioner's branch office, Respondent remitted the additional $49.30 to Thomspon (Exhibit 65). Patrick Mulkins went to Heart of Florida Insurance Agency on September 23, 1982, and made a cash payment of $449 for automobile insurance to be paid in installments (Exhibit 12). The application was prepared on Allstate Insurance Company as a member of Florida Joint Underwriting Association. A couple of months later Mulkins was advised by the bank that was financing his car that he had no insurance. He went to Heart of Florida agency and was issued a Binder (Exhibit 15) dated January 4, 1983. When his bank again notified Mulkins he had no insurance he again advised the agency. At this time a forged application dated April 18, 1983, was prepared and forwarded to the insurance company with the proper payment, and the insurance policy was issued--some seven months after Mulkins initial application. By letter dated May 26, 1983 (Exhibit 23) Allstate Insurance Company notified Mulkins that his policy was void because the check accompanying the application drawn on the account of Heart of Florida group was dishonored. Respondent testified that when be learned his employee, Hunt, who prepared Mulkins' application, had not forwarded the $449 to the carrier, he referred the matter to the State's Attorney apparently claiming Hunt had absconded with the funds. No evidence was submitted that Mulkins received a policy or refund of the $449 paid by him to Respondent. Lisa Vallenga went to Heart of Florida Insurance Agency on December 15, 1982, to procure automobile insurance for her husband, Perry Vallenga. She paid $56 for the coverage, was issued an insurance identification card (Exhibit 17) with effective date of 12-15-82, and a receipt for the $56 paid (Exhibit 18). Vallenga never received a policy for the coverage his wife purchased, but was unaware he did not have coverage until he received his policy from Allstate Insurance Company in May, 1983, showing coverage from April 16, 1983, to April 16, 1984 (Exhibit 19). The application Mrs. Vallenga had signed December 15, 1982 (Exhibit 20) had been altered to show the date of 4-15-83 vice 12-15-82. By letter dated 5/18/83 (Exhibit 21) Allstate advised Vallenga the policy previously issued to him (Exhibit 19) was declared void because the Heart of Florida check in the amount of $56 which accompanied the application was stamped Check Returned Uncollected Funds." In explanation of the Vallenga transaction, Respondent only stated the policy shows Vallenga was issued PIP coverage and the signature on the application was not that of Respondent. No evidence was submitted that Vallenga received the insurance for which he paid Respondent or a refund of the premium. Mary Coy went to Hear of Florida Insurance Agency in April, 1982, to purchase automobile insurance. She completed an application, paid $66 and executed a premium finance agreement whereby she agreed to make monthly payments to Insurance Services, Inc., to cover the balance of tee premium of $155 plus interest (Exhibit 30). The application was forwarded to Florida International Indemnity Company, who issued a policy (Exhibit 26) covering the period 5/22/82 to 5/22/83. By check dated 5-25-82 Insurance Services, Inc., sent $312 to Heart of Florida Insurance (Exhibit 29) to cover the premiums of $155 for Coy's policy. Coy made the monthly payments to Insurance Services, Inc., in compliance with her agreement to do so (Exhibit 27). By Notice of Cancellation dated 10-28- 82, Florida International Indemnity notified Ms. Coy that the policy was cancelled effective 11-9-82 for nonpayment of premium (Exhibit 28). Florida International Indemnity's witness claimed his company was never notified the policy was financed, and that when policies are financed the carrier is usually paid by the premium finance company. Respondent testified that once his company submits the application for a premium finance policy they have no further input in the process unless there is a change to the policy. He presented no reason for not forwarding the $155 premium received from Insurance Services, Inc., for Coy's policy, but contended the carrier had no right to cancel Coy's policy because Respondent was the representative of the carrier and their dispute should have been with him rather than the policyholder. Eloise Philyor went to Heart of Florida Insurance Agency on February 2, 1983, to purchase automobile insurance. She made a down payment of $102 (Exhibit 32), executed a premium finance agreement with Insurance Services, Inc. (Exhibit 34) and was issued an insurance Binder effective 2-3-83 (Exhibit 33) on Integrity Insurance Company by Respondent. Integrity Insurance Company received the Philyor application dated 5/10/83 on May 16, 1983. Before the application was processed Capital Premium Plan, Inc., on whom Respondent had written the draft for the financed premium payment cancelled the draft and Integrity did not issue a policy. In the interim Ms. Philyor was making payments to Insurance Services, Inc. When the latter realized no policy had been issued, they returned Ms. Philyor's payment by check dated May 18, 1983 (Exhibit 38). A copy of the application that should have been signed by Philyor on February 3, 1983, was not produced. What was produced was a copy of a combination car policy application dated 5-10-83 written on Associated Insurance Brokers, Inc., who represents Integrity Insurance Company. What is clear from the evidence is that on February 3, 1983, Ms. Philyor applied for insurance, executed a premium finance agreement, paid $102 to Heart of Florida Insurance Agency as the difference in the cost of the premium over that part of the premium financed, commenced payment to the premium finance company, but was not issued the insurance policy for which she had paid. Freddy McGruder went to Heart of Florida Insurance Agency on January 3, 1983, to purchase automobile insurance. He paid $59 to the agency (Exhibit 41), was issued an automobile insurance identification card (Exhibit 42), executed a premium finance agreement dated 1-3-83 (Exhibit 43) which was later changed to 3-3-83 without the knowledge or consent of McGruder, and signed an application for an insurance policy to commence 1-4-83 on Allied Fidelity Insurance Company. This application was signed by Respondent as brokering agent. After about two months had passed, McGruder received a premium payment book, but no policy. When he went to make his second payment to the finance company, he was advised he might not have been issued a policy and it was suggested he contact the Department of Insurance. McGruder called the Heart of Florida Insurance Agency and requested his policy be cancelled. McGruder has not received the policy. A combination car policy application form dated 5-9-83 (Exhibit 48) has McGruder's name in the applicant's signature spaces. This is not McGruder's signature and no portion of the premium he paid has been returned to him. Respondent could give no explanation for failure of the insurer to issue a policy to McGruder. The automobile insurance identification card given to McGruder has the insurer's name, Allied Fidelity Insurance Company, typed thereon. Allied Fidelity issues such a card with its name printed there on only after it receives and approves the application. It then sends the card to the agent for delivery to the insured. Agents of Allied Fidelity are not authorized to issue identification cards until the policy is accepted. Andrew Archible went to Heart of Florida Insurance Agency on January 5, 1983, to purchase automobile insurance. He paid $51 down (Exhibit 50), executed a premium finance agreement dated 1-5-83 to finance the balance of the premium (Exhibit 53) and was given an automobile identification card dated 1-5- 83 (Exhibit 51)(on the same card form used for McGruder) The original application was subsequently offered into evidence as Exhibit 59. This exhibit clearly shows the dates opposite McGruder's signature on the back of the document to have been altered, as the dates 3-3-83 (in-three places) have been written over white-out. The gold copy of the premium finance agreement (Exhibit 55) also clearly shows the dates to have been altered. Exhibit 52 appears to be a facsimile copy of Exhibit 55. Archible made two payments on the Premium finance agreement, but has not received a copy of his policy. Casualty Underwriters, to whom Archible's and McGruder's applications should have been sent (as agent for Allied Fidelity Insurance Company) had no record of these applications. Their date stamp of March V, 1983, is contained on the original applications of Philyor, McGruder, and Achible. The procedure in effect at the time the applications of Philyor, McGruder, and Archible were presented was for the agent (Respondent) to write a draft to the insurance company on Insurance Services, Inc., and to send this draft with the application. When the draft is presented to the bank, the bank calls Insurance Services, Inc., to clear the draft before honoring it. Insurance Services never received the call from the bank to clear a draft for the McGruder or Archible policies. Respondent offered into evidence a draft dated 1-3-83 payable to Autosure Underwriters in the amount of $136 for applicant Freddy McGruder (Exhibit 57). This draft was marked "VOID" and there was no indication it had ever been presented for payment. A check drawn on Heart of Florida group dated 3-3-83 payable to Autosure Underwriters, Inc., in the amount of $50.15, signed by Respondent for the policy of Freddy McGruder, was admitted as Exhibit 60. This check was also marked "VOID" and showed no evidence that it had ever been presented for payment. Shirley Cook was office manager for Respondent from August, 1981, until June, 1982. Cook was a licensed 220 agent. She and Respondent had disagreements which led to her departure. Cook complained to the Department of Insurance about office practices resulting in clients not receiving policies and about bad checks being written by Heart of Florida group. After her departure Respondent forwarded to Petitioner documents tending to show Richard Heaney, another former employee of Respondent and son of Cook, had filed a fraudulent insurance claim (Exhibit 63) and suggested the claim be forwarded to the fraud division. As a result of Cook's complaints and consumer complaints regarding Heart of Florida Insurance Agency, Petitioner commenced an investigation In August, 1982. Bobbie Graham started working for Respondent in September, 1982, as an underwriter. When she began getting threatening calls from clients about not receiving policies, she called the local office of Petitioner to ascertain what problems she might be subject to as a result of her work for Respondent. She was contacted by the investigator and she provided names of individuals, including those named in the charges involved in this Administrative Complaint, who had not received policies they had paid for. When called as a witness by Respondent; Graham denied she had ever withheld policies, wrongfully taken or withheld any money, failed to deliver all applications to Respondent with all moneys received, ever took policies or files from the office, or ever changed the date on any application or other form without being directed to do so by Respondent. Graham further testified she made timely entries in a "binder" book or ledger regarding policies. Respondent was unaware there was such a ledger book in the agency and if there was one, testified it was not authorized by him, but was personal to the underwriter. The investigator in charge of the investigation of Respondent was also called as a witness by Respondent. This agent met with Respondent in August, 1982, and told Jones that he was investigating complaints received about Heart of Florida Insurance Agency. Respondent's testimony, that he first became there was any problem with the Archible policy was when he saw the charge in the Administrative Complaint, is not credible. Respondent also testified that after Ms. Cook left he was the only one in the agency authorized to accept applications and all application files were put on his desk for his signature. A review of the applications admitted into evidence in these proceedings show only three were signed by Respondent, three were signed by employee Leamon Hunt, and someone in the agency wrote Respondent's name on the other two. One of the three Binders admitted into evidence was signed on behalf of the agency by Delores Janacek, the secretary; the other two were signed by Respondent. These facts, plus the limited time Respondent spent at the office, lend credibility to Respondent's testimony that he let the people he hired run the business.
The Issue Whether Respondent committed the acts alleged in Petitioner’s ten-count Second Amended Administrative Complaint, and, if so, what penalty, if any, should be imposed upon Robert Gordon DeWald’s (Respondent) insurance agent licenses.
Findings Of Fact Respondent is currently licensed in Florida as a resident Life Including Variable Annuity (2-14), Life Including Variable Annuity & Health (2-15), Life (2016), and Life & Health (2-18) insurance agent. At all times pertinent to the dates and occurrences referred to herein, Respondent was licensed in this state as an insurance agent and has been a licensed insurance agent in Florida for over 21 years. Prior to being licensed in Florida, Respondent was a licensed insurance agent in the state of New York. Petitioner has jurisdiction over Respondent’s insurance agent licenses and appointments, pursuant to Chapter 626, Florida Statutes (2008).1 National Foundation of America The National Foundation of America (NFOA) is a registered Tennessee corporation that was formed on January 27, 2006, and headquartered in Franklin, Tennessee. NFOA Corporate Resolution, dated April 19, 2006, provides for the corporate authority to “liquidate stocks, bonds, and annuities . . . in connection with charitable contributions or transactions. ” This same resolution also provides for the corporate ability to “enter into and execute planned giving or charitable contribution transactions with donors, including executing any and all documentation related to the acceptance or acquisition of a donation, . . . given in exchange for a charitable gift annuity. ” On September 18, 2006, the State of Washington Office of Insurance Commissioner issued an Order to Cease and Desist: In the Matter of: National Foundation of America, Richard K. Olive, and Susan L. Olive, Order No. D06-245. The Order, among other things, was based on NFOA doing business in the state and not having been granted a certificate of authority as an insurer in the state of Washington and not having been granted tax exempt status under Section 501(c)(3) of the IRC. On April 13, 2007, the Florida Office of Insurance Regulation (OIR) issued an Immediate Final Order (IFO) In the Matter of: National Foundation of America, Richard K. Olive, Susan L. Olive, Breanna McIntyre, and Robert G. DeWald, Case No. 89911-07, finding that the activities of NFOA, et al., constituted an immediate danger to the public health, safety or welfare of Florida consumers. OIR further found that, in concert, NFOA, et al., were “soliciting, misleading, coercing and enticing elderly Florida consumers to transfer and convey legitimate income tax deferred annuities for the benefit of themselves and their heirs to NFOA in exchange for charitable term-certain annuities”; and that NFOA, et al., had violated provisions of the Florida Insurance Code, including Sections 624.401 and 626.901, Florida Statutes. NFOA has never held a license or Certificate of Authority to transact insurance or annuity contracts in Florida, nor has NFOA ever been registered, pursuant to Section 627.481, Florida Statutes, for purposes of donor annuity agreements. NFOA was never a registered corporation with the Florida Department of State, Division of Corporations. On May 11, 2007, NFOA appealed OIR’s IFO to the First District Court of Appeal of Florida (1st DCA). The 1st DCA dismissed NFOA’s appeal on July 24, 2007. Therefore, NFOA operated an as unauthorized insurer in Florida. On May 17, 2007, the IRS sent a letter to the Texas Department of Insurance stating that NFOA was not classified as an organization exempt from Federal Income Tax as an organization described in Section 501(c)(3) of the IRC. On May 23, 2007, the DCI filed a Verified Petition for Appointment of Receiver for Purposes of Liquidation of National Foundation of America; Immediate and Permanent Injunctive Relief; Request for Expedited Hearing, in the matter of Newman v. National Foundation of America, Richard K. Olive, Susan L. Olive, Breanna McIntyre, Kenny M. Marks, and Hunter Daniel, Chancery Court of the State of Tennessee (Chancery Court), Twentieth Judicial District, Davidson County, Case No. 07-1163-IV. The Verified Petition states, at paragraph 30: NFOA’s contracts reflect an express written term that is recognized by the IRS as a charitable non-profit organization under Section 501(c)(3) of the Internal Revenue Code (Prosser, attachment 4), and the NFOA represents in multiple statements and materials that the contract will entitle the customers to potential generous tax deductions related to that status. The IRS states that it has granted NFOA no such designation. The deceptive underpinning related to NFOA’s supposed tax favored treatment of its contracts permeates its entire business model and sales pitch. This misrepresentation has materially and irreparably harmed and has the potential to harm financially all its customers and the intended beneficiaries of the contracts. These harms are as varied in nature and degree as the circumstances of all those individual’s tax conditions, the assets turned into NFOA, and the extent to which they have entrusted their money and keyed their tax status and consequences to reliance on such an organization. On August 2, 2007, the Commissioner for the Tennessee DCI, having determined that NFOA was insolvent with a financial deficiency of at least $4,300,000, filed a Verified Petition to Convert Rehabilitation by Entry of Final Order of Liquidation, Finding of Insolvency, and Injunction, in the matter of Newman v. National Foundation of America, et al. On September 11, 2007, pursuant to a Final Order of Liquidation and Injunction entered in the matter of Newman v. National Foundation of America et al., the Chancery Court placed NFOA into receivership after finding that the continued rehabilitation of NFOA would be hazardous, financially and otherwise, and would present increased risk of loss to the company’s creditors, policy holders, and the general public. On February 6, 2008, the IRS sent a letter to the court appointed Tennessee DCI Receiver (Receiver) for NFOA stating that NFOA does not qualify for exemption from Federal income tax as an organization described in Section 501(c)(3) of the IRC. The IRS, in determining that NFOA did not qualify for tax exempt status, stated that the sale of NFOA annuity plans has a “distinctive commercial hue”, and concluded that NFOA was primarily involved in the sale of annuity plans that “constitute a trade or business without a charitable program commensurate in scope with the business of selling these plans.” The IRS letter also provides that consumers may not take deductions on their income tax returns for contributions made to NFOA. Insurance Agent’s Duties An insurance agent has a fiduciary duty to his clients to ensure that an insurer is authorized or otherwise approved as an insurer in Florida by OIR prior to the insurance agent selling the insurer’s product to his clients. There are several methods by which an insurance agent could verify whether or not an insurer was authorized or otherwise approved (hereinafter: “authorized”) as an insurer in Florida by OIR. It is insufficient for an insurance agent to depend on the assurances of his insurance business peers as to whether an insurer needs to be authorized in Florida. Due to the importance of income tax considerations in a consumer’s decision making process as to whether or not to purchase an insurance product, an insurance agent has a fiduciary duty to his clients to verify the validity of any representations that an insurer’s product has an IRS 501(c)(3) tax exempt status, prior to the insurance agent selling the product to his clients. There are several methods by which an insurance agent could verify whether or not an insurer has an IRS 501(c)(3) tax exempt status. Respondent admitted, in his testimony, that he had depended on the assurances of others and assumed that NFOA did not need to be authorized as an insurer in Florida. Respondent testified it was his understanding that only insurance companies sell annuities; that NFOA was not an insurer; and therefore, NFOA did not need to be licensed as a Florida insurer. Respondent did not inquire of the Florida OIR whether or not NFOA was authorized to do business in the State of Florida. However, Respondent admitted that the NOFA product he sold “mirrored” an annuity product. Respondent testified that he had verified (by phone, in writing, and the Internet) with the IRS that NFOA had applied for 501(c)(3) tax exempt status. However, Respondent was aware that the tax exempt status had not been granted to NFOA. Respondent knew income tax considerations were materially important to his clients. However, none of the NFOA materials or any Florida consumer contracts signed by Respondent and his clients contain any disclaimer language informing consumers that the 501(c)(3) tax exempt status had been applied for but had yet to be granted by the IRS. Respondent testified that he made use of the Internet to obtain information. However, Respondent failed to use the Internet to find out that the State of Washington Office of Insurance Commissioner entered an Order of Cease and Desist on September 18, 2006, against NFOA based on NFOA not having a certificate of authority as an insurer and because NFOA did not have a 501(c)(3) tax exemption. As is noted below, the filing date of the Washington Order to Cease and Desist, preceded in time all but two of Respondent’s NFOA sales to Florida consumers. Respondent received commissions totaling $171,328.18 for selling NFOA annuities to Florida consumers. Respondent failed to disgorge any of these commissions to the Receiver for NFOA in the state of Tennessee. Re: Count I: Consumer – Yvette Potvin On November 30, 2006, Respondent solicited and induced Yvette Potvin of Casselberry, Florida, then age 81, to transfer or otherwise surrender ownership of her existing annuity contract with Allianz Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. Potvin that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew that NFOA had not been approved for tax exempt status by the IRS. Based upon Respondent’s transaction of insurance, Ms. Potvin transferred to NFOA and is anticipated to lose approximately $10,410.42. This amount includes a surrender penalty incurred for transferring her original Allianz annuity to NFOA, and after receiving partial refunds by the Receiver. Based upon Respondent’s transaction of insurance with Ms. Potvin, Respondent was paid a commission of $3,682.89 by NFOA. Re: Count II: Consumer – Edna Bishop On January 18, 2007, Respondent solicited and induced Edna Bishop of Orlando, Florida, then aged 89, to transfer or otherwise surrender ownership of her existing annuity contract with American Equity Investment Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Ultimately, this transaction did not close. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. Bishop that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance with Ms. Bishop, Respondent was paid a commission of $8,185.35 by NFOA, even though the transaction was not completed. Re: Count III: Consumer – Genevieve McCann On December 14, 2006, Respondent solicited and induced Genevieve McCann of Fern Park, Florida, then aged 85, to transfer or otherwise surrender ownership of her existing annuity contract with American Equity Investment Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. McCann that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance, Ms. McCann is anticipated to lose approximately $6,100.23. The loss consists of $20,933.04, the amount transferred to NFOA, less $1,742.85 (installment payments made by NFOA to Ms. McCann); $12,473.62 (the first payment sent by Receiver); and $2,686.63 (the second payment sent by Receiver). Ms. McCann lost $2,070.29 through surrender charges incurred for transferring her original American Equity annuity to NFOA. If the surrender penalty is excluded from the calculation, Ms. McCann’s loss is $4,029.94. Based upon Respondent’s transaction of insurance with Ms. McCann, Respondent was paid a commission of $1,879.52 by NFOA. Re: Count IV: Consumer – Lenora Bricker On or about November 30, 2006, Respondent solicited and induced Lenora Bricker of Winter Haven, Florida, then aged 87, to transfer or otherwise surrender ownership of her existing annuity contract with American Equity Investment Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Ultimately, this transaction did not close. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. Bricker that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance with Ms. Bricker, Respondent was paid a commission of $1,085.17 by NFOA, even though the transaction was not completed. Re: Count V: Consumer – Louise Blevins On or about November 30, 2006, Respondent solicited and induced Louise Blevins of Longwood, Florida, then aged 81, to transfer or otherwise surrender ownership of her existing annuity contract with American Equity Investment Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Ultimately, this transaction did not close. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. Blevins that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance with Ms. Bricker, Respondent was paid a commission of $5,469.09 by NFOA, even though the transaction did not close. Re: Count VI: Consumer – Audrey Piel On December 14, 2006, Respondent solicited and induced Audrey Piel of Maitland, Florida, then aged 81, to transfer or otherwise surrender ownership of her existing annuity contract with American Equity Investment Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. Piel that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance, Ms. Piel is anticipated to lose approximately $5,594.24. The loss consists of $21,089.17, the amount transferred to NFOA; less $996.35 (installment payments made by NFOA to Ms. Piel); $13.645.33 (the first payment sent by Receiver); and $2,938.99, (the second payment sent by Receiver). Ms. Piel lost $2,085.74 through surrender charges incurred for transferring her original American Equity annuity to NFOA. If the surrender penalty is excluded from the calculation, Ms. Piel’s loss is $3,508.50. Based upon Respondent’s transaction of insurance with Ms. Piel, Respondent was paid a commission of $1,839.54 by NFOA. Re: Count VII: Consumer – John Bartlett On February 13, 2007, Respondent solicited and induced John Bartlett of Orlando, Florida, then age 75, to transfer or otherwise surrender ownership of his existing annuity contract with American Equity Investment Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Ultimately, this transaction did not close. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Mr. Bartlett that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance with Mr. Bartlett, Respondent was paid a commission of approximately $16,385.56 by NFOA, even though the transaction was not completed. Re: Count VIII: Consumer – Lilla Dama On January 18, Respondent solicited and induced Lilla Dama of Orlando, Florida, then aged 86, to transfer or otherwise surrender ownership of her existing annuity contract with American Equity Investment Life Insurance Company in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Ultimately, this transaction did not close. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. Dama that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance with Ms. Dama, Respondent was paid a commission of approximately $2,757.52 by NFOA, even though the transaction was not completed. Re: Count IX: Consumer – Agnes Burns On February 28, 2007, and April 2, 2007, Respondent solicited and induced Agnes Burns of Orlando, Florida, then aged 87, to transfer or otherwise surrender ownership of her existing annuity contract with American Equity Investment Life Insurance Company and New York Life Insurance and Annuity Company, respectively, in return for an NFOA annuity. The NFOA agreement that the consumer entered into, and which was signed by Respondent, is dated subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Respondent, by use of the NFOA installment plan agreement, knowingly misrepresented to Ms. Burns that NFOA was a charitable non-profit organization under Section 501(c)(3) of the IRC, even though Respondent knew or should have known that NFOA was not a tax exempt corporation. Based upon Respondent’s transaction of insurance, Ms. Burns is anticipated to lose approximately $77,509.17. The loss consists of $335,070.29, the amount transferred to NFOA; less $18,363.66 (installment payments sent by NFOA to Ms. Burns); $205,859.31 (the first payment sent by Receiver); and $44,338.93 (the second payment sent by Receiver). A surrender penalty of $11,000.78 was incurred by Ms Burns for transferring her original annuities to NFOA. If the surrender penalty is excluded from the calculation, Ms. Burns’ loss is $66,508.39. Based upon Respondent’s transaction of insurance with Ms. Burns, Respondent was paid a commission of $30,080.00 by NFOA. Re: Count X: Consumers – Ms. Buchanan; Ms. Golus, and Mr. Owens Respondent solicited and induced Elizabeth Buchanan, aged 42, of Bradenton, Florida; Nancy Golus, aged 59, of Palmetto, Florida; and Herbert Owens, aged 86, of St. Petersburg, Florida, to transfer or otherwise surrender ownership of their existing annuity contracts in return for an NFOA annuities. As to the the NFOA agreement that Mr. Owens entered into, and which was signed by Respondent, the date of the agreement is subsequent to the State of Washington Order to Cease and Desist that was filed against NFOA. The NFOA agreements that Ms. Buchanan and Ms. Golus entered into were dated prior to the State of Washington’s Order to Cease and Desist. Respondent knew or reasonably should have known that NFOA was not an authorized insurer in Florida. Based upon Respondent’s transactions of insurance, Ms. Buchanan is anticipated to lose approximately $89,031.12. The loss consists of $162,445.60, the amount transferred to NFOA; less $20,000.00 (installment payments sent by NFOA to Ms. Buchanan); $92,589.64 (the first payment sent by Receiver); and $19,942.38 (the second payment sent by Receiver). Ms. Buchanan suffered $59,117.54 in losses from surrender charges incurred. Even after partial refunds by the DCI Receiver and the surrender penalty are excluded from the calculation, Ms. Buchanan’s loss is still $29,913.58. Ms. Golus is anticipated to lose approximately $146,027.18, the amount transferred to NFOA. Ms. Golus received $94,917.67 (the first payment by Receiver) and $20,443.81 (the second payment by Receiver). However, Ms. Golus suffered $53,152.47 in surrender charges incurred. Even after partial refunds by the Receiver and the surrender penalty are excluded from the calculation, Ms. Golus’ loss is $30,665.67. Mr. Owens is anticipated to lose approximately $10,976.33. The loss consists of $54,743.52, the amount transferred to NFOA; less $5,108.40 (installment payments sent by NFOA to Mr. Owens); $32,262.83 (the first payment by Receiver); and, $6,948.92 (the second payment sent by Receiver). Mr. Owens incurred $552.96 in surrender charges. Even after partial refunds by the Receiver and the surrender penalty are excluded from the calculation, Mr. Owens’ loss is still $10,423.37. In each and every count, Petitioner proved by clear and convincing evidence that: Respondent directly or indirectly represented or aided an unauthorized insurer to do business in Florida. Respondent knew or reasonably should have known that the annuity contracts he contracted with clients were with an unauthorized insurer. Respondent knowingly placed before the public a statement, assertion, or representation with respect to the business of insurance that was untrue, deceptive or misleading. Respondent knowingly caused to be made, published, disseminated, circulated, delivered, or placed before the public a false material statement. Respondent demonstrated a lack of fitness and trustworthiness to engage in the business of insurance. Respondent engaged in unfair and deceptive practices or showed himself to be a source of injury or loss to the public.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Chief Financial Officer enter a final order finding that: Respondent violated Subsections 626.901(1), 626.901(2), 626.9541(1)(b)4., 626.9541(1)(e)1.e., 626.611(7), 626.621(2), and 626.621(6), Florida Statutes, as charged in Counts I-X of the Second Amended Administrative Complaint; Revoking each and every one of Respondent’s licenses and appointments issued or granted under or pursuant to the Florida Insurance Code; and Providing that if Respondent, subsequent to revocation, makes application to Petitioner for any licensure, a new license will not be granted if Respondent fails to prove that he has otherwise satisfied the financial losses of his NFOA clients, or if Respondent otherwise fails to establish that he is eligible for licensure. DONE AND ENTERED this 10th day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2009.
Findings Of Fact The Respondent, Mary Lou Finn, is licensed by Petitioner as a general lines insurance agent. During the period of May 5, 1979 until November 1, 1980, she was the agent of record at the Ocala, Florida, office of University Insurance. During that time she held a 220 license and was the only agent responsible for that office. From April 1979 until November 1, 1980 Mr. Robert Vittitoe was the manager and owner of the Ocala office. Through an arrangement, which Respondent described as a consulting contract, she supervised the operation of the office. She also had a consulting contract but no supervising duties with University Insurance offices in Lake City and Tallahassee. In the course of her supervision and consulting advice for the University Insurance offices Ms. Finn issued a blizzard of memoranda on the operation of those offices. One of the memoranda which was received at the Ocala office on August 27, 1979 gave instructions concerning the sale of automobile motor club memberships. It states in pertinent part: The new yellow I.D. cards are for the following reason--When you write PIP only and a club, do not tell the insured he has towing and road service. Simply quote him the total rate, get all required signatures and TYPE them the yellow ID. card. When PIP policy and club policy [come] in we WILL NOT MAIL. We will keep their policies in their file. This will save on cancelled clubs when insured sees everything, plus it will save loads of postage. Remember - DO NOT MENTION motor club, towing and road svc., etc. They do not have to take the club anymore. Simply say the coverage they want (PIP) is $44.00 or whatever get signatures, type them their card and say good-bye. (Get money) This memorandum was shortly followed by one dated September 2, 1979, which said in part: In Gainesville we are not mailing policies. Instead having insured pick up. We will try it & see. Last week I sent a memo to you to explain. Had some calls that you didn't understand memo & thought I meant keep policies in file NO! No one has enough room in file cases for that. It is to save on postage. If you want to save yourselves money give it a try Re: The motor club, don't overemphasize the towing and road svc. We have too many claims. Explain all the coverages and emphasize the bail bond, legal fees, trip routing etc. Subsequently by a memorandum dated September 26, 1979, Respondent sent further instructions regarding motor clubs. The memorandum stated: When you write a motor club with other coverages and finance, be sure to list premiums separately on finance contract and get all signatures incl. club app. Make sure that the ins. knows all coverages on club. We are having a lot of towing claims and company is complaining so go into detail on other coverages as well. The last memorandum concerning this issue sent from Respondent to the Ocala office was written in the early part of 1980. It says: Please use the small statements for insureds to sign in addition to motor club app. so they are well aware of what they are purchasing. Will protect you too. Make sure they understand all coverages, BI, PD, PIP, COLL, COMP, UM, motor club if written & explain all deductibles. VERY IMPORTANT. 3 weeks after they leave office they won't know what they have, so be explicit. Get all signatures required especially motor club apps. & the statement that insured understands they have motor club & its [sic] a separate charge. The foregoing memoranda were sent by Ms. Finn with the intent that the sales personnel at the Ocala office follow her instructions contained therein. I find that the memorandum received on August 27, 1979 constituted an instruction to misrepresent the full nature of the insurance purchase transaction between the Ocala office and its customers. Ms. Finn's instructions were that "when PIP policy and club policy [come] in we will not mail. We will keep their policies in their file. This will save on cancelled clubs when the insureds see everything, plus it will save loads of postage." The implication is clear that the insureds are not to know that they have purchased automobile club coverage so they will not cancel it. This finding is supported by the following instruction: "Remember - DO NOT MENTION motor club, towing and road svc., etc. They do not have to take the club anymore. Simply say the coverage they want (PIP) is $44.00...". The three later memoranda in varying degrees countermanded the instructions of the August 27 memo. As soon as September 2, 1979 Respondent instructed the Ocala office to explain all the coverages and emphasize the bail bond, legal fees and trip routing features of the motor club memberships. If the sales people followed this directive they would necessarily inform the applicants that they were purchasing motor club memberships. The taint of the August 27 memorandum which arises from the instruction not to mail out insurance policies was eliminated by the September 2, 1979 memorandum which suggests that rather than mailing policies, the office request the insureds to pick the policies up. I find by September 26, 1979 Respondent was no longer instructing the Ocala office to "slide" motor clubs. 2/ Her memorandum of that date required listing the motor club fee separately on the premium finance agreements signed by the applicants. That instruction is incompatible with sliding. By the time her memorandum of early 1980 was written, Ms. Finn was instructing the Ocala office to add additional statements to insure that the insured knew they were purchasing motor club memberships and it was a separate charge. At the final hearing Ms. Finn gave testimony in an attempt to resolve the contradiction between the August 27, 1979 memorandum and the subsequent three memoranda received into evidence. She stated she intended by the August 27, 1979 memorandum to have the sales personnel only de-emphasize the towing and road service portion of the motor club memberships being purchased. While her explanation coincides directly with the instructions in the September 2, 1979 memorandum, it does not adequately explain the clear language of the instructions received in Ocala on August 27, 1979. Ms. Finn's testimony on that point is not accepted as credible. This finding rests in part on the evasiveness and demeanor the witness showed in answering both direct and cross- examination questions during her testimony. Individual Transactions On June 4, 1979 Ms. Lillie Mae Young purchased an automobile insurance policy at University Insurance in Ocala. 3/ As part of the transaction she also purchased a membership in the Nation Motor Club. During the course of that transaction she executed three documents: an insurance application, a Nation Motor Club application, and a premium finance agreement. When Ms. Young went to the Ocala office of University Insurance she asked to purchase the minimum insurance required by law to have her automobile registered. Whoever sold her the insurance did not mention to Ms. Young that she was purchasing a motor club membership. Ms. Young did not carefully read the documents she executed when she purchased her insurance. She believed that the person who sold her the insurance was a man. If Ms. Young had known that she was paying $35 for a motor club membership, she would not have bought it. On June 2, 1979, Ms. Willie Mae McCray purchased personal injury protection and bodily injury insurance for $163 at the Ocala office of University Insurance. As part of that transaction she also purchased a membership in the Nation Motor Club for $35. In the course of the transaction she executed three documents: an insurance application, a Nation Motor Club application, and a premium finance agreement. Both the motor club application and the premium finance agreement indicated the fee for the motor club was $35, but the evidence is not clear whether these documents were completed when Ms. McCray executed them. When Ms. McCray went to the Ocala office she asked to purchase PIP insurance. She was told by the salesperson that she could not buy just PIP alone, but must also purchase "liability". Ms. McCray agreed to purchase both coverages because she needed to register her automobile. She was not aware on June 2, 1979 that she had purchased a motor club membership. She was not told by the salesperson, who was not Ms. Finn, that she was making such a purchase. If Ms. McCray had known that the motor club membership was a $35 charge over and above her insurance premium she would not have paid it. At the time Ms. McCray bought her insurance she signed the documents mentioned above without reading them because she was in a hurry to get her insurance. She has difficult reading but did not mention her difficulty to the salesperson. On June 15, 1979 Mr. Alton Starker purchased personal injury protection and bodily injury insurance for $183 at University Insurance in Ocala. As part of that transaction he also purchased a membership in the Nation Motor Club for $35. In the course of the transaction he executed three documents: an insurance application, a Nation Motor Club application, and a premium finance agreement. The Nation Motor Club application which he signed indicated the club membership fee was $35. There is no evidence on whether the application was filled in at the time he signed it. There are two duplicate parts of the premium finance agreement in evidence. One part, the assured's copy, has only the dollar amounts filled in and Mr. Starker's signature; the other part, the agent's copy, is completely filled in and shows a $35 charge for Nation Motor Club membership. These two copies are part of a manifold tear- apart form. The original was not in evidence; therefore, it is impossible to tell which part of the premium finance agreement was filled in at the time Mr. Starker executed the original. The copy which was given to him to retain for his records was the assured's copy which does not show an itemized charge for the motor club. Mr. Starker's memory of the transaction is not accepted as credible. His testimony at the final hearing was impeached by a prior inconsistent statement he made in a discovery deposition. He denied signing the insurance application, yet without his signature he could not have purchased insurance which he testified he bought. On May 5, 1980 Mr. James Clark purchased personal injury protection and bodily injury insurance for $274 from University Insurance in Ocala. As part of the transaction he also purchased a membership in the Associated Motor Club for $35. In the course of that transaction he executed two documents: an insurance application and a premium finance agreement. The finance agreement indicated the charge for the motor club was $35 but there is no evidence on whether the document was filled in at the time Mr. Clark signed it. When Mr. Clark, who was accompanied by his wife, went to the Ocala office he asked to purchase the insurance necessary to "cover the vehicle, that's required for the law, and that was it." The salesperson who handled Mr. Clark's purchase did not show him anything which Mr. Clark thought indicated he purchased a motor club membership. Ms. Finn was not the salesperson in his transaction. Mr. Clark did not know he had paid a motor club membership fee until the investigation of this case by Petitioner began. On December 14, 1979 Mr. Mark Alfarone purchased bodily injury, liability, property damage liability, comprehensive including collision, and uninsured motorist coverage for $579 at University Insurance in Ocala. As part of the transaction he also purchased a membership in the Nation Motor Club for $35. In the course of the transaction he executed three documents: an insurance application, a premium finance agreement and a Nation Motor Club application. Both the motor club application and the premium finance agreement indicated that the membership fee was $35 but there is no evidence whether the documents were filled in at the time Mr. Alfarone executed them. When Mr. Alfarone went to purchase his insurance he asked for full coverage because the new Corvette he was insuring was financed. He did not request a motor club membership. He already belonged to AAA. Sharyn Vittitoe, the wife of the office manager Robert Vittitoe, handled his purchase. Mr. Alfarone did not read all the documents Ms. Vittitoe handed him to sign. She did not fail to answer any of his questions about his coverage which she explained to him. He did not tell her that he was a member of AAA. At the time he purchased his insurance Mr. Alfarone was not aware that he was charged for a motor club. He does not recall anything about a motor club being discussed then. He also does not recall receiving any documentation in the mail which identified him as a member of the Nation Motor Club. Mr. Alfarone does not recall signing any document for the purchase of a motor club membership although in his cross-examination he admitted probably seeing the Nation Motor Club application before he signed it. On September 26, 1979 Mr. James Curry purchased personal injury protection and bodily injury insurance on two automobiles for $299 at University Insurance in Ocala. As part of that transaction he also purchased two memberships, one per car, in the Nation Motor Club for a total of $53. In the course of the transaction he executed four documents: two Nation Motor Club applications, an insurance application and a premium finance agreement. One motor club application indicated that the membership fee was $35. The other application showed a fee of $18 for a second car. The premium finance agreement indicated a charge of $53 for "NMC". There is no evidence on whether the documents were filled in at the time Mr. Curry signed them. The evidence does not show what type of coverage Mr. Curry requested when he went to the Ocala office. At the final hearing he testified as follows: (Mr. Sumner) Q All right. Did you have any particular insurance coverages in mind? (Mr. Curry) A Well, I just wanted some where I could get my tag and, you know, cover some liability. (Mr. Sumner) Q Did you explain that to the people at the University Insurance Agency? (Mr. Curry) A I don't know what I did. I don't know, really I don't. But I just told them I wanted some coverage, you know, to protect me on the road and, you know-- He did not remember the details of what happened during the transaction. He did not remember signing either his insurance application or his premium finance agreement. He did not read the documents he was asked to sign. At the end of the transaction he did not understand that he had purchased motor club membership. On June 18, 1979 Ms. Betty Jean Nobles purchased personal injury protection and bodily injury insurance for $163 at University Insurance in Ocala. As part of that transaction she also purchased a membership in the Nation Motor Club for $35. In the course of her transaction she executed three documents: a premium finance agreement, an insurance application, and a Nation Motor Club application. Both the premium finance agreement and the motor club application indicated that the motor club membership fee was $35 but there is no evidence on whether the documents were filled in when Ms. Nobles signed them. Ms. Nobles' testimony about the details of her insurance purchase has not given any weight here because at the final hearing she did not remember the transaction well. The following testimony is typical of her recollection: (Mr. Sumner) Q Did you have any particular insurance coverages in mind when you bought -- went down there to buy insurance? (Ms. Nobles) A Not really, just full coverage. I needed insurance for a tag. (Mr. Sumner) Q Did you ask for full coverage, or did you explain what you wanted to the people there? (Ms. Nobles) A Well, I think I asked -- I really don't remember. I think I asked for full coverage. I didn't ask for insurance just for a tag, no. (Mr. Sumner) Q Okay. Miss Nobles, it's also been established that at the time you bought your automobile insurance, that you were charged for an automobile club membership. Were you aware that you had paid for that particular item at the time that you bought your insurance? (Ms. Nobles) A Well, to tell the truth, I can't say yes, and I can't say no, because I don't remember asking for one, no. On July 6, 1979 Mr. Vernajor Parker purchased personal injury protection and bodily injury insurance for $293 from University Insurance in Ocala. As part of that transaction he also purchased a membership in the Nation Motor Club for $35. In the course of the transaction he executed three documents: an insurance application, a premium finance agreement and a Nation Motor Club application. Both the premium finance agreement and the motor club application indicated that the motor club membership fee was $35. There is no evidence on whether or not the motor club application and the premium finance agreement were completely filled in at the time Mr. Parker signed them. 4/ Mr. Parker went to the Ocala office with the intention of purchasing the minimum insurance he needed to register his car. He does not remember whether or not the man who sold him his insurance discussed towing and road service with him. Mr. Parker remembers reading what he considered the important parts of all the documents he signed. The insurance policies of Mr. Parker, Mr. Curry and Ms. Young were not delivered to them but were retained in their file at University Insurance in Ocala. The Nation Motor Club Service contracts of Ms. Young, Mr. Alfarone and Mr. Parker were similarly retained in their files. These documents are necessary to a full understanding of the insurance coverage and motor club benefits the insureds purchased. Because certain dates in these findings are crucial to the following legal conclusions the dates are summarized here: Chronology of Transactions and Memoranda June 2, 1979 Willie Mae McCray June 4, 1979 Lillie Mae Young June 15, 1979 Alton Louis Starker June 18, 1979 Betty Jean Nobles July 6, 1979 Vernajor K. Parker August 27, 1979 Memo received instructing no disclosure of motor clubs. September 2, 1979 Memo written instructing explain all coverages but do not overemphasize towing and road service. September 26, 1979 Memo written instructing make sure insureds know all coverages on motor clubs. September 26, 1979 James Alfred Curry, Jr. December 14, 1979 Mark Alfarone Early 1980 Memo written instructing use small statements that applicants understand they have purchased a motor club for a separate charge. May 5, 1980 James Franklin Clark CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 120.65, Florida Statutes (1981). By its Amended Administrative Complaint the Department seeks to suspend or revoke Respondent's license as a general lines insurance agent. Authorization for such action is found in both Sections 626.611 (compulsory revocation or suspension) and 626.621 (discretionary revocation or suspension), Florida Statutes. 5/ As alleged by the Administrative Complaint the pertinent portions of Section 626.611 are: The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent ... and it shall suspend or revoke the eligibility to hold a license or permit of any such persons if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist: * * * If the license or permit is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising. * * * (7) For demonstrated lack of fitness or trustworthiness to engage in the business of insurance. * * * (9) Fraudulent or dishonest practices in the conduct of business under the license or permit. * * * (13) Willful failure to comply with, or willful violation of, any proper order, rule, or regulation of the department or willful violation of any provision of this code. Section 626.621, Florida Statutes provides: The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent...and it may suspend or revoke the eligibility to hold a license or permit of any such persons if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611: * * * (2) Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or permit. * * * (6) If in the conduct of business under the license or permit he has engaged in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part VII of this chapter, or has otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest. The relevant provisions of Part VII of Chapter 626 referenced above include Sections 626.9521 and 626.9541, Florida Statutes (1981). Section 626.9521 provides in part: No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to s.626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance. Any person who violates any provision of this part shall be subject to the penalties provided in s.627.381. Section 626.9541 explicates the alleged unfair competition charged in the Amended Administrative Complaint as follows: The following are defined as unfair methods of competition and unfair or deceptive acts or practices: * * * Filing with any supervisory or other public official, Making, publishing, disseminating, circulating, Delivering to any person, Placing before the public, Causing, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement. * * * Knowingly making false or fraudulent statements or representations on, or relative to, an application for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual. * * * Knowingly collecting as a premium or charge for insurance any sum in excess of or less than the premium or charge applicable to such insurance, in accordance with the applicable classifications and rates as filed with and approved by the department, and as specified in the policy; or, in cases when classifications, premiums, or rates are not required by this code to be so filed and approved, premiums and charges in excess of or less than those specified in the policy and as fixed by the insurer. This provision shall not be deemed to prohibit the charging and collection, by surplus lines agents licensed under part VI of this' chapter, of the amount of applicable state and federal taxes in addition to the premium required by the insurer. Compared with the foregoing legal labyrinth the factual allegations of the Amended Complaint are simple. Eight transactions are charged. The allegations as to each transaction are the same except for the dates and the customers. The following count is representative: COUNT VI That you, MARY LOU FINN, as the general lines agent of record for the University Insurance Agency, Ocala, Florida, or one of your agents or employees acting under your direction or supervision, on or about December 14, 1979, sold to Mark Alfarone automobile insurance coverage. That you, MARY LOU FINN, or one of your agents or employees acting under your direction or supervision, charged Mark Alfarone for membership in an automobile club in the price of his automobile insurance premium without his knowledge or consent. That Mark Alfarone neither requested nor desired to pay additional monies for membership in an automobile club and would not have knowingly purchased the same at additional cost. IT IS THEREFORE CHARGED that in the conduct of business under your license, you, MARY LOU FINN: [Legal Conclusions Follow] Standard Of Proof In license revocation cases such as this the Petitioner has the burden to prove the allegations of the Amended Administrative Complaint. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st D.C.A. 1980). The standard by which the agency's proof is tested has not been clear in Florida. Fact finders such as judges, jurors and hearing officers are familiar with three standards of proof: preponderance of the evidence, clear and convincing, and beyond and to the exclusion of a reasonable doubt. Traditionally findings of fact once made by the fact finder have been reviewed by appellate bodies under the test of "competent substantial evidence." The fact finding tests are essentially weighing devices. Because appellate bodies do not reweigh evidence, 6/ they review a record only to determine if someplace in that record there appears evidence of sufficient reliability (competent substantial evidence) which should be allowed to support a factual determination. Town of Indialantic v. Nance, 400 So.2d 37, 40 (Fla. 5th D.C.A. 1981); Hughes v Office of the Comptroller, So.2d 6 FLW 2490 (Fla. 2nd D.C.A. November 18, 1981); 5 Am Jur.2d, Appeal and Error 839 at 282 (1962). Once reliable evidence can be gleaned from the record which supports a finding, the appellate body cannot upset that finding. 5 Am Jur.2d, Appeal and Error 882 (1962). Unfortunately the foregoing concepts have been confused in recent opinions concerning professional license revocation cases. Gans v. Department of Professional and Occupational Regulation, 2 FALR 239J (Fla. 3rd D.C.A. April 29, 1980) is an example. There the appellant argued in a license revocation case that a preponderance of the evidence test had been used by the Hearing Officer instead of the clear and convincing test, contrary to the holding of Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd D.C.A. 1975). In his opinion for the Court Judge Hendry asserted that the preponderance of the evidence is the correct test to be used in an administrative proceeding. Judge Nesbitt, specially concurring, argued that the proper test was competent substantial evidence. Judge Hubbart dissented. He correctly reasoned that competent substantial evidence was not a test to be employed by fact finders but was really a standard of review by appellate bodies. Because his argument cannot be better restated by the undersigned, it is quoted here: Finally, I find nothing in Florida's Administrative Procedure Act which dictates a contrary result. It is true that an administrative agency in reviewing the findings of fact of a hearing examiner, as contained in the recommended order, may not reject or modify such findings unless it first determines that the findings of fact were not based on "competent, substantial evidence" in the record; Section 120.57(1)(b)9, Fla. Stat. (1979); moreover, an appellate court in reviewing final administrative agency actions may not substitute its judgment for that of the agency as to the weight of evidence on the disputed findings of fact and is authorized to set aside such agency action only if it finds that such action depends on a finding of fact that is not supported by a "competent, substantial evidence" in the record. Section 120.68(10), Fla. Stat. (1979). These are, however, standards by which an administrative agency and an appellate court must review findings of fact previously made by an hearing examiner or other administrative finder of fact; they do not speak to the burden of proof which a hearing examiner, as here, must employ in making his findings of fact after a full evidentiary hearing. As such, these review standards have no relevance to the central issue of this case and in no sense conflict with the rule of the Walker decision. In this regard, I find the following principle of law entirely controlling: "There is a distinction between the standard by which an administrative tribunal measures the proof presented to it. . .and the standard by which a reviewing court measures the correctness of an administrative order under review... See DeGroot v. Sheffield, (Fla. 1957), 95 So.2d 912, 916. The functions of the two tribunals are dissimilar and the standards are not interchangeable." Florida Dep't of Health and Rehabilitative Servs., Div. of Health v. Career Service Comm'n of the State of Fla., Dep't of Admin., 289 So.2d 412, 415, n.2 (Fla. 4th DCA 1974), quoted with approval in Fitzpatrick v. City of Miami Beach, 328 So.2d 578, 579 (Fla. 3d DCA 1976). It should be noted that the Hearing Officer in the Gans case actually employed a competent substantial evidence test. Board of Chiropractic Examiners v. Gans, Case No. 78-101 (Florida Division of Administrative Hearings, Recommended Order October 2, 1978). The District Court of Appeal, Third District, became aware of that fact after issuing its original opinion which was subsequently withdrawn. The replacement opinion, with all three judges in agreement states: The administrative order under review is affirmed upon a holding that: (a) the standard of proof employed by the hearing examiner in reaching the findings of fact in this cause was not one of preponderance of the evidence, as both parties to this appeal have mistakenly assumed, and, accordingly, we have no occasion to determine whether the utilization of such a standard would in the abstract, constitute reversible error, as urged by appellant, it being abundantly clear that such an alleged error did not occur in this case. Gans v. Department of Professional and Occupational Regulation, 390 So.2d 107 (Fla. 3rd D.C.A. 1980). The opinions in Gans were followed by Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st D.C.A. 1981). The Court there held that the Hearing Officer (whose recommended order was adopted by the Department) erred in finding that Bowling had violated statutes regulating the conduct of insurance agents. In deciding the case the court properly applied the appropriate review standard, competent substantial evidence, and found that there was insufficient evidence in the record to support certain findings. Unfortunately the opinion contains language which can be interpreted to mean that the competent substantial evidence test should be used to determine the existence or nonexistence of facts during an administrative hearing. See for example, Smith v. School Board of Leon County, 405 So.2d 183, 186 (Fla. 1st D.C.A. 1981); Office of Treasurer, Insurance Commissioner v. Azis, Case No. 80- 1278 (Florida Division of Administrative Hearings Recommended Order, June 3, 1981); Department of Professional Regulation, Board of Real Estate v. Miller, 3 FALR 2317A, 2319A (Florida Division of Administrative Hearings Recommended Order, August 14, 1981). It frequently happens during a trial or a hearing that there is competent substantial evidence to support the existence of an alleged fact and there is also competent substantial evidence to support the non-existence of that fact. Because of its roots in the review process, competent substantial evidence provides no assistance to the fact finder in weighing evidence which may be equally competent and substantial yet contradictory. The task of the fact finder is to resolve the contradiction. This is where the traditional standards of proof give direction. The fact finder knows if the appropriate standard is preponderance of the evidence, then one scintilla of evidence more in favor of the existence of a fact than that evidence to the contrary will require him to find the fact exists. If the appropriate test is beyond and to the exclusion of the reasonable doubt he knows the evidence in favor of a fact must be so overwhelming as to exclude any reasonable contrary conclusion. For the foregoing reasons I conclude that competent substantial evidence as discussed in Bowling is not the appropriate standard of proof to be used in this proceeding. Since license revocation cases are penal in nature, 7/ clear and convincing evidence is the applicable criterion for determining whether or not Petitioner has established the facts alleged in its Amended Administrative Complaint. Walker v. Board of Optometry, 322 So.2d 612 (Fla. 3rd D.C.A. 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd D.C.A. 1966). Proof Of Allegations The Respondent had no direct contact with any of the alleged customers of University Insurance in Ocala. None of the insurance purchasers remembers Ms. Finn as the person who sold him his policy. Because they were not called as witnesses there is no evidence from the Ocala salespeople who actually had contact with the complaining witnesses that Ms. Finn told them to "slide" motor clubs. The only link between Ms. Finn and the transactions alleged in the Administrative Complaint to violate the Insurance Code is the instructions she gave the Ocala office in her memorandum received on August 27, 1979. It is therefore concluded that no nexus has been established here between Ms. Finn and all transactions which antedate August 27, 1979. See the chronology of transactions set out in Finding of Fact 30. For this reason, Counts I, II, III, VIII and IX should be dismissed. The fact that Ms. Finn was the agent in charge of the Ocala office is not by itself sufficient to find her guilty of the alleged violations set out in the Counts above. Mere negligence in supervision of the salespeople even if proven, is not sufficient to sustain discipline in a license revocation case of this kind. Bach v. State Board of Dentistry, supra at 36. Counts IV, VI and VII concern transactions subsequent to the August 27, 1979 memorandum. Mr. Curry purchased his insurance on September 26, 1979. That was the same day Respondent wrote her memo which purged her earlier instructions to slide motor clubs. The record is barren of evidence on when the September 26, 1979 memorandum was received or acted on in Ocala. If I assume arguendo that the Ocala office was operating under a continuing taint from the August 27, 1979 memorandum, it is still not permissible to conclude that Petitioner has proven a violation by clear and convincing evidence. Mr. Curry, when testifying three years after he bought his insurance, did not remember what coverage he asked for or many other significant details of his transaction. When asked on cross-examination whether he remembered what happened at his transaction on September, 1979 he stated "No, I can't remember." Count VII of the complaint therefore must be dismissed for a lack of proof. Counts VI and IV, alleged transactions which took place subsequent to September 26, 1979, when the improper instructions of the August 27, 1979 memorandum had been effectively countermanded. The link between Respondent and any misrepresentations which occurred in the sale of insurance to Mr. Alfarone and Mr. Clark had been severed. For this reason, Counts VI and IV should be dismissed. Summary The facts established here by clear and convincing evidence do not support a conclusion that Ms. Finn has violated any provisions of the Insurance Code as alleged in the Amended Administrative Complaint. This determination is not meant to condone in any way Respondent's instructions in her August 27, 1979 memorandum. Had she been charged with instructing her subordinates to violate the Insurance Code and therefore demonstrating a lack of fitness to be licensed as an insurance agent, this might have been a different case. Since no such facts were pled here, the Amended Administrative Complaint must be dismissed in its entirety. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department of Insurance and Treasurer enter a final order dismissing the Amended Administrative Complaint against Mary Lou Finn. DONE and RECOMMENDED this 12th day of January, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1982.
Findings Of Fact Introduction At all times relevant hereto, respondent, Florence Mounts Williams (Williams or respondent), was licensed as an insurance agent by petitioner, Department of Insurance and Treasurer (Department or petitioner). When the events herein occurred, Williams was an officer and director of Mr. Auto Insurance of Okeechobee, Inc. (Mr. Auto), an incorporated general lines insurance agency located in Okeechobee, Florida. She was also an officer and director of Florida Insurance Agency, Inc. (FIA), an insurance agency doing business in the same city. Respondent sold insurance to the public through both businesses. Williams is charged with violating the Florida Insurance Code while dealing with nine customers during the period between 1984 and 1986. These business transactions were made either through Mr. Auto or FIA, and, with certain exceptions, generally relate to Williams accepting a premium for a policy and then failing to procure a policy for the customer, or falling to refund the premium after the customer cancelled the policy. Some of these customers eventually filed complaints with the Department, and after an investigation was conducted, the administrative complaint, as amended, was issued. That prompted this proceeding. The State of the Industry and Williams in 1984-86 Before discussing the specific charges, it is appropriate to describe the industry conditions and practices as they existed in 1984-86. These were established without contradiction by expert witness Beverly. It is within this broad framework that Williams operated when the transactions in question occurred. The expert's bottom line conclusion, after reviewing the nine customers' files, was that no impropriety had occurred. The agent-customer interface normally begins when a customer visits an insurance agent to purchase a policy. The agent will generally get a rate quotation by telephone from a managing general agent (MGA) who brokers policies on behalf of various insurance companies. An MGA may more accurately be described as a branch office of the insurance company under contract. If the rate quoted by the MGA to the agent is acceptable to a customer, the agent has the applicant complete an application and pay the quoted premium, or at least make a down payment on the same. The application and premium are then forwarded by the agent to the MGA for risk review to determine if the applicant meets underwriting requirements. At the same time, the agent will issue a binder to the customer which evidences temporary coverage until the application is accepted or rejected by the insurance company. In the event coverage is later declined, industry practice dictates that the agent obtain coverage with another company as soon as possible since the agent has the responsibility to maintain coverage on a customer. However, what constitutes a reasonable period of time to do so was not disclosed. In obtaining new coverage, the agent need not have the customer execute a new application since the validity of the original application is not affected. The customer should, however, be notified at the earliest convenient time that coverage is with a different company. In some cases, a customer may choose to finance his premium through a premium finance company. If he does, the finance company pays the entire premium to the MGA or insurer when application is made, and the customer pays the amount owed (plus a finance charge) to the finance company through installment payments over an agreed period of time. If for some reason an application is not accepted by the insurer, it is the responsibility of the MGA or insurer to so notify the premium finance company and return the money. The finance company must then refund any money paid by the insured. When the events herein occurred, it was established through expert testimony that the Florida insurance marketplace was in a "chaotic" condition and could be described as a "zoo." During this time, a small agent such as Williams might find herself doing business with as many as fifteen different MGAs, each with a different set of rules. Thus, it was common for an agent to be confused as to her binding authority with a particular MGA and whether the proper amount of coverage was obtained. Moreover, because of the chaotic marketplace, it became increasingly difficult to find companies who would write coverage on certain types of policies. It was further established that in 1984-1986 the MGAs were "overflowed with work" thereby causing delays of up to "months" for an agent to learn from an MGA if the risk had been accepted and a policy issued. Applications and checks were also lost or misplaced by the MGA and carrier during this time period. Consequently, the agent would think that coverage had been obtained, and so advise the customer, but would later learn that the application had been rejected, or the company had no record of one ever being filed. There were also lengthy delays in MGAs and insurance companies returning unearned premiums to the agent for repayment to the customers. According to industry practice, once a refund is received by an agent, checks to customers would typically be issued only once a month. In Williams' case, she made refunds on the twenty-fifth day of each month. A further prohibition on an agent is that a refund can be paid to a customer only after the agent receives the refund check from the insurance company or MGA. In other words, refunds from an agent's own funds are prohibited. As a result of this confusion, the number of occasions when an agent was cited for an error or omission (E&O) went up "astronomically." Indeed, industry statistics tell us that one in six insurance agents has a claim filed against his E&O policy for failure to provide coverage as promised. For this reason, no reasonable agent, including Williams, would do business without an E&O policy. When the policies in question were sold, Williams had approximately 4,000 active and inactive files in her office. Her office help was mainly persons with no prior training in insurance, and who only stayed on the job for a matter of weeks or months. Consequently, there was some confusion and disarray in her two offices. Even so, Williams was responsible for the conduct of her employees. At the same time, however, it was not unreasonable for Williams to assume that, due to the overload of work on the MOAs, an agent could expect no action on an application to be taken by an MGA or carrier for many months, and that applications and checks might be misplaced or lost. Count I This count involves an allegation that Williams violated nine sections of the Insurance Code in conjunction with the sale of a boat insurance policy to David and Margaret Copeland on September 19, 1984. The evidence reflects that Margaret Copeland applied for insurance on her boat with Mr. Auto on or about September 19, 1984. Copeland had previously been turned down for insurance by several other local agents. After Williams received a telephonic quote of $168 per year from an MGA, and relayed this advice to Copeland, Copeland gave a $30 check as a down payment on her policy. The remaining premium was paid by two partial payments made on October 6 and November 7, 1984, respectively. Copeland was issued a binder to evidence her insurance coverage, and a receipt for the $30 down payment. The binder indicated that Barnett Bank was the loss payee and that coverage was with "Professional." In actuality, "Professional" was Professional Underwriters Insurance Agency, Inc. (Professional), an MOA in Altamonte Springs for various insurance companies doing business in the state. According to Williams, the application and check were forwarded to Professional shortly after the application was executed. Because the boat was being financed with Barnett Bank, and the lender required evidence of insurance, Copeland instructed Mr. Auto to furnish a copy of the policy to the bank. A copy of the binder was furnished by Williams to the bank on November 19, 1984, and again on December 7, 1984. However, after Margaret Copeland did not receive a copy of a policy, she contacted Mr. Auto on several occasions to obtain a copy but was given "excuses" why one had not been issued. At this point Williams simply believed Professional was "dragging its feet" since past experience had taught her Professional typically took three to four months to forward a copy of the policy. Nonetheless, in response to Copeland's requests, Williams wrote Professional on December 3, 1984, asking that it "please check on the (Copelands') boat policy which was written 9-19-84" because the lienholder needed a copy. Professional did not respond to Williams' request. After no policy was received, Margaret Copeland contacted Professional's office in Altamonte Springs by telephone and learned no policy had been issued by that firm. The Copelands then requested Mr. Auto to cancel their policy on March 12, 1985, and demanded a full refund of their premium. After having the Copelands execute a notice of cancellation, the same was forwarded by Williams to Professional with a note reading "Karen, check this out and see what is happening," together with a copy of her previous request that Professional check on the whereabouts of the policy. Again, Professional did not respond to this inquiry. Williams then telephoned Professional and spoke to its office manager seeking advice on the amount of refund due the Copelands. She was told to make a proration. On May 19, 1985, Williams offered David Copeland a partial refund ($89) of his premium but he declined. This amount of refund was based on Williams' belief that coverage existed from September 18, 1984, when she received a quotation, until March 12, 1985, or for approximately six months, and $59 represented the remaining unearned premium. Given the climate of the industry at that time, it was reasonable for Williams to make such an assumption. After Copeland declined her offer, Williams wrote Professional seeking further assistance and stating that "Insured was in here today, wanted his refund. I tried to prorate it and give it to him." Again, Williams received no formal reply from the MGA. To date, a policy has not been produced. Williams eventually refunded the entire premium to the Copelands in February 1987. Through testimony from a Professional representative, it was established that Williams had no binding authority with Professional except on homeowners and dwelling fire policies. On all others, including the type the Copelands desired, it was necessary for the agent to first telephone Professional and receive a "telephone bind" from a Professional representative. In a letter to petitioner dated August 7, 1985, Professional acknowledged that there was "a possibility this risk may have been quoted," but it could find no record of an application having been filed or verification of coverage bound through a binder number or cashed check. It did acknowledge receiving the Copelands' request to cancel their policy in March 1985. If a binder had been authorized, it would have been recorded in a binder book with a number assigned to that binder unless the company lost the policy or otherwise inadvertently failed to record this information. The representative also confirmed that Professional routinely brokered this type of policy in 1984, and that it binds several thousand policies per year. Given this volume of work, the representative acknowledged it was possible that Williams or an employee of her firm may have been given a telephone quote for the Copeland policy, or that the application could have been misplaced. C. Count III On June 19, 1985, William C. Norton, a retired railroad conductor, went to Mr. Auto to purchase an insurance policy for two automobiles. After being quoted an annual premium of $315 by an MGA (Jergen & Roberts), Williams gave this advice to Norton who then gave her a check in that amount. Norton was given a receipt and a binder to evidence his coverage. The binder reflected Norton's application had been placed with "Foremost," which is Foremost Insurance Company (Foremost) in Grand Rapids, Michigan. Williams forwarded the application to the MGA but it was later returned unbound because of several traffic violations by Norton. She then "shopped" the application around and was able to procure a policy from Orion Insurance Company (Orion) through Standard Underwriters, an MGA, at an estimated cost of $528.70 instead of the previously quoted rate of $315 per year. It should be noted that during this period of time, Norton was covered through binders executed by Williams. After Williams paid the amount ($528.70) due the MGA, a policy number (PA-102390) was issued. However, through "neglect" Williams never billed Norton for the difference between the originally quoted premium and the $528. After Orion reviewed Norton's driving record, it increased the annual premium to $622. When Williams received a bill for $622 per year, she sent Norton a notice on October 24, 1985, requesting an additional $144. 2/ When he refused, the policy was cancelled by the company for nonpayment in February 1986. By this time, Norton had gone to another company to obtain coverage. He had also requested from Williams a copy of his policy on four or five occasions but one was never produced. Norton also demanded a full refund of his money even though he had been covered by binders and a policy from June 1985 until February 1986, and was not entitled to a refund. When Williams refused, Norton filed an action in small claims court in February 1986, and won an uncontested judgment for $315. Williams stated she did not contest the matter because of several stressful events then occurring (e.g., a divorce and an employee theft) and the expense of hiring legal counsel. Mobile Home Division of Florida (MHD) is an MGA in Fort Lauderdale that reviews applications for automobile insurance with Foremost (and others), and determines if the applicant meets Foremost's underwriting requirements. It is one of five MGAs in the State representing Foremost. A representative of MHD reviewed his firm's records, and found no evidence of having received the Norton application. However, this was not surprising since Williams had not used MHD to obtain Norton's policy. Count VI Terryl J. Wisener is a college student with numerous traffic violations on his record. Because of this, he was forced to obtain automobile insurance through the Florida Joint Underwriters Association (FJUA), a small group of companies who write policies for high risk drivers such as Wisener. Insurance agents are "assigned" to one of the companies writing policies, even though they are not a regular agent of that company. Allstate Insurance Company (Allstate) happened to be a servicing carrier for FJUA in 1986, and Williams accordingly filed FJUA applications with that carrier when seeking insurance for high-risk customers. Under then existing rules, Williams could temporarily "bind" Allstate by writing a binder on a policy, but approval of the application and issuance of permanent coverage rested with Allstate. Until the application was rejected by Allstate, the driver was insured through the binder. During this same time period, it was "commonplace" for an FJUA carrier to return an application because of an "insignificant error" to avoid having to write a policy on a high-risk customer. On December 30, 1985, Wisener purchased a six-month automobile insurance policy through Williams. When the policy was due to expire on June 30, 1986, he returned seeking a renewal. Williams attempted to place the liability coverage with Allstate and the physical damage coverage through "Coastal," an MGA for Adriatic Insurance Company. She was quoted premiums of $996.70 and $814.70, respectively, for the two policies. After accepting a down payment of $552 from Wisener, she issued a binder and mailed the application to Allstate and Coastal with drafts for the entire premiums due. Because Wisener's Chevrolet Camaro was an eight-cylinder automobile, Coastal rejected the application in October 1986. Williams then attempted to replace the physical damage coverage with Allstate in November 1986. By virtue of Williams' binding authority, Wisener had coverage with Allstate until it rejected his application. The application, along with about fifty or sixty others, was eventually rejected by Allstate on February 27, 1987, because of a lack of "information." Until this occurred, Williams properly assumed that Wisener was covered and that Allstate was reviewing his application. In the meantime, and apparently without advising Williams, Wisener decided in October 1986 to purchase a policy through his parents' Allstate insurance agent in Port St. Lucie. He did so because he "believed" he had no insurance. However, he never made inquiry with Williams to confirm or deny this, or asked for a refund of his money. A representative of Allstate searched his firm's records and could find no evidence that a policy was ever written for Wisener through Williams. The company does acknowledge that it received Wisener's application and that it eventually returned the same "unbound" almost four months later. It gave no explanation for the delay. Although Wisener had not received a refund as of the time of hearing, this responsibility rests with Allstate (and not Williams) since it has never refunded to Williams the money paid by her for Wisener's policy. Count VII This count concerns a mobile home insurance policy purchased by Samuel and Mary Jo Moore in June 1985 from FIA. On June 25, 1985, Mary Jo Moore made application to renew her insurance policy on the mobile home. The policy had been in force for some ten years. Moore paid Williams $118 by check which was deposited and cashed by Williams. A check for $23 was also paid at a later date due to a premium increase. Williams issued Moore a binder evidencing coverage with Mobile Home Insurance Association (MHIA), an MGA in Gainesville, Florida. Shortly afterward, Williams learned from the MGA that the Moores' previous carrier, American Pioneer, had gone bankrupt and that there was a limited market for the Moores' application. Williams thereafter forwarded the application to another MGA, Jerger & Sons, Inc. (Jerger), in early August 1985. Temporary coverage was eventually issued by Jerger on August 23, 1985. However, the application was deemed to be incomplete because information regarding the number of spaces in the Moores' trailer park was lacking. This was not surprising since the Moores lived on private property and not in a trailer park. The application was returned to Williams with a reminder that unless the missing information was submitted to Jerger by September 6, 1985, coverage would be terminated. When no information was filed by that date, Jerger cancelled its coverage and returned the unbound policy on September 12, 1985. The Moores were not notified of this lapse in coverage. By allowing the coverage to lapse, and not notifying the Moores, Williams was negligent in her duties as an agent. After Jerger returned the application to Williams in late August 1985, Williams attempted to get the Moores to furnish photographs of the trailer site, and to sign the new application. Because both worked at jobs during business hours, Williams claimed she was unable to reach them prior to September 6, 1985. Williams continued her efforts to place the insurance and eventually filed the application with Foremost in March 1986. Although Williams concedes a lapse in coverage did occur, there is no evidence that this was an intentional or debilitate act on her part. After having the application returned twice, coverage was finally obtained for $201 in July 1986, or almost a year after the Moores first approached her concerning a renewal of their policy. This policy is effective through July 1987. Williams paid out of her own funds the difference between the original premium ($141) and the $201. In view of the original premium being applied to the 1986-87 premium, the Moores are not due a refund. On October 31, 1985, a tornado struck in the Okeechobee area causing damage to the Moores' trailer. The Moores contacted respondent who, at her own expense, had an adjuster from Vero Beach survey the damage in November. The adjuster learned no coverage was in force. The Moores then contacted respondent who, for some reason, had Jerger search for a policy. As might be expected, none was found, and Jerger would not agree to cover the loss. Williams instructed the Copelands to proceed against her E&O carrier for payment of their claim. At the time of final hearing, the claim had not yet been resolved. Count VIII On or about February 19, 1986, William A. McClellan, a retiree, purchased an automobile insurance policy from FIA. He paid $201 by check to Williams and received from her a receipt and binder evidencing coverage with "AIB" (Associated Insurance Brokers), the MGA for Balboa Insurance Company in Newport Beach, California. After the application was forwarded to AIB, it was initially returned because the agency check was drawn on insufficient funds. Thereafter, the check was made good (with no lapse in coverage) and Williams subsequently received a bill from Balboa for $247, or $46 more than she had previously quoted McClellan. When McClellan was presented the bill for an additional premium on May 1, 1986, McClellan told Williams to cancel his policy and to refund the unearned premium. She relayed this request to AIB and coverage was cancelled effective June 13, 1986. Thereafter, McClellan visited Williams' office at least seven or eight times seeking his refund, but was always told it was still being processed. This was a correct representation by Williams since AIB was less than diligent in processing a refund check. McClellan also filed a complaint with petitioner. Upon inquiry by petitioner, Williams advised the Department that McClellan would be paid as soon as AIB issued her a check. On or about July 29, 1986, AIB finally cut a check in the amount of $91.22 payable to Williams, and eventually issued a second check in the amount of $25.38 on October 1, 1986. The delay in issuing the checks was attributable to AIB and not Williams. After Williams received the first check, she offered McClellan a partial refund of $91.22 but he declined the offer. On October 10, 1986, or the day after Williams received the second check by mail, a representative of AIB flew by private plane to Okeechobee and obtained $133 in cash from Williams, who by then had received the second check from AIB. 3/ The representative paid McClellan the same day. Count IX On or about March 16, 1985, Luther B. Starnes purchased an insurance policy for his two automobiles from Mr. Auto for which he paid $473 by four installments over the next few months. After Williams received a telephone bind, Starnes was issued a binder evidencing insurance with a company called "Integrity." He also received a "Florida Vehicle Identification Card" evidencing PIP and liability coverage on his vehicles. In this case, Williams placed the coverage by telephone with AIB, the MGA for Integrity, which authorized her to temporarily bind the coverage. The application and check were thereafter sent by Williams to the MGA. After not receiving a policy by the fall of 1985, Starnes telephoned a district office of Integrity and learned his name was not on its computer. However, he did not contact Williams after that, or ask for a refund of his premium. Despite the accusation that Williams had no basis to believe that a policy had ever been issued by Integrity, an AIB representative confirmed at hearing that Starnes' application and premium had been received by AIB, and that AIB had issued a policy number covering Starnes. Indeed, respondent's exhibit 10 reflects that Integrity cashed the check, and simultaneously placed a sticker on the check which read "Integrity Insurance Co. Private Passenger Auto 100-FAB- 0206809." This indicated that AIB had assigned a policy number on behalf of Integrity and that Starnes' coverage was in effect. Indeed, Williams properly relied upon her cancelled check in believing that Starnes was insured. Moreover, it was appropriate for Starnes to pay for this coverage until Integrity formally rejected his application. Although Starnes never received a copy of a policy, the responsibility to issue one rested upon MGA or Integrity, but not Williams. Count X On or about July 11, 1986, David and Carolyn Douglas purchased an insurance policy for two trucks owned by David. The policy cost $1300 per year and Carolyn paid Williams this amount by check. A binder was given to Carolyn reflecting coverage through Dana Roerig and Associates (Roerig), an MGA in St. Petersburg for Canal Insurance Company (Canal). Under the MGA's then existing policy, it was necessary for Williams to forward the application to Roerig and request a rate quotation. After receipt of the application Roerig would normally telephone the agent, quote a rate, and then bind if the rate was acceptable. In this case, the quoted rate was unsatisfactory, and Roerig returned the application unbound on August 10, 1986. Williams then attempted to place the coverage through an MGA in Lakeland (E&S Agency). However, Williams was quoted a rate on September 25 which she knew was too expensive. After obtaining the second excessive quote, Williams immediately bound coverage with Allstate and forwarded the Douglas application to that carrier with an agency check on September 25, 1986. Because Allstate accepted only money orders or cashiers checks, and the application was undated, the application and check were returned by Allstate to Williams on October 7. Williams then sent Allstate a dated application and a money order in the amount of $1500, or $200 more than the original Douglas policy required. Although Allstate did not formally issue a policy, it assigned the Douglas application a policy number on December 15, 1986, and simultaneously issued a refund check for $121 to Douglas, since the policy cost $1,179 and not $1,300 as had been originally quoted to Carolyn Douglas. Therefore, at that point the coverage remained in effect. On December 23 Allstate issued another refund check to Douglas in the amount of $776 and advised it was cancelling coverage effective February 6, 1987. Allstate later returned the remainder of the $1,300 owed David and Carolyn Douglas. Therefore, even though they had coverage for some six months through various binders and the policy itself, the Douglases paid no premium. Although Carolyn Douglas made several attempts to obtain a copy of the policy, Williams could not produce one since the two MGAs and Allstate had held the application almost continuously for six months. It is noted that Allstate has never repaid Williams the $1500 sent by her with the Douglas application in October, 1986. Count XI Francis Carr is a locktender on Lake Okeechobee whose duties require him to open and close the locks. The job is subject to bids, and all bidders must have evidence of general liability insurance. Desiring to submit a bid, Carr purchased a one-year general liability policy from Mr. Auto on September 20, 1985, and paid Williams $540.75 for the coverage. Carr received a copy of a policy from Scottsdale Insurance Company (Scottsdale) on a later date. On April 15, 1986, Carr asked that his policy be cancelled. This was done the next day. Carr was due a $181 refund as unearned premium. Through no fault of Williams, the refund check was not issued by Scottsdale until October 21, 1986, or some six months later. Williams later endorsed the check without recourse to a local dress shop. In July 1986, Carr again bid on the locktender job, and, through his wife, made application on July 7 for a new policy so that he could submit a bid. Although the annual premium had now increased to approximately $1,500 per year, Mrs. Carr paid only a $215 down payment. Under this type of policy, Carr was responsible for thirty-five percent of the entire year's premium even if he cancelled the policy after one day. Therefore, the policy had a minimum cost of $525 regardless of its term. Because he had not paid this minimum amount, Williams applied Carr's $181 refund check from the prior year to the minimum amount owed. This was consistent with the industry practice of agents applying credit refunds to new policies of this nature. She also paid $85 from her own funds in early October 1986 to meet the thirty-five percent threshold amount. By then, however, Carr had instructed another employee to cancel his policy since his bid had not been accepted. When he didn't get a refund from the prior year, Carr filed a complaint with petitioner. However, Carr is not entitled to a refund from either year since he still owes Williams $85 for the 1986-87 policy, even after the 1985-86 refund is applied to the second policy. I. Count XII Frank I. Henry and Margaret J. Henry (no relation) lived together in a rented mobile home in 1984. Margaret purchased a policy on the mobile home contents from Mr. Auto in July 1984. She paid Williams a $40 premium, and then made three payments of $47.28 each to Envoy Finance Corporation (Envoy), a Deerfield Beach finance company which financed the balance of the amount owed. Margaret received a binder from Williams reflecting coverage with Mobile Homes Division (MHD), an MGA in Fort Lauderdale Envoy submitted a check for $118.50 to MHD on July 16, 1984, reflecting full payment for the policy. After forwarding the application to MHD, Williams assumed Henry had coverage through American Fidelity Company (AFC), a company which later went out of business that fall. According to MHD, however, the application should have been returned to Williams a few days after it was received because it had no insurance company writing those types of policies. Williams denied receiving the application, and MHD had no record of the application being returned. Williams' version is corroborated by the fact that MHD never advised Envoy that the policy had been returned, something MHD should have done if coverage was rejected. Moreover, MHD has never refunded the $118.50 paid by Envoy in July 1984. According to uncontradicted expert testimony, it is the responsibility of the MGA or carrier to advise the finance company of a coverage denial, and to make a refund to the finance company, which then makes a refund to the customer. Therefore, MHD or AFC, but not Williams, is at fault for not refunding Henry's money. Around April 20, 1985, Frank's mobile home was damaged by a fire. His claim was rejected by MHD since it had no record of coverage. Prior to this time, no request for a copy of the policy had been made by Henry, and Williams properly assumed that Henry's coverage was in effect. Williams has since notified her E&O carrier of a possible liability. As of the time of hearing, Henry's claim was still unpaid and he has not received a refund of his premium from MHD, AFC or Envoy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of a single violation of Subsection 626.621(6), Florida Statutes (1985), and that all other charges be dismissed. Respondent should be given a reprimand for this violation. DONE AND ORDERED this 29th day of May 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May 1987.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by E. Gary Early, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Daytona Beach Cycles, LLC d/b/a Indian Motorcycle of Daytona, be granted a license to sell motorcycles manufactured by Victory (VICO) at 420 North Beach Street, Daytona Beach (Volusia County), Florida 32114, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed March 8, 2012 9:15 AM Division of Administrative Hearings DONE AND ORDERED this Io day of March, 2012, in Tallahassee, Leon County, J “Baker Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this Oy day of March, 2012. 2 Pobias Vinegek Nalini Vinayak, Dealer Kicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Andrew Pallemaerts Volusia Motorsports, Inc. 1701 State Road 44 New Smyrna Beach, Florida 32168 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
