The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Daniel Bruce Caughey has been licensed by petitioner as an insurance agent at least since 1981. He began working for Caughey Insurance Agency, Inc. in 1971 as a file clerk. Once he was licensed, he worked as a salesman. In 1977, he assumed the executive vice-presidency of the agency, a position he still holds. Until the middle of March, 1983, respondent'- father, William Edward Caughey, managed the agency. He continues to own all 1,000 shares the corporation has issued, although he has not written a policy since he turned management of the agency over to the respondent and his brother Randy in 1983. In 1982 and thereafter until Jordan Roberts and Company, Inc. (JORO), a multi-line general agency, stopped underwriting automobile insurance, Caughey Insurance Agency, Inc. brokered automobile insurance through JORO. When an account current bookkeeping dispute arose between Caughey Insurance Agency, Inc. and JORO, William Edward Caughey retained an accounting firm, Sizemore. On Sizemore's advice, he rejected JORO's claim for more than $20,900. On October 21, 1983, a JORO representative told Daniel Bruce Caughey that JORO would no longer deal with Caughey Insurance Agency, Inc. unless he signed an "Individual Guarantee Agreement," personally guaranteeing the insurance agency's corporate indebtedness; and executed a promissory note in JORO's favor in the amount of $16,941. Respondent executed the documents. On December 3, 1986, JORO brought suit against the corporation and respondent personally. No. 86-21454 (Fla. 13th Cir.). On August 13, 1987, the court entered judgment against both defendants in the amount of $6,595.94. Jordan Roberts & Co. v. Cauqhey, No. 86-21454 (Fla. 13th Cir.; Aug. 13, 1987). Neither respondent nor the agency has paid the judgment. With the possible exception of filing the complaint that eventuated in the present proceedings, JORO has made no effort to collect. In Count I, JORO's complaint alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by ?CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William E. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. At hearing, both Daniel Bruce Caughey and William Edward Caughey testified that neither had withheld premiums owed JORO, and this testimony was not controverted.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 2nd day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8 and 9 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, respondent became an officer after the brokerage agreement had been executed. With respect to petitioner's proposed finding of fact No. 7, the judgment could also be based on the promissory note. With respect to petitioner's proposed finding of fact No. 6, respondent did not sign as an individual guarantor. Respondent's proposed findings of fact Nos. 1 through 10 and 12 through 18 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, evidence respondent himself adduced showed that the judgment had not been satisfied. COPIES FURNISHED: Robert V. Elias, Esquire 412 Larson Building Tallahassee, FL 32399-0300 Bruce A. McDonald, Esquire McDonald, Fleming & Moorehead 700 South Palafox Street Suite 3-C Pensacola, FL 32501 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, FL 32399-0300
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found Upon the suggestion of a special investigator with the Department of Insurance, a letter dated April 23, 1984, and signed by Northeast Regional Director Thomas P. Poston was written to the respondent at the address listed for him in the Tallahassee licensing office. This letter advised the respondent that the Department of Insurance and Treasurer had received complaints from Orange and Seminole Counties that he was recruiting clients during initial court appearances and that this appeared to be a violation of Section 648.44(b) of the Florida Statutes. The letter admonished respondent to immediately terminate such solicitation and advised him that any additional complaints would bring further action. The evidence does not establish whether respondent received this letter of April 23, 1984. The respondent was involved in another administrative proceeding with the petitioner, the facts of which were not brought into evidence in the instant proceeding. In the former proceeding, Case No. 84-L-3155, a Consent Order was entered which required respondent to pay an administrative fine of $1,000.00 and placed him on probation for a period of one year with the condition that he strictly adhere to the Florida Insurance Code. On or about December 4, 1984, Kenneth Martin was working on the property of Ray Dittmore. Respondent had previously, in July of 1984, written three bailbonds for Mr. Martin, all of which had been forfeited due to Mr. Martin's failure to appear in court. Upon learning of the whereabouts of Mr. Martin, respondent sent his employee, George Burfield, to Mr. Dittmore's property to apprehend Martin and return him to custody. Mr. Dittmore was present when Mr. Burfield arrived to take Martin into custody and felt that Mr. Burfield had misconducted himself during the apprehension process. After the incident, Dittmore telephoned respondent to complain about the conduct of his employee Burfield. Later that same day, Mr. Dittmore went to the Orange County Jail with his attorney, Warren Linsey, for the purpose of posting a cash bond for Kenneth Martin. There were prisoners confined in the Orange County Jail on December 4, 1984. While Mr. Dittmore was at the booking window counting his money, approximately $3,000.00, respondent approached him. Mr. Linsey recalls that respondent immediately introduced himself as a bondsman and offered his services. George Cox, also a bondsman, was present and recalls that when respondent saw Mr. Dittmore counting money at the window, respondent approached him, stated that he was a bail bondsman and informed him that Dittmore did not have to post the cash and could use him (respondent) instead. Mr. Dittmore recalls that after he told the deputy that he wished to bond out Kenneth Martin, respondent approached him at the window and asked him if he was the Dittmore he had spoken to earlier that day. Dittmore then recalls that respondent told him he didn't have to put up $3,000.00 because respondent could sell him a bond. According to Mr. Dittmore, respondent also told him that he wouldn't bond Martin out, that Dittmore was "dumb" for doing so and would end up losing his money. Respondent, who had previously written about $1,800.00 worth of bonds on Kenneth Martin and only received $216.00 as a remission for returning him to custody on December 4, 1984, recalls the incident at the Orange County Jail with Mr. Dittmore as follows. From his nearby position at the booking window, he could overhear and see that a "Dittmore" was there to post a bond for Kenneth Martin. After inquiring of Mr. Dittmore if he was the same Dittmore he had spoken with earlier, respondent introduced himself, apologized for what had happened earlier that day, begged him not to bail Martin out and told him he was foolish for doing so. He does recall later saying to George Cox that there were better ways to invest cash. Because respondent had previously lost money on Kenneth Martin, he had no intention of writing another bond on him on the same date he had been responsible for Martin's return to custody. Joseph Barrow was arrested on May 29, 1985, and was taken to the Seminole County Jail. At the time of his arrest, he had been drinking alcoholic beverages. Although subpoenaed to appear as a witness in this administrative hearing, Joseph Barrow was released and was not called upon to testify by the petitioner. According to sworn testimony taken on January 28, 1986, Joseph Barrow recalls that after he was fingerprinted at the Seminole County Jail on the evening of May 29, 1985, he called home to have his wife contact a bail bondsman to get him out of jail. He does not know if his family did contact a bondsman that night. However, he did speak with a bail bondsman that night at the jail, but could not remember his name. The description of the bondsman given in Joseph Barrow's statement of January 28, 1986, matched the respondent's physical appearance at the hearing. Joseph's wife, Michele Barrow, testified that her husband telephoned her the night he was arrested and asked her to find a bondsman. Neither the time of that telephone conversation nor the family's immediate response to that request were established at the hearing. On May 30, 1985, James Barrow, Joseph's brother; Donna Brino, Joseph's sister; and Michele Barrow, Joseph's wife, were at the Seminole County Jail for the purpose of getting Joseph out of jail. There were prisoners confined at the jail on that date. James recalls that, as he was standing in line to obtain information regarding his brother, respondent was also waiting in line and asked him why he was there. James replied that he was there to get his brother out of jail and asked respondent if he was a bondsman. Respondent stated that he was and asked James who his brother was. After James told respondent that his brother was Joe Barrow, respondent referred to a white piece of paper and replied that he had talked to Joe the previous night and had advised him to wait until the hearing that morning to see if his bond would be reduced. When James learned that he would need $250.00 to get his brother out of jail, he left the jail and went to the bank. When he returned to the jail, respondent approached him and asked him if he had gotten the $250.00. James recalls that when he replied that he had, respondent said "Well, give me the money, and I'll get your brother out of jail." James did not give respondent the money because his sister and sister-in-law who were standing behind respondent, were shaking their head "no." Joseph told James that he had spoken to a bondsman the night before, but could not remember the bondman's name. Michele Barrow recalls that as James was waiting in line at an information window, respondent approached him, asked if he needed a bondsman, and told James that he had spoken to Joseph the night before. At that point in time, Donna Brino, Joseph's sister, was on the telephone trying to contact a bondsman. Donna Brino did not hear the conversation which occurred between James Barrow and the respondent prior to James leaving the jail for the bank. She was aware that Joseph had spoken to a bondsman the night before and that he did not remember who that was. Because of her use of pronouns in lieu of names, Ms. Brino's description of the events which transpired on May 30th at the Seminole County Jail is unclear. She apparently telephoned Action Bail Bonds and left a message. While waiting for the message to be returned, she saw Bruce Moncrief, another bondsman, and spoke with him about writing her brother's bond. She stated that after she had already made arrangements with bondsman Bruce Moncrief, respondent told her she was stupid for using Moncrief and attempted to obtain the money from her brother James. Respondent testified that he was called to the Seminole County Jail by someone in the Barrow family on the evening of May 29, 1985. He went to the jail and spoke with Joseph Barrow. Upon learning that Joseph could not then afford to arrange for the $5,000.00 bail which had been set, respondent advised Joseph to wait until the next day when the amount of bail would be reduced. Respondent states that Joseph told him that his brother would get some money and would be contacting him. Respondent told Joseph that he would be at the jail the next day for the first appearances. Respondent also states that Joseph's brother, James, called him the next morning and he told James that it was better to wait until the first appearance and the reduction of the bond, that he would be at the jail for first appearances and that he would meet him there at that time. Respondent admits that he did approach James at the Seminole County Jail because he looked like his brother, Joseph, and said "I'm the one you're looking for. I talked to you this morning." After Joseph's bond was reduced to $2,500.00, respondent communicated this to James, and James left to go to the bank to get the money. At this point, respondent believed that he was going to write the bond, so he began preparing the papers and waited 30 to 45 minutes for James to return with the money. It was not until James returned from the bank that respondent learned he was not going to write Joseph's bond and that the family had obtained Mr. Moncrief instead.
Recommendation Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED that the Amended Administrative Complaint against the respondent be DISMISSED. Respectfully submitted and entered this day of September, 1986. DIANE D. TREMOR 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 10th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0462 The proposed findings of fact submitted by the petitioner and the respondent have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 6 and 7. Rejected, not supported by competent, substantial evidence. 8 and 9. Rejected. These ultimate conclusions are not supported by competent, substantial evidence. 11. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Rejected, not supported by competent, substantial evidence. 19 and 20. Rejected as Unsupported by the evidence. Respondent - Respondent's proposals contain unnumbered and mixed factual findings and legal conclusions. Each of the topics included has been addressed in either the Findings of Fact or Conclusions of Law section of this Recommended Order, except: Page 2, first paragraph Rejected as irrelevant and immaterial. Page 4, last full paragraph Rejected, Unsupported and irrelevant in light of factual findings and legal conclusions. COPIES FURNISHED: Richard W. Thornburg, Esquire Bill Gunter Department of Insurance Insurance Commissioner Legal Division and Treasurer 413-B Larson Building Department of Insurance Tallahassee, Florida 32301 413-B Larson Building Tallahassee, Florida 32301 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603
The Issue Whether Respondent's insurance license should be suspended or revoked or otherwise disciplined because Respondent violated the Florida Insurance Code.
Findings Of Fact The Department is the agency with jurisdiction over licensing insurance agents pursuant to Chapter 626, Florida Statutes. Respondent applied for a license with the Department as a non-resident life, health, and variable annuity agent by submitting an application which he signed on July 4, 1999. He was awarded nonresident insurance License No. D008927 on July 12, 1999. Question seven on the July 4, 1999, application for licensure, inquired, "Has anyone ever obtained a judgement, or is there currently pending, any type of civil action against you individually or against any entity in which you are or were an officer, director, partner, or owner based upon allegations of fraud, misrepresentation or conversion or which in any way involved the subject of insurance?" Respondent checked a box which indicated a negative answer. Because the application submitted by Respondent appeared to be correct, Respondent was issued the aforementioned license. On July 4, 1999, when Respondent answered question seven, a judgment by default had been entered against Respondent by the Circuit Court of Maryland for Montgomery County, in a case styled Paley, Rothman, Goldstein, Rosenberg & Cooper, Chartered, v. Daniel D. Manoff. The judgment was in the amount of $7,590.36 and was filed with the Clerk on July 6, 1994. The complaint which resulted in the judgment alleged that Respondent had failed to pay for legal services received. This complaint involved the breach of a contract. Therefore, Respondent's answer to question seven was correct, insofar as the unrevealed judgment is concerned, because the judgment did not involve a matter "based upon allegations of fraud, misrepresentation or conversion or which in any way involved the subject of insurance." A complaint was filed against Petitioner on May 18, 1998, in the Circuit Court of Maryland for Montgomery County, styled First Financial Group, et al., v. Daniel Manoff, et al., v. The Guardian Life Insurance Company of America, et al. Respondent was a defendant in that case. The suit which was the subject of the complaint was unresolved on July 4, 1999, when Respondent answered question seven. The complaint in the First Financial Group case alleged that Respondent committed fraud. Because of this, Respondent incorrectly answered question seven. When Respondent signed the application for an insurance license on July 4, 1999, he was aware, or was provided ample opportunity to be aware, that a truthful application was expected by the Department. This is because immediately above the signature line are the words, "Final Statement," and below those words are explicit warnings as to the hazards of signing the application when the person providing the imprimatur has not provided correct information. The warnings include one which informs that signing a false statement is a second degree misdemeanor and another that states that the signature is made under penalties of perjury. In addition to the foregoing, the "Final Statement" contains an oath which avers that, ". . . I have not withheld any information on myself that would in any way affect my qualifications." The information sought by question seven is material to the decision as to whether the Department considered Respondent to be qualified to hold an insurance license. Had the information requested been timely supplied, Respondent would not have been awarded a license absent further inquiry into his experiences with the legal system in Montgomery County, Maryland. Respondent worked for Agency 10 of the Berkshire Life Insurance Company in Rockville, Maryland, at the time he submitted the application for licensure which is the subject of this proceeding. The person charged with carrying out administrative duties at that agency was Kathy Cody. Among other duties, she was responsible for obtaining licenses and appointments for agents and managers in the Rockville field office. When processing applications, Ms. Cody, and sometimes another administrator in the office, typically would solicit information from the agent, broker or manager requiring a license and would prepare an application. She did this for many people for many states. Respondent was licensed in a number of states and Ms. Cody assisted Respondent in obtaining some of those licenses. She does not specifically remember the application at issue. It was Ms. Cody's practice to submit completed application forms to the home office in Pittsfield, Massachusetts. If the paperwork was in order, the home office would send the applications to the appropriate state licensing agency. Ms. Cody, or in any event, someone in the office other than Respondent, sent his Florida application to the home office. Respondent did not complete the entire application. He did, however, sign the application which meant that he swore to the accuracy of its contents. Sue Carter processes license applications for the Department. She has engaged in this work since 1984. According to Ms. Carter, if an application is received which reveals an unsatisfied judgment, then further inquiry is made. According to Ms. Carter, it is the policy of the Department to refuse to license someone with a pending complaint alleging fraud. Therefore, she stated, if Respondent's application had revealed the existence of the First Financial Group complaint, the Department would not have issued a license to Respondent.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which finds that Respondent violated on one occasion, Section 626.611(1), (2) and (7), and Section 626.211(1), Florida Statutes, and which requires Respondent to surrender his non-resident life, health, and variable annuity insurance agent license. DONE AND ENTERED this 8th day of April, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 8th day of April, 2002. COPIES FURNISHED: Daniel Dwight Manoff Post Office Box 267 Poolesville, Maryland 20837 Richard J. Santurri, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Plaza Level 26 Tallahassee, Florida 32399-0307
The Issue The issue in this case is whether Petitioner is entitled to be licensed as a "resident personal lines" insurance agent.
Findings Of Fact Petitioner was issued a Florida license as a "general lines" insurance agent in 1980. He started a business named Atlas Auto Insurance, Inc., in that same year. He sold Atlas Auto Insurance in 1990. He started Budget Insurance Center, Inc., in 1995 and sold that business in 1997. On August 2, 1994, a Final Judgment was issued in the Circuit Court for Leon County, Florida, in favor of the Department of Insurance, as Receiver of insolvent American Risk Assurance Company and National United Insurance Company, against Petitioner and Atlas Auto Insurance for failure to return unearned commissions of $1,138.96, plus interest and attorney's fees. On April 7, 1995, a Final Judgment was issued in the Circuit Court for Leon County, Florida, in favor of the Department of Insurance, as Receiver of insolvent Great Oaks Insurance Company, against Petitioner and Atlas Auto Insurance for failure to return unearned commissions of $259.95, plus interest and attorney's fees. On August 12, 1996, a Final Judgment was issued in the Circuit Court for Leon County, Florida, in favor of the Department of Insurance, as Receiver of insolvent General Insurance Company, against Petitioner and Budget Insurance Center for failure to return unearned commissions of $1,718.14, plus interest and attorney's fees. Based on Petitioner's failure to satisfy the Final Judgment in the General Insurance Company case, the Department of Insurance initiated an administrative proceeding to revoke Petitioner's license. On March 3, 1999, following a formal hearing at DOAH which Petitioner did not attend (DOAH Case No. 98-3776), the Department of Insurance revoked Petitioner's license. On August 29, 1996, two final judgments were issued in the Circuit Court for Leon County, Florida, in favor of the Department of Insurance, as Receiver of insolvent International Bankers Insurance Company, against Petitioner and Atlas Auto Insurance for failure to return unearned commissions of $6,914.90 and $1,579.31, plus interest and attorney's fees. On June 7, 2000, a Final Judgment was issued in the Circuit Court for Leon County, Florida, in favor of the Department of Insurance, as Receiver of insolvent Armor Insurance Company, against Petitioner and Budget Insurance Center for failure to return unearned commissions of $3,446.65, plus interest and attorney's fees. Petitioner has never made a payment on any of the six judgments against him. Petitioner insists that he received no notice of the civil actions cited above, or the final judgments that resulted. Petitioner learned about the 1996 Final Judgment regarding General Insurance Company when the administrative revocation case was initiated by the Department of Insurance, because that particular final judgment and Petitioner's failure to satisfy the judgment were the bases for the revocation action. According to Petitioner, he first learned about the other five cases in May 2005, when the Department informed him about them during the processing of his license application. Petitioner also stated that, except for the General Insurance Company case, he was no longer associated with the insurance companies involved in these civil cases and was not personally responsible for any of the unearned commissions. Each of the six final judgments of the Leon County Circuit Court indicated that a copy was sent to Petitioner. However, no address for Petitioner is stated. Each judgment is against an insurance company, as well as Petitioner, but the "cc" only lists the Department of Insurance attorney and Stephen Peter Alicino.1 That suggests the final judgments, and perhaps all notices, were sent to one address for both the insurance company and Petitioner. It is possible that all correspondence regarding the civil cases was sent to the businesses where Petitioner no longer maintained an office or was otherwise associated. It is also possible that the new owners of the businesses never informed Petitioner about the cases. Petitioner stated that when he was notified of other judgments resulting from the insolvency of insurance companies, he always paid those judgments. Petitioner has never had a civil action brought against him except in the context of insolvent insurer cases. The only evidence in the record regarding whether Petitioner received actual notice of the civil cases and their final judgments is the testimony of Petitioner and the "cc" on the final judgments. The more persuasive evidence, taking into account the demeanor of Petitioner during his testimony, is that he did not receive actual notice of the six civil cases and their final judgments.2 Petitioner filed an application for licensure as a resident personal lines insurance agent on or about May 24, 2004. In response to the question on the application about whether the applicant ever had a judgment against him in a civil action related to insurance, Petitioner answered "No." In response to the question on the application about whether the applicant has ever had his license revoked, Petitioner answered "Yes" and provided the Department of Insurance case number. The Department told Petitioner it would not process his application for licensure until the outstanding judgments were paid or a plan to satisfy the judgments was established. In three separate responses, Petitioner told the Department that he was not liable for the unearned commissions and should not have to pay them. Petitioner stated that he has had illnesses, financial problems, and family issues that have prevented him from making any payments to date on the one judgment that he acknowledges responsibility for, the 1996 Final Judgment regarding General Insurance Company. In his post-hearing submittal, Petitioner continues to urge that the judgments against him, except for the Final Judgment in the General Insurance Company case, be treated as erroneous and that he be granted a license upon his satisfaction of the General Insurance Company judgment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner’s application for licensure. DONE AND ENTERED this 11th day of July, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2006.
The Issue Whether Petitioner's request for reinstatement of his suspended insurance license should be granted.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Department is the agency of the State of Florida vested with the statutory authority to regulate the business of insurance, including the licensing of insurance agents, and to administer the disciplinary provisions of Chapter 626, Florida Statutes. Petitioner is, and at all material times was, licensed in Florida as an insurance agent and subject to the Department's regulatory jurisdiction. Petitioner's license was suspended on or about July 16, 2004. Petitioner's license suspension arises from a September 11, 2003, Final Order in Department case number 65103- 03-AG (Final Order) issued against the Petitioner. The Final Order determined that the Petitioner was guilty of violating Sections 626.651(1), 626.611(7), 626.611(9), and 626.611(10), Florida Statutes, and suspended his license and eligibility for licensure for a period of nine months. Petitioner exercised his right to judicial review of the Final Order. In due course, the Final Order was affirmed, per curiam, by the Florida Fourth District Court of Appeal. The suspension of Petitioner's license pursuant to the Final Order became effective with the issuance of an Order Terminating a Stay of Final Order entered on July 27, 2004 (the Order Terminating Stay). The Order Terminating Stay provided that Petitioner's license and eligibility for licensure would be placed on suspension for a period of nine months, commencing July 16, 2004. The Order Terminating Stay of Final Order also stated that: Pursuant to Section 626.641(4), Florida Statutes, during the period of suspension the Respondent shall not engage in or attempt or profess to engage in any transaction or business for which a license or appointment is required under the Insurance Code or directly or indirectly, own, control, or be employed in any manner by any insurance agent or agency or adjuster or adjusting firm. Pursuant to Section 626.641(1), Florida Statutes, Respondent's licensure shall not be reinstated except upon request for such reinstatement, and the Respondent shall not engage in the transaction of insurance until his license is reinstated. The Department shall not grant such reinstatement if it finds that the circumstance or circumstances for which the license(s) was suspended still exist or are likely to recur. Petitioner properly requested reinstatement of his license effective April 16, 2005. The Request for Reinstatement of Suspended License/New ID License Request form requires acknowledgment by the individual seeking reinstatement that: the circumstances which led to the suspension of my license(s) no longer exist and are not likely to recur . . . I understand that my request for reinstatement in no way guarantees that my license(s) will be reinstated. At all times material to this case, Petitioner was employed by American Professional Insurance, also known as Ampro (Ampro). More specifically, at all times relevant to the allegations made by the Department in its Notice of Denial, Petitioner was an employee, director, and shareholder of Ampro. Feehan, as previously noted, is the owner and operator of JTS, a cabinetry business. Feehan had been an insurance client of Ampro from 1999-2004 and had experienced no problems in the relationship. The business relationship between Feehan and Petitioner ended following a fire at JTS on July 29, 2004, when Feehan learned that there was no insurance coverage for the fire. Feehan filed a complaint with the Department, which complaint was investigated and thereafter formed the primary basis for the Notice of Denial. On or about May 4, 2004, Feehan executed a form provided by Petitioner for the purpose of renewing coverage for JTS for general liability as well as for the building that JTS occupied at 75 Northwest 18th Avenue (JTS building). Feehan paid for this insurance by check in the amount of $3,850.00. The check was made out to Ampro and was deposited into the payroll account of Ampro. At all times material to this case, Petitioner has exclusive signature authority for this account. Feehan knew the check he had issued had been negotiated and believed he had insurance for JTS through Ampro. Feehan never received a copy of any insurance policy for JTS, nor was Feehan provided any type of identification of the policy number. Feehan was instead provided by Petitioner with certificates of liability insurance which identified the Nautilus Insurance Company (Nautilus) as the insurer. Petitioner partially completed the certificates, omitting any specific policy number. Petitioner signed the incomplete certificates and provided them to Feehan. Feehan required the certificates to show its contractors that JTS had general liability insurance. On July 29, 2004, a fire occurred at JTS' building. Feehan attempted to make a claim. By this time, Petitioner's suspension had taken effect. Feehan made several unavailing efforts to contact Petitioner. Feehan eventually accepted the services of a freelance adjuster who was on the scene at the fire (the freelance adjuster). The freelance adjuster informed Feehan that JTS did not have any insurance coverage in place. Nevertheless, on his own initiative, Feehan then tried to contact the Continental Insurance Company (Continental) directly and file a claim. Feehan decided to contact Continental because Feehan had seen Continental's name on several of the documents provided to JTS from Ampro. Continental also informed Feehan that JTS had no insurance. As of October 19, 2005, Feehan had yet to receive a full or partial refund of the $3,850.00 Feehan had paid to Ampro for insurance coverage for JTS. Steve Finver (Finver) is the President of Continental Agency of Florida (CAF), a business which acts as an insurance wholesaler and assists retail agents in placing insurance coverage. Finver oversees the entire operations of CAF, which include Continental. Finver is an authorized representative of Continental and has access to the records kept in the ordinary course of business. Nautilus is among the insurance carriers that Finver works with. Finver had enjoyed a business relationship with the Petitioner and Ampro which dated back a generation. The relationship soured in the fall of 2003 over bad checks for policies of insureds that Ampro wrote to Continental. In response, Finver imposed upon Petitioner a requirement that Ampro must henceforth pay by cashier's check or by finance draft. The relationship between Continental and Petitioner and Ampro ended when Finver learned that Petitioner had been arrested for fraud sometime in May of 2004, although Continental would continue to honor any quotes already rendered to Ampro clients. Continental quoted an insurance policy for JTS for Ampro in May of 2004. The quote was $3,226.76. A request to bind was made by Ampro, but Continental never received payment for the quoted JTS policy, so a policy was never issued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's request for reinstatement of his suspended insurance license. DONE AND ENTERED this 15th day of December, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 15th day of December 2005. COPIES FURNISHED: James Curran, Esquire 633 Southeast Third Avenue, Suite 201 Fort Lauderdale, Florida 33301 Michael T. Ruff, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 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 committed the violations alleged in the First Amended Administrative Complaint; and If so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent's Licensure Status Respondent is now, and has been at all times material to the instant case, a Florida-licensed life and health insurance agent. Counts I through VI At all times material to the instant case, Peter DeBello, Inc., d/b/a Emery Richardson Insurance (Corporation), a Florida corporation owned by Respondent's father, operated a general lines insurance agency (Emery Richardson Insurance) located in the state of Florida. The Corporation was formed to manage the assets of Emery Richardson, Inc., which assets Respondent's father had obtained through litigation. Respondent's father delegated to Respondent the authority to manage the affairs of the Corporation. The same day (in 1992) that the Corporation took possession of Emery Richardson, Inc.'s assets, it so notified the Department of Insurance (Department) by telephone. Shortly thereafter, Leo Joy, a Florida-licensed property and casualty insurance agent since 1961, was designated on a Department- provided form as the primary agent for Emery Richardson Insurance at its 240 Commercial Boulevard location in Lauderdale By The Sea, Florida, and the completed form was provided to the Department.3 At no time prior to the commencement of the instant administrative proceeding did Respondent himself personally notify the Department of the identity of Emery Richardson Insurance's primary agent. It was Mr. Joy who (in 1992) filled out the primary agent designation form and submitted it to the Department. Mr. Joy, however, did so on behalf of Respondent, who had verbally designated Mr. Joy as Emery Richardson Insurance's primary agent. Neither Respondent, Mr. Joy, nor any one else, has subsequently used the Department's primary agent designation form to advise the Department of Mr. Joy's continuing status as Emery Richardson Insurance's primary agent. In his capacity as president of the Corporation, Respondent, on behalf of the Corporation, in April of 1994, entered into an agreement (Agreement) with Ulico Casualty Company of Washington, D.C. (Ulico), which provided as follows: WHEREAS, the Applicant (Corporation), a licensed insurance agent and/or insurance broker, has heretofore obtained from the COMPANY (Ulico) or is desirous of obtaining from the COMPANY the placement of insurance for the Applicant's customers or principals, and WHEREAS, the COMPANY, using its facilities, has placed insurance for the Applicant or with whom Applicant has requested the placement of such insurance, NOW, THEREFORE, in consideration of the mutual promises herein contained, and for other good and valuable consideration, the receipt whereof is hereby acknowledged. It is mutually AGREED as follows: With reference to the placement of new insurance, Applicant shall submit to the COMPANY a separate application containing the name of each prospective insured, describing the risk to be considered for underwriting and binding. Applicant specifically understands and agrees that Applicant shall have no authority to authorize or write any insurance or bind any risk on behalf of the COMPANY without the prior written approval by a duly authorized representative of the COMPANY. With respect to any insurance heretofore placed with the COMPANY by the Applicant, and with respect to any insurance hereinafter placed by the Applicant, all premiums shall be payable to the COMPANY and such Applicant assumes and agrees to pay the COMPANY premiums on all the policies of insurance heretofore or hereinafter placed by Applicant with the COMPANY in accordance with the current statements rendered to the Applicant by the COMPANY, such payment to be made no later than 30 days after the month of issue of the insurance policy, or due date of any installment if issued on an installment basis, less any credits due to the Applicant for return premium, provided an appropriate credit memorandum therefor has previously been issued by the COMPANY to Applicant. In the absence of such credit memorandum, Applicant shall have no right of counterclaim or setoff with respect to any claimed credits due, but shall be required to establish entitlement to the same in a separate action. Applicant shall have the right, so long as Applicant is not indebted to the COMPANY, to deduct agreed upon commissions on each policy of insurance prior to remitting the remaining premium to the COMPANY. In the event that premiums on behalf of any insured party shall have been financed and refund of financed premiums are required from the COMPANY to the financing institution, Applicant shall forthwith refund and pay to the COMPANY all unearned commissions heretofore received with respect to such financed premiums. In the event that Applicant shall fail to make any payment to the COMPANY which is required to be made pursuant to this Agreement, within the time specified, the COMPANY shall have the right, at any time subsequent to the due date of payment, to cancel any policy on which the premium payments have not been remitted to the COMPANY, without prior notice to the Applicant, by sending notice of cancellation directly to the insured, except that Applicant shall continue to remain liable to the COMPANY for the payment of all premiums earned as of the date of cancellation which are collected by Applicant. Applicant represents that they are duly licensed as an insurance broker or agent for Casualty and Property Insurance as indicated in the States set forth below, and agrees that in the event that any license shall cease, terminate or be cancelled, that the Applicant will promptly notify the COMPANY accordingly. Applicant agrees, where required, to file at Applicant's expense, all necessary affidavits and collect all State or local premium taxes and to pay the same promptly to the respective taxing authorities on all insurance placed with the COMPANY, in accordance with the laws applicable in the State of licensing. No changes or modification of this Agreement shall be valid unless such change or modification is subscribed, in writing, by the COMPANY and Applicant. Ulico is one of approximately 47 insurance companies that Emery Richardson Insurance represents. In the past five years, Emery Richardson Insurance has received from clients in excess of seven or eight million dollars in premium payments, which it has deposited in its various checking accounts and then paid over to these insurance companies. Ulico is the only one of these 47 insurance companies to have experienced "problems" in receiving from Emery Richardson Insurance monies due. These "problems" are detailed below. On June 13, 1994, the Corporation opened a checking account (account no. 458-902279-9, hereinafter referred to as the "Account") with Savings of America at the bank's Hollywood, Florida, branch. The Peter Debello described on the signature card for the Account was Respondent's father. Respondent's father, however, through execution of a power of attorney, had authorized Respondent to act on his behalf in connection with the Account. On August 20, 1996, Respondent drafted and signed four checks drawn on the Account, which were made payable to Ulico: check no. 804, in the amount of $1,729.15, for "Teamsters #769, Policy #BOU 907"; check no. 805, in the amount of $1,071.65, for "Sheet Metal Appr. #32, Policy #CLU 668"; check no. 806, in the amount of $700.00, for "Sheet Metal #32, Policy #CLU 682"; and check no. 807, in the amount of $96.05, for "Painters L.U. 160, Policy #CLU 451." (These policies will hereinafter be referred to as the "Subject Policies.") On January 24, 1997, Respondent drafted and signed a check (check no. 882) drawn on the Account, in the amount of $7,500.00, which was also made payable to Ulico. Check nos. 804, 805, 806, 807,4 and 882 were sent to Ulico as payment for monies the Corporation owed Ulico (pursuant to the Agreement) for insurance coverage obtained from Ulico by the Corporation for its clients (as reflected in invoices Ulico sent the Corporation, which hereinafter will be referred to as the "Subject Invoices").5 At the time that he drafted and signed these checks and submitted them to Ulico, Respondent assumed that there were sufficient funds in the Account to cover the amounts of the checks. In drafting and signing these checks and submitting them to Ulico, Respondent did not make any statements or representations that he knew to be false or misleading. All five checks were returned by Savings of America unpaid, with the explanation, "insufficient funds," stamped on each check.6 (These checks will hereinafter be referred to as the "Dishonored Checks.") Ulico's premium collection manager, Gayle Shuler, spoke with Respondent, as well as with Mr. Joy, "many times" concerning the monies the Corporation owed Ulico. At no time did either Respondent or Mr. Joy indicate that they disputed the Subject Invoices7 (although Respondent and Mr. Joy did contest other invoices that they received from Ulico). Although aware that the Dishonored Checks had been returned due to insufficient funds8 and knowing that Ulico desired payment, Respondent failed to act promptly to remedy the situation. It was not until early 1998, after the commencement of the instant administrative proceeding, that Respondent, on behalf of the Corporation, took steps to address the matter. At that time, using Fidelity Express money orders purchased between February 26, 1998, and March 1, 1998, (which Respondent dated August 26, 1996), Respondent paid Ulico a portion ($1,867.70) of the total amount of the Dishonored Checks. The money orders were sent to Ulico by certified mail, along with a cover letter from Respondent. Respondent "backdated" the money orders to reflect "when [the monies owed Ulico] should have been" paid. He did so without any intent to mislead or deceive. There is no clear and convincing evidence that anyone other than Ulico was injured by Respondent's failure to timely pay over to Ulico the monies Emery Richardson Insurance had received from its clients for the Subject Policies (which monies belonged to Ulico). Respondent's failure to timely make such payments, it appears, was the product of isolated instances of carelessness, neglect and inattention on Respondent's part,9 which, when considered in light of the totality of circumstances, including his problem-free dealings with the other insurance companies Emery Richardson Insurance represents, were not so serious as to demonstrate a lack of fitness, trustworthiness or competency to engage in transactions authorized by his license. Count VII In August of 1986, Respondent visited Gary Faske, Esquire, at Mr. Faske's office in Dade County, Florida. The purpose of the visit was to have Mr. Faske complete the paperwork necessary to add Mr. Faske to his new employer's group major medical insurance policy with Union Bankers Insurance Company. After the paperwork was completed, Respondent left Mr. Faske's office with the completed paperwork, as well as a check from Mr. Faske's employer to cover the cost of adding Mr. Faske to the group policy.10 It is unclear what Respondent did with the paperwork and check after he left Mr. Faske's office. In October of that same year (1986), Mr. Faske took ill and had to be hospitalized on an emergency basis. He assumed that he was covered by his employer's group major medical insurance policy, but he subsequently learned that he was wrong and had to pay between $50,000.00 to $60,000.00 in medical bills. The evidence does not clearly and convincingly establish that Respondent (as opposed to Union Bankers Insurance Company or some other party) was responsible for Mr. Faske not having such coverage. Mr. Faske thereafter filed suit against Respondent and Union Bankers Insurance Company in Dade County Circuit Court. He settled his claim against the insurance company, but was unable to reach an agreement with Respondent. Respondent's case therefore went to trial, following which, on August 12, 1997, a Final Judgment11 was entered against Respondent in the amount of $40,271.00.12 Count VIII By filing an Address Correction Request, dated January 29, 1992, Respondent notified the Department that his new mailing address was 40 Hendricks Isle, Fort Lauderdale, Florida. The Department subsequently sent a letter, dated April 14, 1995, to Respondent at this 40 Hendricks Isle address. Respondent, however, "had just moved from that address," and the letter was returned to the Department stamped, "forward expired." In May of 1995, Respondent advised the Department in writing of his new mailing address. It is unclear whether such written notification was given more than, or within, 30 days from the date Respondent had moved to his new address.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations noted in the Conclusions of Law of this Recommended Order; (2) penalizing Respondent for having committed these violations by suspending his license for 18 months; and (3) dismissing the remaining allegations of misconduct advanced in the First Amended Administrative Complaint. DONE AND ENTERED this 12th day of February, 1999, in Tallahassee, Leon County, Florida. 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 12th day of February, 1999.
Findings Of Fact At all times here involved Respondent was licensed by the Florida Insurance Department as a general lines agent to represent Cotton Belt Insurance Company, Inc. and Industrial Fire and Casualty Insurance Co. (Exhibit l). In November, 1977 George Moore, Jr. contacted agent Hopkins to obtain a full coverage policy for his automobile. His previous policy had been cancelled (or would soon be cancelled). The application was filled out by Hopkins and on November 15, 1977 Moore executed the application (Exhibit 2) and gave Hopkins a check as down payment on the premium in the amount of $199.80. This check was negotiated by Hopkins on December 18, 1977. Several weeks later Moore had not received his policy and he asked Hopkins about the delay. Hopkins replied that he (Moore) should have his policy in another two or three weeks. At no time prior to Moore's January 9 automobile accident did Hopkins tell Moore that his application did not include collision coverage or that the application had never been submitted to the carrier. On January 9, 1978 Moore was involved in an automobile accident in which he was the responsible party. Upon informing Hopkins of the accident the latter advised Moore that he was covered. Hopkins later told Moore that he was not covered for collision but he came and took Moore's car to be repaired, stating that the repairs would not have to be paid for by Moore. When Moore contacted Insurance Company of North America (INA) he learned they had no policy covering him. He subsequently had to pay $300 for the repairs to his car. On February 2, 1978 INA received Moore's application from Hopkins with a check for down payment on the premium signed by Hopkins. Because rules of the Florida Joint Underwriters Association require applications be promptly submitted, INA denied Moore's application and so advised Hopkins. In the summer of 1978, Hopkins refunded to Moore the $199.80 payment Moore had made on November 15, 1977. By Order entered 18 January 1973 (Exhibit 4), Respondent was found guilty of six counts involving failure to remit collected premiums to the insurer, and failure to submit applications with premium payments received from clients. As a result thereof he was placed on probation for a period of two years and ordered to make restitution to all parties suffering loss from his unlawful acts.
Findings Of Fact On or about May 19, 1989, Viola DePeugh filed a complaint with the Department of Insurance, Bureau of Consumer Services, stating that the Petitioner, a licensed health and accident insurance agent for National States Insurance Company, visited the DePeugh home on or about May 4, 1989, and: tried to intimidate her and her husband; stated that the insurance agent who had sold them their Old Southern policy was "a crook and a liar" and not licensed by the Department; and stated that Old Southern had gone bankrupt and was about to go bankrupt again. The Respondent investigated the DePeugh complaint to the extent of interviewing the DePeughs and obtaining sworn written statements from them. Viola DePeugh's sworn written statement reiterated her May 19, 1989, complaint to the Department. She stated that the Petitioner had reviewed the DePeughs' Old Southern insurance policy, had stated that Old Southern had been bankrupt once before and was going bankrupt again, and had stated that her Old Southern agent was a "crook." Her husband, Forrest DePeugh, gave a sworn written statement that he had been present at the time of the Petitioner's statements to his wife and that he could verify his wife's statements. Besides the interviews with the DePeughs and their sworn written statements, the Department did not further investigate the DePeugh complaint. On or about September 21, 1989, the Respondent filed an Administrative Complaint charging the Petitioner with violations of parts of Chapter 626, Florida Statutes, based on the DePeugh allegations. The Administrative Complaint charges essentially that, in order to induce the DePeughs to change from their Old Southern policy to a policy the Petitioner was selling, the Petitioner falsely represented to the DePeughs that Old Southern Insurance Company had been in bankruptcy and was about to go bankrupt again and that the DePeughs' insurance agent was "a crook." The Administrative Complaint was referred to the Division of Administrative Hearings for a formal administrative proceeding and was assigned Case No. 89-5712. The Petitioner's defense to the Administrative Complaint was that he did not make the statements attributed to him, not that the statements were true. The Recommended Order in Case No. 89-5712 found that the Department did not prove by clear and convincing evidence that the DePeugh allegations were true. A Final Order dismissing the Administrative Complaint was entered on or about June 21, 1990. At the time of its filing on or about September 21, 1989, the Administrative Complaint against the Petitioner had a reasonable basis in law and in fact. If the DePeughs testified in accordance with Viola DePeugh's written complaint and sworn written statement, their testimony would have been legally sufficient to sustain the charges in the Administrative Complaint notwithstanding the Petitioner's denial of the charges. It was simply a case of the DePeughs' word against the Petitioner's word. There were no other witnesses, and there was no reason for the Respondent to think that further investigation would have uncovered extrinsic evidence that would support the Petitioner's denial of the charges or impeach the credibility of the DePeughs. Under these circumstances, it was not unreasonable for the Respondent to file the Administrative Complaint against the Petitioner.
Findings Of Fact 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
