Findings Of Fact Petitioner applied to the Respondent for licensure as a general lines, and a life and health insurance agent on or about February 8, 1990. By letter dated May 17, 1990, the Petitioner was informed that his applications for examination were denied based upon a finding that he lacked fitness or trustworthiness to engage in the insurance business. Petitioner timely requested a hearing to determine if he is qualified to take these licensure examinations. On or about January 3, 1986, the Petitioner entered a plea of guilty to two counts in a superseding indictment filed in Case Number 84-00603(S)-05 in the United States District Court for the Eastern District of New York. Based upon this plea, the Petitioner was found guilty of conspiracy to defraud an insurance company and filing a false insurance claim, each count being a felony involving moral turpitude. He was sentenced to three years probation, and ordered to pay a fine of $10,000. Special conditions of probation included prohibiting the Petitioner from engaging in the insurance business, and requiring that he make restitution to the Hartford Insurance Group in the sum of $1,778.08. On or about August 15, 1986, the Insurance Department of the State of New York revoked the Petitioner's insurance broker's license, based upon his felony conviction as set forth above. The Petitioner successfully completed his period of probation in New York on January 2, 1989, including payment of the $10,000 fine and restitution in the amount of $1,778.08. On or about September 22, 1989, the Board of Parole of the State of New York issued a Certificate of Relief from Disabilities to the Petitioner which removes bars to employment and licensure automatically imposed by the laws of the State of New York as a result of his conviction. However, this Certificate specifies that it shall not prevent any administrative or licensing body or board from relying upon this conviction as a basis for the exercise of its discretionary power to refuse to issue a license. The Petitioner failed to disclose on his applications for examination that his insurance broker's license in New York had been revoked. In fact, he specifically answered "no" to the question on these applications concerning whether his license had ever been revoked in another state. The Petitioner did disclose on his applications for examination that he had been charged with a felony in New York, and indicated that he had entered a plea to a single charge. He stated on his applications, however, that he had not been convicted by any court. The Petitioner claims that he did not know that his New York license had been revoked. Rather, he testified that he had sought to surrender his license in New York after his conviction in 1986, and thought that the administrative action had been concluded with his license surrender. He claims he never was notified of any hearing, and did not receive a copy of the order of revocation issued by the Insurance Department in New York. The Petitioner also claims that he entered his plea of guilty as a matter of convenience in order to avoid a long and expensive trial, and on the advise of his counsel. He maintains that he did not file a false insurance claim and did not conspire to defraud any insurance company. Rather, he testified that he was very ill at the time, and did not expect to live. In order to avoid the strain and expense of a trial, and since he did not believe he would ever again be physically able to engage in the insurance business, he agreed to resolve the criminal charges against him with a plea of guilty to two counts in the superseding indictment issued against him. Finally, he testified that he indicated on his applications that he had not been convicted by any court since he had not had a jury trial, and he was under the impression that a person can be convicted only if found guilty by a jury. Based upon his demeanor at hearing, it is found that the Petitioner is a credible witness and that his claims that he did not know his New York license had been revoked and that he thought a person could only be convicted if found guilty by a jury are truthful. Nevertheless, the Petitioner was in error regarding both claims, and as a result, he answered questions on his applications in a false and incomplete manner. He was convicted on two felony counts, and his license was revoked in New York based on those convictions.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified to take the examination for licensure as a general lines, and a life and health insurance agent. DONE AND ENTERED this 2nd day of April, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Rejected as a summary of the evidence (Exhibit P-2) and not a proposed finding of fact. Adopted in Finding 1. Adopted and Rejected, in part, in Finding 6. Adopted, in part, in Finding 2, but otherwise rejected as unnecessary, simply a summation of testimony, and as not based on competent substantial evidence. Adopted in Finding 8. Rejected in Finding 9. Rejected as a comment on the record and not a proposed finding of fact. Rulings on the Respondent's Proposed Findings of Fact. COPIES FURNISHED: Mark E. Berman, Esquire 2450 Hollywood Boulevard Suite 401 Hollywood, FL 33020 Gordon Thomas Nicol, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Bill O'Neil, Esquire General Counsel The Capitol, PLaza Level Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue in the case is whether Petitioner is entitled to a Resident Independent All-Lines Insurance Adjuster license.
Findings Of Fact On July 24, 1999, Petitioner was involved in a physical altercation in her driveway, defending herself against a female neighbor. Shortly after the altercation, Petitioner was arrested for Aggravated Battery. On January 12, 2000, a Criminal Information was filed against Petitioner charging her with Aggravated Battery Causing Great Bodily Harm. On August 15, 2000, Petitioner pled no-contest to Felony Battery and was placed on two-years' probation. Adjudication of guilt was withheld. Fourteen months later, on October 18, 2001, Petitioner's probation was terminated early without any violations. On March 11, 2002, Petitioner applied for licensure as a Resident Independent All-Lines Insurance Adjuster and provided the prior arrest information in her application. On May 24, 2002, Respondent denied Petitioner's application for licensure on the basis of her single arrest and subsequent plea. On June 18, 2002, Petitioner submitted a timely Election of Proceedings form requesting a formal hearing. Respondent's licensing review committee, composed of the Bureau Chief of Licensing Division, Licensing administrators, the Assistant Division Director of Agent and Agency Services, and a Department attorney, reviewed Petitioner's application and determined that she was unfit and untrustworthy to hold a license. The review committee's decision was based strictly on Petitioner's prior criminal plea and the limited time between her completion of probation and application for licensure. The evidence presented at hearing, however, demonstrated Petitioner's fitness and trustworthiness to hold a license. Petitioner, an African-American, lives in a 50-house subdivision containing approximately three African-American families. On July 24, 1999, Petitioner attempted to enter her driveway but was blocked by a car that was parked in front of her driveway. A Caucasian woman was parked in front of Petitioner's driveway and was reading mail that she had retrieved from the community mailbox located in Petitioner's front yard. Despite having experienced the woman's similar rude behavior 2-weeks prior, Petitioner politely "tooted" her horn to encourage the woman to move her van forward and patiently waited. Shortly thereafter, Petitioner again beeped her horn. In response, the woman glanced at Petitioner, looked away, and refused to move. Thereafter, Petitioner placed her car in park, approached the driver's side of the woman's car, knocked on her window, and said, "I want to go in my driveway." Again, the woman ignored her request and continued to read her mail. Petitioner stated that after further knocking, she opened the woman's door and said, "I don't know you and you don't know me. I want to go into my driveway and I need you to move your van." In response the woman said to Petitioner, "You need to move. I want to close my door." Immediately thereafter, and without warning, the woman pushed Petitioner to the ground, got out of her car and attacked Petitioner. After being repeatedly struck by the woman, Petitioner bit the woman's shoulder in self-defense. Within seconds, the altercation, which Petitioner alleges was racially motivated, ended and the woman drove away. Petitioner ran into her house and relayed the events to her teenage children. Prior to calling 911, Petitioner called her uncle for advice. While on the telephone with her relative, the police arrived at Petitioner's home and she was arrested. Petitioner retained a lawyer to contest the charge. Upon her attorney's advice, Petitioner reluctantly agreed to plead no-contest to the charge, accept two years of probation, and receive a withholding of an adjudication of guilt. Petitioner's probation was terminated after 14 months without incident. Petitioner has never been arrested nor convicted of any crime prior to this incident. Since 1987, Petitioner has been working in the insurance industry in various capacities including claims examiner. She is currently entrusted with large sums of money, successfully works in customer service, and routinely deals with difficult customers in an appropriate and professional manner. Petitioner has been praised by her employers and co-workers and possesses an excellent demeanor. Petitioner has been offered a position as an adjustor trainee with Zurich Insurance Company contingent upon obtaining an adjustor's license. On June 21, 2001, approximately nine months before Petitioner submitted her application, Respondent repealed its law enforcement waiting period rule which outlined the length of time an applicant was required to wait, following a felony plea, in order to qualify for licensure. While Respondent adopted a new law enforcement waiting period rule pursuant to Section 626.207, Florida Statutes, on October 17, 2002, approximately five months after Petitioner submitted her application, Respondent stipulates that the new rule does not apply to Petitioner. In fact, at the time Petitioner submitted her application in March 2002, Respondent stipulates that it operated strictly under Sections 626.611 and 626.621, Florida Statutes. Consequently, Petitioner applied at a time when Respondent admittedly used only the statutes as a basis for denial. Waiting periods were not applied to applications for licensure during March 2002. While Petitioner's Notice of Denial contains a typographical error as to the date on the first page of the letter, the Agent Personal Data Inquiry correctly shows that Petitioner was officially denied on May 24, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order approving Petitioner's application for licensure as a Resident Independent All-Lines Insurance Adjuster. DONE AND ENTERED this 19th day of March, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 19th day of March, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Maria N. Neal 5639 Breckenridge Circle Orlando, Florida 32818-1377 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent, a licensed insurance agent, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent has been licensed as a general lines insurance agent (2-20), a life and health insurance agent (2-18), and a health insurance agent (2-40). In June 2000, the statewide prosecutor filed an information against Respondent in the Circuit Court in and for Orange County, Florida, where it was assigned Case No. CR-0-00- 9771/A. The information charged that Respondent was guilty of organized insurance fraud involving $50,000 or more in violation of Section 817.034(4)(a), Florida Statutes, which is a first degree felony and a crime involving moral turpitude. Simon Blank, an investigator employed by Petitioner's Division of Insurance Fraud, participated in the investigation that culminated in the charges being filed against Respondent. Respondent cooperated with Mr. Blank's investigation and candidly answered questions that were put to him. On July 31, 2001, Respondent entered a plea of nolo contendere to the charges against him. At Respondent's plea hearing the prosecutor summarized the facts he expected to be able to prove, including the fact that Respondent engaged in fraudulent activity involving workers' compensation insurance.2 Thereafter, Respondent stipulated that there was a factual basis for his plea. The Court accepted Respondent's plea, but withheld adjudication of guilt. The Court sentenced Respondent to two days in jail with credit for time served and placed him on probation under the supervision of the Florida Department of Corrections for a period of ten years. Respondent was ordered to perform 100 hours of community service and to pay restitution in the total amount of $16,179.00, which included the costs of investigation. As a condition of his probation, Respondent was ordered not to write or renew any policy of workers' compensation for a period of five years. Prior to the filing of the Administrative Complaint against him, Respondent had not notified Petitioner in writing that he had entered a plea of nolo contendere to the criminal charges that had been filed against him. Respondent has been the owner of A Maples Insurance Agency in Pompano Beach, Florida, since 1987. Consistent with his probation, Respondent no longer writes or renews workers' compensation insurance. At the time of the final hearing, Respondent was current with his continuing education classes. Respondent has not been convicted of a felony or a misdemeanor. Respondent testified that his plea in the criminal proceeding was a plea of convenience and that he could not afford to contest the charges. Respondent did not believe the plea would lead to the suspension of his license because the suspension of his license was not a condition of his probation. He mistakenly believed that the entry of his plea in the criminal proceeding would resolve all issues with the Petitioner since Petitioner participated in the investigation of the case. Respondent testified that his attorney said he had received something from the Department of Insurance that gave reason to believe that they already knew about the plea. That correspondence was not admitted into evidence and Respondent's self-serving testimony was not corroborated. Respondent's license was previously disciplined in Case No. 93-L-222JDM, which involved allegations of misappropriation of funds. Petitioner's records reflect that Respondent was placed on probation for one year as a result of that proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that finds Respondent guilty of violating Section 626.611(14), Florida Statutes, as alleged in Count I of the Administrative Complaint, and guilty of violating Section 626.621(11), Florida Statutes, as alleged in Count II. It is further RECOMMENDED that the final order suspend Respondent's licensure for a period of 24 months for the Count I violation, and for a period of three months for the Count II violation. It is further RECOMMENDED that the final order provide that the periods of suspension shall run concurrently. DONE AND ENTERED this 20th day of February, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of February, 2002.
Findings Of Fact At all times pertinent to the matters herein, the Respondent, Department of Insurance, was the state agency in Florida responsible for the regulation of the insurance profession and the licensing of insurance agents in this state. Petitioner, Dale J. Dyer, was licensed as a health insurance agent in this state but his license had been suspended by the Department as the result of a disciplinary action in November, 1991, and was, at the time of the alleged misconduct, in a suspended status. The suspension period for Petitioner's license expired in May, 1992 and he thereafter applied for reinstatement of his license. The Department denied his application for reinstatement in July, 1992 because on or about June 19, 1991, a check for $13,971.00, made payable to Transport Life Insurance Company by Thiel Liukens, as payment for a nursing home policy to be issued, was deposited by Paula Dyer, Petitioner's wife and herself a general agent for Transport, to an agency bank account controlled by Ms. Dyer and upon which Petitioner was an authorized signatory. This check was neither transmitted to the insurance company nor returned to Mr. Liukens, nor was the coverage for which it was issued ever initiated. Petitioner met Mr. Liukens in late 1990 when he tried to sell him a Medicare supplement policy. He was not the one who sold him the policy in issue in June, 1991, however, nor did he either solicit or receive a check from him. In fact, there is no evidence he knew he had taken out this policy or paid by check. He had nothing to do with this policy, check or payment. Petitioner's wife, Paula, owns and operates the Paula A. Dyer & Associates agency. At the time in issue, he claims, he had nothing to do with the agency. He claims he did not help run it, didn't supervise any of the employees, and was neither an officer nor director. However, he was, with his wife, a signatory on the firm's checking account and several other accounts as well. He has drawn funds from the company account, as well as the others, for personal or business expenses and to facilitate the conduct of business in his wife's absence. Mr. Dyer asserts that premium deposits from Dyer and Associates agents were not to be deposited to that account. He did not know if they were, however. In any case, he denies ever consciously disbursing funds belonging to any insurance company from that account. To his knowledge, he never disbursed or took any funds from the Liukens payment to Transport Life Insurance Company nor, during 1991, did he have any relationship with that company. This was verified by Mrs. Dyer. Paula A. Dyer & Associates had netting authority with Transport which authorized it to deposit checks made payable to Transport to the agency account and thereafter remit to Transport the net premium portion due the company, retaining the balance as commission. There was no limitation on how the agency portion was to be used. The agency's checking account to which the Liukens check was deposited was with the Barnett Bank. As was stated above, both Dyers were cosignatories on the agency account because, though Petitioner was neither an officer, stockholder, director, nor employee of the agency, he had loaned his wife the money to open it and she wanted him to be able to get money if she were not available. The agency books were kept by a bookkeeper. The policy in issue here was solicited by Pedro Rodrigues, an agency employee, who received the instant check as a premium payment. The check, dated July 2, 1992, was thereafter deposited in July, 1991 to the agency account. Of the total amount of this check, slightly over $7,000.00 was the agency commission which was available for unrestricted use, including the personal use of Ms. Dyer or the Petitioner. Clearly a check written in July, 1992 could not be deposited in July, 1991, a year before being written. Consequently, it is found that the check was dated in error by the drafter. This is not the only error in dates in this matter, however. Mr. Stewart's July 21, 1992 letter of denial to Petitioner reflects the Liukens check was written on or about June 19, 1991. This is clearly not so. Records of the Barnett Bank for the time in issue reflect an account in the name of Paula A. Dyer & Associates, Inc., (Account No. 1263515600), on which the authorized signatories were Paula A. Dyer or Dale J. Dyer. Another account, in the name of Senior Trust of Florida, Inc., (Account No. 1263288130), showed David B. Judy as President, Paula A. Dyer as Secretary/Treasurer, and Dale J. Dyer as shareholder. All were signatories on this account. A third account, (Account No. 1264759744) was a joint account of Dale J. Dyer and Paula A. Dyer. The Liukens check was deposited to the Paula A. Dyer & Associates account and, after endorsement by Mrs. Dyer, cleared. Thereafter, numerous checks were written on that account. During the period June 28, 1991 to July 28, 1991, 11 deposits, totalling almost $66,500.00 were made to it and at the end of the period, the account had a balance of slightly over $21,000.00. From July to August, 1991, 14 deposits to the account totalled in excess of $65,600.00 and the ending balance for the period was $15,561.07. From August 30 to September 30, 1991, ten deposits totalled $18,590.29 and the ending balance for the period was $2,206.97, Among the checks written on the company account during the period were: $10,000 to Paula A. Dyer, deposited to the joint personal account. $8,000 to Senior Trust. $700 to Dale J. Dyer. $12,000 by Dale Dyer to Senior Trust. $945 by Dale Dyer to Willis Kelsey. $2,000 by Dale Dyer to Princess Casino (resort). $1,475 by Paula Dyer to Paula Dyer and deposited to the joint personal account. $600 by Paula Dyer to Senior Trust $2,000 by Paula Dyer to the joint personal account. $1,600 by Paula Dyer to Paula Dyer and deposited to joint personal account. In August, 1991, Transport Life Insurance Company was contacted by an attorney for Mr. Liukens about the check he had written to it for an insurance policy. When the company responded it had no knowledge of the check and had received no funds on his behalf, it was sent a copy of the check endorsed by Ms. Dyer and negotiated by her. A company representative then contacted Ms. Dyer about the check she had received. She acknowledged she had deposited it to her agency account and submitted a check for $971.00 in partial restitution. None of the balance has ever been repaid by Ms. Dyer, the agency, or anyone else, and in September, 1991, Transport Life terminated its agency agreement with Paula A. Dyer & Associates, Inc. It also repaid Mr. Liukens in full. According to Transport Life's representative, Mr. Shellhase, the company has no indication Petitioner had anything to do with this transaction nor any information he conspired with anyone to defraud Transport or Mr. Liukens. By Final Order dated May 3, 1990, the Florida Insurance Commissioner took disciplinary action against Petitioner's license as an insurance agent in Florida for several violations of Section 626.11, Florida Statutes, and several other violations of Section 626.9541, Florida Statutes. The specific violations found were not established at the instant hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Petitioner's application for reinstatement of his health license be approved. RECOMMENDED this 1st day of February, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-5094 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner's counsel's proposed findings of fact were not specifically numbered. However, for the purposes of this Recommended Order they will be considered as numbered starting with the third paragraph on page 2 of the Proposed Recommended Order and continuing through the fifth paragraph on page 4. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence not proven. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 14. Accepted and incorporated herein. 15. & 16. Accepted and incorporated herein. However, evidence was introduced that during the period in question, Petitioner wrote checks totalling $14,945.00, a sum exceeding the amount represented by the Liukens check. FOR THE RESPONDENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. 9. - 11. Accepted and incorporated herein. (misnumbered 11 in PFOF). Accepted and incorporated herein. (misnumbered 12 in PFOF). Accepted and incorporated herein. (misnumbered 13 in PFOF). Accepted that the accounts were closed as indicated, but there is no evidence as to what was done with the funds therein. (misnumbered 14 in PFOF). Accepted and incorporated herein. COPIES FURNISHED: John L. Maloney, Esquire 5335 66th Street N., Suite 4 St. Petersburg, Florida 33709 James A. Bossart, Esquire Division of Legal Services Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant hereto, respondent, Jack Michael Schwartz, held a life and health agent and ordinary combination life including health agent license issued by petitioner, Department of Insurance and Treasurer. Respondent presently resides at 2027 Northeast 172nd Street, North Miami Beach, Florida. On November 30, 1981 respondent submitted an application to petitioner for licensure as an ordinary life including disability agent. Question 15 on the application asked the following: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." The application was subsequently approved by petitioner in February, 1982 after respondent successfully completed a written examination. On June 18, 1985 respondent submitted an application to petitioner for licensure as a general lines agent. Question 11 on the application asked the following question: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." During the course of a routine background check of Schwartz, petitioner later learned that respondent had pled guilty to grand larceny by fraudulent representation on August 3, 1977 in circuit court in and for Broward County, Florida. The offense is a felony. Schwartz was thereafter placed on probation for five years under the direct supervision of the Department of Offender Rehabilitation. He was released from probation after two and one-half years. Schwartz acknowledged that he had pled guilty to a felony. However, after his probation was ended, Schwartz interpreted advice from his probation officer to mean he did not have to acknowledge on job or licensure applications that he had been convicted of a felony. He had no further explanation for his answers.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the license and eligibility for licensure of respondent be REVOKED. DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1809 PETITIONER: Covered in finding of fact 4. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 3. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Wilbur W. Anderson, Esquire 413-B Larson Bldg. Tallahassee, Florida 32301 Jack Michael Schwartz 2027 N.E. 172nd Street North Miami Beach, Florida 33162
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against her 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: Licensure Respondent has held a Florida 2-20 general lines (property and casualty) insurance agent license since July 24, 1998, and a Florida 2-15 life (including variable annuity and health) insurance agent license since August 17, 2005. Facts Common to Counts I through V and VIII At all times material to Counts I through V and VIII of the Administrative Complaint, Respondent was employed by O. J. Insurance (O. J.), a Miami insurance agency she had previously owned for approximately 15 years before having sold it in January 2003. Respondent went to work for O. J.'s new owners in or around June 2003. She remained an employee of the agency for approximately two years. During this two-year period, Respondent was the only licensed insurance agent at the agency. The agency's two other employees (one of whom was Respondent's sister, Sonia Pupo) held Florida 4-40 customer representative licenses. Respondent and the agency's two customer representatives were all salaried employees. None of them received a commission. The agency itself, however, received commissions from the insurance companies whose policies it sold. Respondent's performance as an employee of the agency was evaluated on an annual basis. Among the factors considered in the evaluation process was Respondent's productivity (that is, the number of insurance policies she sold). After her first year as an employee of the agency, Respondent received a salary increase based upon the annual evaluation she had received. Facts Relating to Count I On or about December 30, 2003, Blanca Duron went to O. J., where she purchased automobile insurance from United Automobile Insurance Company (United) through Respondent. Respondent filled out the insurance application for Ms. Duron. On the application, Respondent put down that Ms. Duron's address was 5205 Southwest 140th Place, Miami, Florida, knowing that this was not Ms. Duron's correct address. Ms. Duron actually resided on Southwest 7th Street in Miami. At no time did she ever tell Respondent that she lived at 5205 Southwest 140th Place, Miami, Florida. 5205 Southwest 140th Place, Miami, Florida, was in a "territory" having lower insurance rates than the "territory" in which Ms. Duron actually lived. Respondent's purpose in falsifying Ms. Duron's address on the application was to enable Ms. Duron to pay a lower premium than United would have charged had her correct address been entered on the application. Facts Relating to Count II On or about December 6, 2004, Brisaida Castillo went to O. J., where she purchased automobile insurance from United through Respondent. Respondent filled out the insurance application for Ms. Castillo. Respondent put down on the application that Ms. Castillo's address was 5205 Southwest 140th Place, Miami, Florida, knowing that this was not Ms. Castillo's correct address. Ms. Castillo actually resided on Northwest 22nd Court in Miami. At no time did she ever tell Respondent that she lived at 5205 Southwest 140th Place, Miami, Florida. 5205 Southwest 140th Place, Miami, Florida, was in a "territory" having lower insurance rates than the "territory" in which Ms. Castillo actually lived. Respondent's purpose in falsifying Ms. Castillo's address on the application was to enable Ms. Castillo to pay a lower premium than United would have charged had her correct address been entered on the application. Facts Relating to Count III On or about December 10, 2004, Ricardo Fernandez went to O. J., where he purchased automobile insurance from United through Respondent. Respondent filled out the insurance application for Mr. Fernandez. Respondent put down on the application that Mr. Fernandez's address was 5205 Southwest 140th Place, Miami, Florida, knowing that this was not Mr. Fernandez's correct address. Mr. Fernandez actually resided on Essex Avenue in Hialeah, Florida. At no time did he ever tell Respondent that he lived at 5205 Southwest 140th Place, Miami, Florida. 5205 Southwest 140th Place, Miami, Florida, was in a "territory" having lower insurance rates than the "territory" in which Mr. Fernandez actually lived. Respondent's purpose in falsifying Mr. Fernandez's address on the application was to enable Mr. Fernandez to pay a lower premium than United would have charged had his correct address been entered on the application. Facts Relating to Count IV On or about February 1, 2005, Pedro Cruz, Sr., went to O. J., where he purchased automobile insurance from United. It is unclear from the record whether it was Respondent or her sister, Ms. Pupo, who filled out Mr. Cruz, Sr.'s insurance application.4 The application indicated that Mr. Cruz, Sr.'s address was 5205 Southwest 140th Place, Miami, Florida. This was not his correct address. He actually resided on Northwest 18th Street in Miami. At no time did he ever tell Respondent that he lived at 5205 Southwest 140th Place, Miami, Florida. 5205 Southwest 140th Place, Miami, Florida, was in a "territory" having lower insurance rates than the "territory" in which Mr. Cruz, Sr., actually lived. Consequently, Mr. Cruz, Sr., paid a lower premium than United would have charged had his correct address been entered on the application. Facts Relating to Count V On or about December 6, 2004, Pedro Cruz, Jr., went to O. J., where he purchased automobile insurance from United through Respondent. Respondent filled out the insurance application for Mr. Cruz, Jr. Respondent put down on the application that Mr. Cruz, Jr.'s address was 5521 Southwest 163rd Court, Miami, Florida.5 Mr. Cruz, Jr., actually resided on Northwest 18th Street in Miami. At no time did he ever tell Respondent that he lived at 5521 Southwest 163rd Court, Miami, Florida.6 Facts Relating to Count VIII On or about February 3, 2005, Eulogio Martinez went to O. J., where he purchased automobile insurance from United through Respondent. Respondent filled out the insurance application for Mr. Martinez. Respondent put down on the application that Mr. Martinez's address was 5205 Southwest 142nd Place, Miami, Florida. Mr. Martinez actually resided on Northwest 5th Street in Miami. At no time did he ever tell Respondent that he lived at 5205 Southwest 142nd Place, Miami, Florida.7 Facts Relating to Count XI Since September 2005, O.D.C. Insurance Services, Inc. (O.D.C.) has operated an insurance agency (selling Allstate insurance products) at 13860 Southwest 56th Street in Miami, Florida, for which it has not obtained a license. During this period of time, Respondent has been owner, sole officer (president), and registered agent of O.D.C. and responsible for the day-to-day operations of O.D.C.'s Allstate insurance agency. At all times material to Count XI of the Administrative Complaint, Respondent was unaware of the requirement that insurance agencies, such as O.D.C.'s, be licensed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order finding Respondent guilty of the violations alleged in Counts I through III of the Administrative Complaint, revoking her licenses for having committed these violations, and dismissing the remaining counts of the Administrative Complaint. DONE AND ENTERED this 24th day of July, 2008, 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 24th day of July, 2008.
The Issue The Department of Insurance (Agency) has charged Respondent with various violations of Chapter 626, Florida Statutes, related to her fitness for continued licensure as an insurance agent. Specifically, the Administrative Complaint dated May 22, 1998, alleges that on July 31, 1997, Respondent pled nolo contendere to presenting a false statement of insurance coverage and grand theft, had adjudication withheld, and was sentenced to probation, restitution, and community service. The Administrative Complaint also alleges that on September 12, 1997, Respondent pled guilty to presenting a false statement of insurance coverage and grand theft and failed to notify the Department of Insurance of her plea. The Administrative Complaint alleges that Respondent thereby lacks qualifications for licensure, has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance and has violated other laws and rules regarding adjudication of guilt or pleas of guilt or nolo contendere. The issues in this proceeding are whether those violations occurred and if so, what discipline is appropriate.
Findings Of Fact As stipulated, Christine Lee Springer is currently licensed in Florida as a life and health agent, a general lines agent, and a health agent. The Department of Insurance has jurisdiction over her insurance license and appointments. On July 31, 1997, Christine Lee Springer pled nolo contendere to two felonies: presenting a false statement of insurance coverage and grand theft in the third degree. She was sentenced to three years' probation, restitution, and community service. Adjudication was withheld. Petitioner presented no evidence regarding Ms. Springer's failure to notify the agency of her plea and no evidence of any plea on September 12, 1997, as alleged in Count II, paragraph 7, of the Administrative Complaint. Nor did the agency present any evidence regarding the underlying offenses.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Insurance enter its final order finding that Christine Lee Springer violated Sections 626.611 (14) and 626.621(8), Florida Statutes, and suspending her license for two years. DONE AND ENTERED this 20th day of April, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 20th day of April, 2000. COPIES FURNISHED: Patrick F. Creehan, Esquire Department of Insurance Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Jed Berman, Esquire Infantino & Berman Post Office Drawer 30 Winter Park, Florida 32790-0030 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel State Treasurer and Insurance Commissioner The Capitol, Plaza Level 26 Tallahassee, Florida 32399-0300
