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Petitioner failed to disclose on his applications for examination that his insurance broker's license in New York had been revoked. In fact, he specifically answered "no" to the question on these applications concerning whether his license had ever been revoked in another state.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
Findings Of Fact At all times material hereto, Respondent is and has been eligible for licensure and licensed as a life insurance agent, a an ordinary life including health insurance agent, as a general lines insurance agent, and as a health insurance agent. On July 25, 1986, Respondent pled guilty and was found guilty in the United States District Court for the Southern District of Florida of conspiracy to possess with intent to distribute cocaine, a felony. He was sentenced to serve one year and one day in a penal institution and was fined $50. On September 10, 1986, Respondent pled guilty and was convicted in the United States District Court for the Southern District of Florida of conspiracy to import marijuana, a felony. He was given a five year sentence to run concurrent with his other sentence, with the requirement that six months be served in a jail-type institution, and with the execution of the remainder of the sentence of imprisonment being suspended. Additionally, Respondent was placed on probation for a period of five years to commence upon his release from confinement, was assessed a fine of $50, and was required to perform 250 hours of community service work during his first year of probation, 200 hours of community service work during his second year of probation, and 100 hours of community service work during his third year of probation. Other charges involving either the sale or possession of machine guns were dismissed. No underlying facts regarding the marijuana conviction were offered in evidence. Respondent and a companion negotiated with federal undercover agents for the sale of approximately 4700 automatic weapons (machine guns). Those discussions ultimately lead into negotiations for the sale of 15 kilos of cocaine. The final agreement was that the first transaction would involve 10 kilos of cocaine. On July 10, 1985, Respondent and two companions sold to the undercover agents 2 kilos of cocaine, Respondent explaining to the undercover agents that there would be a delay in him supplying the additional 8 kilos. The actual sale took place at Respondent's insurance office, as had many of the telephone contacts between Respondent and the federal agents. Respondent and his companions were arrested at Respondent's insurance office immediately following Respondent's sale of the 2 kilos of cocaine to the federal agents. Three firearms were seized from Respondent and his companions at the time of their arrests. No evidence was offered to show that Respondent has completed serving his probation or that his civil rights have been restored. Respondent has been licensed by Petitioner since 975. None of his insurance licenses have been previously revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the factual allegations contained within the Administrative Complaint filed herein, revoking Respondent's licenses, and revoking Respondent's eligibility for licensure as an insurance agent in this state. DONE and RECOMMENDED this 30th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 88-1374 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues under consideration herein. Petitioner's proposed findings of fact numbered 7 and 8 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Robert C. Byerts, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 Leslie L. Florez, Esquire Ocean Bank Building, Suite 604 780 N.W. LeJune Road Miami, Florida 33126 Don Dowdell, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300
Findings Of Fact Martin Daniel Patrick has been a life insurance agent for some 32 years. At all times material hereto he was the owner of Dan Patrick & Associates insurance agency at Brooksville, Florida. By Consent Order dated January 7, 1983, MOP's license as an Ordinary Life, including Disability, agent was suspended for a period of 60 days. By Emergency Order of Suspension dated August 3, 1983, his license was suspended based upon the allegations contained in the Administrative Complaint dated August 23, 1983. James R. Patrick has been in the insurance business since 1976. He owned the Jim Patrick Insurance Agency at all times relevant hereto and in August, 1982, purchased the Wardwell Insurance Agency. JRP is licensed as an Ordinary Life, including Disability, agent and as a General Lines agent, and is authorized to sell casualty insurance as well as life and health insurance. By Consent Order dated September 15, 1982 (Exhibit 9), JRP's license was suspended for a period of six months from the date of that order. After purchasing the Wardwell Insurance Agency, JRP decided to open a branch office in Brooksville and so notified the Insurance Commissioner (Exhibit 7). He intended to have Larry Kinner as office manager for the Brooksville office. Kinner had passed his examination but awaited licensure for a much longer period than usual. While awaiting Kinner's licensure, JRP took application forms to Brooksville, was given space in his brother's (MDP) office in Brooksville; employed his niece, Beverly Patrick, to take applications for automobile and other casualty insurance; visited Brooksville frequently to meet with customers to sell casualty insurance; was available by telephone to the Brooksville office when not physically in Brooksville; had another agent in the Wardwell office go to Brooksville frequently to sell policies and accept applications; and had Beverly Patrick forward all applications and premiums received to the Wardwell office at Bartow. After waiting about three months without Kinner receiving his license, JRP closed the Brooksville branch of Wardwell Insurance Agency. During the time this branch office was in existence in Brooksville, the Wardwell name did not appear on the door nor did Wardwell have a telephone number separate from that of Dan Patrick & Associates. The evidence was unrebutted that Beverly Patrick worked for and was under the supervision and control of the Wardwell Insurance Agency and not MDP. One of MDP's clients is James Gordon, who is employed by the Hernando State Bank as loan officer. In the fall of 1982 Gordon wanted to update his policies and talked to MDP about this during an incidental visit by MDP to the bank. Gordon worked up a spread sheet on his policies and arranged an appointment for MDP to come to his house to present a program to him and his wife. The exact date of this meeting was not established. At this meeting MDP presented a program to the Gordons, who wanted additional time to think about it. Within about two weeks of this meeting, Gordon notified MDP that he accepted the program and would have a check for the premium available when MDP next visited the bank. Gordon signed this application on February 7, 1983 (Exhibit 23), and wrote a check for the premium the same date. The only one to whom Gordon spoke about this insurance was MDP; however, his signature on the application was witnessed by David Pugh, a son-in-law of MDP who is a licensed insurance agent and works in the Dan Patrick agency in Brooksville. For the 60- day period following January 7, 1983, the license of MDP was suspended. Although the information regarding the program was probably prepared by MDP before January 7, 1933, the meeting with the Gordons at which the program was explained occurred subsequent to January 7, 1983. MDP contacted Vera Cannon in April or May, 1983, to update life insurance policies. He had sold her the original policy some ten years ago. On August 1, 1983, MDP picked up the existing policies from Vera Cannon to prepare a proposal to update the policies. She made an appointmemt with MDP for August 17, 1983, at which meeting MDP presented to her a proposal. David Pugh accompanied his father-in-law at this appointment. Respondent testified that he told Curtis Cannon, the husband of Vera Cannon, that his license was suspended and that Pugh would be handling the insurance; however, at the meeting with Vera Cannon, Respondent presented the proposals. MDP also contacted Becky Cannon, wife of Mark and sister-in-law of Vera, on August 18, 1983, for the purpose of selling additional life insurance. An appointmemt was made for August 22, 1983; however, Becky Cannon cancelled the appointment with MDP and set up another appointment for the following week. Before that date arrived, Becky recalled seeing something in the paper about Respondent's emergency suspension and called the insurance department. When told that MDP's license was suspended, Becky cancelled the appointment and told Vera that MDP's license was suspended. Vera then called Respondent's office to demand the return of the premium she paid. Pugh returned her check immediately. Gene Daniel is part owner of Branche-Daniel Corp d/b/a Brooksville Crown and Bridge. He contacted MDP regarding health insurance for his employees and for casualty insurance for his property. For this insurance he was referred to JRP, and he testified he purchased health insurance for his employees from Brenda Coley, a licensed agent in the Wardwell agency. Daniel does not recall when he spoke to MDP regarding his application for health insurance. Exhibit 22 contains an application, which appears to be dated January 10, 1983 (and 3-7-83) which is signed by Deanna L. Pugh, as agent, and a check signed by Daniel dated January 11, 1983. Daniel described himself as an absentee owner of the business to which he comes sporadically to sign documents and checks. No credible evidence was presented regarding the date of his conversation with MDP or that the latter did more than refer him to an agent licensed to sell the insurance Daniel desired. None of the parties to whom Respondents sold insurance allegedly in violation of Chapter 626, Florida Statutes, suffered any loss or complained of the treatment received from Respondents. During the time the Wardwell agency worked out of MDP's office in Brooksville, JRP's license was under suspension yet he was always available by telephone, when not in Brooksville, to answer questions from and give instructions to, Beverly Patrick. JRP testified that he made frequent trips to Brooksville, sometimes several days in one week. During these visits he met with customers to sell insurance.
Recommendation It is RECOMMENDED that the license of James Royal Patrick as an Ordinary Life, including Disability, and General Lines agent be suspended for a period of one (1) year. It is further RECOMMENDED that the license of Martin Daniel Patrick as an Ordinary Life, including Disability, agent be suspended for a period of one (1) year. ENTERED this 14th day of December, 1983, at Tallahassee, Florida. K. N. AYERS, 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 14th day of December, 1983. COPIES FURNISHED: Curtis A. Billingsley, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire 1300 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Honorable Bill Gunter Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
The Issue Whether the Petitioner is entitled to the license sought.
Findings Of Fact The Petitioner, Ralph Roque, Jr., was an applicant for licensure as a temporary limited surety/bail bond agent. On January 3, 2002, the Department issued a Notice of Denial regarding Petitioner's application. The denial alleged that the Petitioner was ineligible for licensure due to his past criminal record. The Petitioner timely challenged the denial of his application but did not appear for hearing nor present any evidence to support his entitlement to the license sought. The Petitioner did not dispute the factual allegations set forth in the Notice of Denial. See Election of Rights dated January 17, 2002. On June 22, 1987, the Petitioner pled nolo contendere to Possession of a Controlled Substance. The Petitioner was placed on probation. On January 8, 1988, the Petitioner's probation was revoked and he was sentenced to six months imprisonment for the violation of probation. On July 6, 2001, the Petitioner was charged with carrying a concealed firearm. He pled nolo contendere to the charge. The allegations of Petitioner's criminal possession of a controlled substance charge constituted a felony under Florida law. The allegations of Petitioner's carrying a concealed firearm charge constituted a felony under Florida law. The Petitioner presented no evidence to support his entitlement to licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a Final Order denying the Petitioner's application. DONE AND ENTERED this 25th day of July, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 25th day of July, 2002. COPIES FURNISHED: 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, Lower Level 26 Tallahassee, Florida 32399-0307 Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Ralph Roque, Jr. 11808 Southwest 125 Place Miami, Florida 33186
Findings Of Fact Respondent is a resident of the State of Illinois and is employed by Mutual Benefit Life Insurance Company as an associate, selling life and health insurance. He has been licensed by the State of Illinois as an insurance agent for 22 years and has engaged in the insurance business for that length of time. On or about February 26, 1988, the Florida Department of Insurance advised Respondent, by letter, that his application for taking the exam was denied for the following reasons: On or about January 11, 1982 you pleaded guilty to the offense of Forgery, a felony involving moral turpitude as contained in Count II of a Bill of Indictment for Case Number 81CF299. You failed to divulge the fact on your application for qualification as a nonresident agent that on or about April 28, 1982, your licensing authority in the State of Illinois was revoked; and that on or about December 14, 1982, the Director of Insurance's Order of April 28, 1982 revoking your licensing authority was rescinded and you were required to pay a civil penalty of One Thousand dollars ($1,000.00). The Department cited Section 626.785(1); 626.611(1), (2), (7) and (14); and Section 626.621(8), Florida Statutes, as authority for its action. In the latter part of 1977, Respondent sold to Dr. Hanshaw, of Quincy, Illinois, a $100,000.00 life insurance policy on each of Dr. Hanshaw's two children. The cash value of Dr. Hanshaw's existing life insurance was used to pay for the premiums on the children's policies. In 1979, the children's policies had lapsed due to Respondent's inability to get Dr. Hanshaw, owner of the policies, to execute a form reinstating the policies. Finally, after repeated attempts to obtain Dr. Hanshaw's signature on the reinstatement forms, and after a telephone conversation with Dr. Hanshaw, Respondent caused a person in Respondent's office to sign Dr. Hanshaw's name to the reinstatement forms in order to reinstate the insurance. Respondent then transmitted the forms to the home office and the policies were reinstated. Respondent's total compensation for the reinstatement was $30.68. Respondent felt he had the permission of Dr. Hanshaw to sign Dr. Hanshaw's signature to the forms. Approximately one year later, Dr. Hanshaw decided to surrender the policy on his life, and found the surrender value to be approximately $2,700.00 less than he felt it should be. The difference was due to the year's worth of premiums on the children's policies which had been deducted from the cash surrender value of Dr. Hanshaw's policy after the children's policies had been reinstated. Dr. Hanshaw promptly inquired of Respondent about the cash surrender value. At that time Respondent advised Dr. Hanshaw of the above reason for the lesser amount of the cash value. Respondent also reminded Dr. Hanshaw that he had caused Dr. Hanshaw's signature to be signed by a third party in order to prevent the children's policies from lapsing the previous year pursuant to Dr. Hanshaw's instructions. Dr. Hanshaw denied he had so instructed Respondent to reinstate the policies. Respondent then offered and Dr. Hanshaw accepted, a personal check from Respondent for the amount of the cash value loss allegedly experienced by Dr. Hanshaw. Some time thereafter, Dr. Hanshaw filed a Complaint with the Adams County Illinois State Attorney and on October 27, 1981, a Bill of Indictment was filed against Respondent. After plea negotiations, Respondent pleaded guilty to Count II of the Indictment (Forgery) and on March 22, 1982, the Court accepted Respondent's plea, dismissed all other Counts in the indictment, sentenced Respondent to two years probation and imposed a fine of $2,500.00, plus court costs. Part of the plea negotiation included the State Attorney's help in obtaining favorable treatment in any licensing procedure. On March 4, 1984, Respondent's Probation was successfully discharged. As a result of the aforesaid plea of guilty to forgery, a felony in the State of Illinois, the Illinois Department of Insurance issued an Order revoking Respondent's insurance license. However, the Order of Revocation did not take effect since Respondent timely sought a hearing on the allegations of the Order of Revocation. As a result of the hearing, Respondent's insurance license was not revoked. Instead, Respondent paid a civil penalty of $1,000.00, plus court reporter costs. Respondent testified that he was not aware of the consequences of his plea of guilty on other insurance licenses he might wish to obtain once he had discharged his debt to society. He has since discovered these effects, but after presentation of the above facts has been able to obtain other insurance licenses in other states. On or about September 24, 1987, Respondent filed an Application For Qualification as a Nonresident Life and Health Agent with the Department of Insurance. In that application, Respondent answered "No" to question 9 which asked if his license had ever been declined, suspended, placed on probation or administratively fined. However, on question 12, Respondent clearly states that he had been charged with and convicted of a felony, the location of that offense, that there was one charge of forgery, a $2,500.00 fine, two years probation, and that his Illinois license had been stayed. The negative response in question 9 forms the basis of Petitioner's reason for denial stated in paragraph 2(b) above. Respondent did not mislead, misrepresent or misstate anything to the Department of Insurance with his negative response to Question 9 of the Application. Respondent's license had clearly never been declined, suspended, placed on probation or revoked since the Illinois Order of Revocation never took effect. Nor did he mislead misrepresent or misstate anything to the Department with his negative response in reference to an administrative fine. He felt the fine he actually paid was not what question 9 was asking since he had paid a civil and not an administrative fine. He also thought that the license action was part and parcel of the criminal action. Nowhere in the application is "administrative fine" defined. Reasonable people can differ on the meaning of "administrative fine" especially where one state uses the term civil fine. These facts bear out the vagueness of the term's meaning. Before a person can misstate a fact there must be some agreement or mutual understanding as to what the fact is being stated for. There was clearly no such understanding in this case. The answer does not even come close to fraud since no intent to defraud the Department was demonstrated by the evidence. Additionally, his response to Question 12, together with the information he supplied along with the Application, was sufficient notice to the Department of the facts surrounding his Illinois license. The information supplied in Question 12 renders the response in Question 9 as immaterial. Therefore, the reasons given by the Department in Paragraph 2(b) above cannot stand as a basis for denying Respondent's licensure application. The reason given by the Department in paragraph 2(a) above involves the Respondent's forgery conviction. The forgery conviction does include an allegation of an intent to defraud. However, the facts of this case fails to demonstrate that moral turpitude was involved. This is especially true since this was a plea bargained case and the technical aspects of a crime do not bear the importance those aspects would if a trial had taken place or if Respondent had known the full effect such a plea would have on future licenses. Moreover, Respondent has rehabilitated himself. The Order rescinding the revocation of Respondent's license in Illinois specifically incorporates the Conclusion of Law made by the Hearing Officer, to-wit: "4. That, although convicted of the felony of forgery, the Licensee has demonstrated that he is sufficiently rehabilitated to warrant the public trust as required by Section 502(h) of the Illinois Insurance Code." Further, the testimony of Angelo P. Schiralli at the hearing attests to the honesty and trustworthiness of Respondent. Respondent is a person of honesty and trustworthiness and has had no problems with the law since 1979.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's application be accepted and he be permitted to take the Life and Health Agent's exam. DONE and ENTERED this 18th day of November, 198, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1625 The facts contained in paragraphs 1, 3, 4 and 10 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 2, 5, 6, 7, 8 and 11 of Petitioner's proposed findings of fact are adopted in substance, in so far as material. The facts contained in paragraph 9 of Petitioner's proposed findings of fact are irrelevant. The facts contained in the first two paragraphs of Petitioner's proposed findings of fact numbered 12 are adopted. The first sentence of the third paragraph is adopted. The last sentence of the third paragraph was not shown by the evidence. The fourth paragraph is adopted as to the first sentence. The remainder of the fourth paragraph is rejected. The first sentence of the fifth paragraph is subordinate. The remainder of the fifth paragraph is rejected. The first sentence of paragraph 13 of Petitioner's proposed findings of fact is subordinate. Remainder of the paragraph is rejected. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15 of Respondent's proposed findings of fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's proposed findings of fact are subordinate. COPIES FURNISHED: Robert C. Byerts, Esquire Department of Insurance Agency Regulation Section 413-B Larson Building Tallahassee, Florida 32399-0300 Donald H. Reed, Jr., Esquire First American Bank Building 2250 Glades Road Boca Raton, Florida 33431 Honorable William Gunter State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether petitioner has standing to challenge Rule 4-154.106(8)(c), Florida Administrative Code, pursuant to Section 120.56, Florida Statutes? If so, whether the rule is an invalid exercise of delegated legislative authority? Whether either party is entitled to attorney's fees?
Findings Of Fact The Challenged Rule Rule 4-154.106(8)(c), Florida Administrative Code, ("the challenged Rule") reads as follows: A policy which provides coverage for any one or more of the following services shall be considered a limited benefit policy if it either provides coverage for a benefit period of one year or less for each covered service, or provides coverage for only one of the following services; otherwise, such a policy shall be considered a long-term care policy as defined in s. 627.9404: Nursing home; Nursing service; Adult congregate living facility; Home health agency; Adult day care center; Adult foster home; Community care for the elderly; Personal care and social services. Petitioner's Ex. No. 2. New on January 1, 1975, and initially numbered Rule 4-37.06, the rule was amended on May 17, 1989. At the time of the amendment, the rule listed as specific authority "627.643, 624.308, 627.9407(1), Florida Statutes," id, and as law implemented "627.642, 627.643, 627.9404(1), Florida Statutes. The Parties Guarantee Trust Life Insurance Company is an insurance company which does business in Florida and is regulated by Respondent, the Department of Insurance. Guarantee Trust had and does issue insurance policies in those lines and kinds of insurance governed by the challenged rule. The Department of Insurance is the state agency invested with the responsibility of enforcing the provisions of the state Insurance Code and executing the duties imposed upon it by the code. Section 624.307(1), Florida Statutes. It is conferred with discretion to "adopt reasonable rules necessary to effect any of [its] statutory duties." Section 624.308, Florida Statutes. Standing A recent insurance policy filing by Petitioner was denied by the Department. Among the grounds for denial contained in a "letter of deficiencies" was one based on the policy's violation of the challenged rule. At the time of hearing, the Department had attempted to amend the letter of deficiencies by motion to eliminate application of the challenged rule to the policy filing as a ground for its denial. But the motion had not been ruled on by the time of hearing, having been filed only six or seven days earlier. Although the Department has not yet made an effort to provide general notice to the companies it regulates that it has or will cease relying on the challenged rule, the Department's current practice with regard to the rule is that it is not enforcing the rule. Consistent with this practice, the Department has received filings that it would not have approved had it been applying the challenged rule. Yet, these filings, four or five in number, have been approved. Instructions have been issued within the Department not to apply the challenged rule to filings. Consistent with the instructions with regard to application of the challenged rule, the Department is uniformly applying the change in policy. There is no insurance company subsequent to the policy change and decision to no longer apply the rule whose policy has been denied on the basis of application of the challenged rule. In the case of Petitioner's disapproved filing now the subject of a Section 120.57 proceeding, non-compliance with the challenged rule "no longer exists as a deficiency" (Tr. 43) in the view of the Department.
Findings Of Fact At all times material hereto, Respondent has been licensed in the State of Florida as a life and health insurance agent. His licensure as a life and variable annuity contracts agent occurred on April 5, 1993. On September 9, 1994, Respondent pled nolo contendere to criminal charges pending before the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. The charges were third degree grand theft, a felony, and practicing law while his license was suspended, a misdemeanor. Upon entry of his plea, adjudication was withheld, and Respondent was placed on probation for two years and ordered to make restitution in the amount of $400. Respondent did not notify Petitioner in writing within 30 days after pleading nolo contendere to that felony. Respondent's plea and criminal charges related to a fee in the amount of $l,000 which Respondent collected from a client to perform legal services at a time when Respondent's license to practice law was suspended. Although Respondent refunded $600 of that fee to the client, Respondent determined that the client had received $400 worth of services and refused to refund that amount until after the client filed litigation and obtained a civil judgment against Respondent. On or about October 20, 1995, the Florida Department of Corrections filed with the Broward County Circuit Court an affidavit alleging that Respondent had violated the Circuit Court's Order of Probation in a number of different ways. Based upon that affidavit, the Circuit Court issued a Warrant for Respondent's arrest on October 24, 1995. On January 11, 1996, Respondent was disbarred, effective immediately, by the Supreme Court of Florida. At the time of the final hearing in this cause, Respondent was not actively engaged in the insurance business. Rather, Respondent had been employed at the Miami Market for approximately 1-1 years, taking inventory and supervising crews.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the First Amended Administrative Complaint filed against him and revoking his licenses and his eligibility for licensure as an insurance agent. DONE and ENTERED this 5th day of March, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 5th day of March, 1996. APPENDIX TO RECOMMENDED DOAH CASE NO. 95-4700 Petitioner's proposed findings of fact numbered 1, 4-12, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed finding of fact numbered 14 has been rejected as being subordinate to the issues herein. COPIES FURNISHED: Ross S. Burnaman, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mr. David Felix Monaco Apartment 207E 7610 Stirling Road Hollywood, Florida 33024 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Respondent timely filed a written request for an administrative hearing, and, if not, whether the doctrine of equitable tolling provides a defense to the applicable deadline for filing a petition for hearing.
Findings Of Fact The Department is the state agency charged with enforcing workers’ compensation coverage requirements in Florida, including the requirement that employers secure workers’ compensation coverage for their employees. See § 440.107(3), Fla. Stat. Following an investigation to determine whether Respondent had secured sufficient workers’ compensation insurance coverage, the Department served a Stop-Work Order and Order of Penalty Assessment on Respondent on September 10, 2015. The Department served an Amended Order of Penalty Assessment on Respondent on October 15, 2015. The Department served a 2nd Amended Order of Penalty Assessment (the “Penalty Assessment”) on Respondent on December 14, 2015. With the Penalty Assessment, the Department also provided Respondent a document entitled “Notice of Rights.” The Notice of Rights advised, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. * * * You must file the petition for hearing so that it is received by the Department within twenty- one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, FL 32399-0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Dale Russell, Compliance Investigator with the Department, personally served the Penalty Assessment along with the Notice of Rights on Respondent. As established by the Certificate of Service on the Penalty Assessment, as well as Mr. Russell’s testimony, Mr. Russell hand-delivered the documents to Respondent on December 14, 2015. Mr. Russell personally served the documents on Jose Fuentes, Respondent’s owner and general manager. Mr. Russell also reviewed with Mr. Fuentes the Notice of Rights. Mr. Russell discussed the import of the 21-day deadline to request a hearing to dispute the Penalty Assessment. Twenty-one days after December 14, 2015, is January 4, 2016. Respondent submitted to the Department a letter requesting review of the Penalty Assessment. Respondent’s letter is dated January 11, 2016. The Department received Respondent’s letter on January 12, 2016. At the final hearing, Mr. Fuentes testified regarding his handling of the Penalty Assessment and request for a hearing on behalf of Respondent. Mr. Fuentes acknowledged that he personally received the Penalty Assessment from Mr. Russell on December 14, 2015. Mr. Fuentes explained that his delay in submitting his letter to the Department was based on difficulties his family was experiencing at that time. His wife was facing surgery. Consequently, he was focused on her medical concerns, as well as caring for their three children. Unfortunately, he lost track of the time in which to file the petition. Based on the evidence set forth at the final hearing, the Department established that Respondent did not file its petition requesting administrative review with the Department within 21 days of Respondent’s receipt of the Penalty Assessment. Therefore, the legal issue to determine is whether Respondent’s petition should be dismissed as untimely filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Financial Services, Division of Workers’ Compensation, enter a final order dismissing Respondent’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016.
Findings Of Fact On March 23, 1992, Petitioner executed and subsequently submitted to Respondent agency his sworn application for licensure as a life and variable annuity and health insurance agent. On November 9, 1992, the Respondent notified Petitioner by Denial Letter that his application for licensure had been denied because his nondisclosure of past felony convictions and his representation that he had no such convictions was deemed a material misrepresentation and because the convictions themselves constituted a bar to licensure. The denial named the convictions and cited applicable statutes. On his application, Petitioner had been asked several questions in a run-on sentence. He filled in the answer NO to each element of the sentence as follows: "Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude NO, or a felony NO or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered? NO" However, on June 3, 1985, Petitioner was charged in the United States District Court for the Eastern District of Virginia with one count of Possession with Intent to Distribute Cocaine, a felony punishable by one year or more of imprisonment in violation of Title 21 U.S.C. Section 841(a)(1) and Title 18 U.S.C. Section 2, and one count of Travel in Interstate Commerce With Intent to Promote, Manage, Establish and Distribute Cocaine, a felony punishable by one year or more imprisonment in violation of Title 18 U.S.C. Sections 1952(a)(3) and (2). On August 23, 1985, Petitioner was found guilty and convicted of the foregoing felony charges and was sentenced to five years in federal prison followed by a special parole term of three years. At the time of formal hearing, Petitioner was serving his probationary term and was under parole supervision. On July 23, 1987, Petitioner was found guilty of criminal contempt of court in violation of Title 18 U.S.C. Section 401 and Rule 42 of the Federal Rules of Criminal Procedure and was sentenced to ninety days imprisonment. Petitioner has made significant amendment of life and life-style since his incarceration and during parole. He is gainfully employed, happily married, and the father of a seventeen month old child. He seeks employment in the insurance industry to further better himself and contribute to society. He testified that he answered the first part of the question as "no" because he did not consider his crimes to be crimes of moral turpitude, which, in his opinion, would be such crimes as fraud or child molestation. As to the rest of the question, he stated that he had no recollection of answering "no," but admitted he signed the application verifying the answer, "no" as true. He suggested that he may have been interpreting each successive element of the question as relating back to "crimes of moral turpitude," when he answered "no".
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Insurance enter a final order ratifying its denial of Petitioner's application for licensure. RECOMMENDED this 21st day of May, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1993. APPENDIX TO RECOMMENDED ORDER 92-2060 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's proposals are not numbered and constitute only admissions and argument. The admissions have been incorporated in the findings of fact as appropriate. The paragraphs of argument are rejected as argument and because they are not proposed findings of fact. Respondent's PFOF: Respondent's proposed findings of fact 1-9 are accepted in substance except where unnecessary, subordinate or cumulative. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300 John R. Dunphy, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, FL 32399-0300 Carlos A. Salas 10150 Arrowhead Drive East Unit #5 Jacksonville, FL 32257
The Issue The issue is whether Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes.
Findings Of Fact USB is a general contractor engaged in the construction industry and is properly registered to conduct business in the State of Florida. The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. On May 30, 2007, Department Investigator Teresa Quenemoen conducted an investigation or compliance check of USB to determine liability for workers’ compensation coverage. As a result of that investigation, an Order of Penalty Assessment was issued on June 18, 2007, assessing USB a penalty in the amount of $14,983.95. Attached on the opposite side of the page from the Order was a Notice of Rights directing the recipient how to properly respond if he wished to contest the penalty. Quenemoen received a letter, dated June 21, 2007, from J. Roland Fulton, President of USB, which states that he “strongly disagrees” with the Department’s allegations that USB failed to secure adequate workers’ compensation coverage and he wants to “resolve” the matter and “void the Order of Penalty.” If the Department could not make that happen, he wanted to have the “Appeal Procedures.” In a consultation with her Supervisor, Robert Lambert, regarding how to respond to Fulton’s letter, Quenemoen was advised to immediately contact USB and advise them of the Notice of Rights and timeline requirements for any petition they may wish to file. This conversation took place well within the 21-day period for request of formal administrative proceedings. Quenemoen was also advised to provide a copy of the Notice of Rights to USB. Quenemoen, however, delayed taking any action until she contacted USB via letter on August 3, 2007, after the expiration of the timeline requirements for timely filing which occurred on July 9, 2007. Quenemoen indicated within her August 3, 2007 letter to USB that the original date of the Order was the operative date. Robert Lambert testified that the June 21, 2007, letter of USB’s president contained most of the requirements considered necessary for the letter to have been viewed as a petition for administrative proceedings and would have been so considered had the words “Petition for Hearing” appeared at the top of the page. He is also unaware of any prejudice that would result to the Department if the matter of penalty assessment against USB were permitted to proceed to a hearing on the merits of the matter. Quenemoen, in her deposition, opines she did not consider the June 21, 2007, letter to be a petition because she thought it lacked crucial items, such as an explanation of how the party’s substantial interests would be affected by the agency’s decision; disputed items of material fact; and a concise statement of ultimate facts alleged. Quenemoen’s August 3, 2007 letter to USB, inquired why USB had neither paid their penalty nor entered into a Payment Agreement Schedule for Periodic Payment of Penalty, pursuant to Section 440.107, Florida Statutes. The letter re-informed USB that it had 21 days from the receipt of the original Order of Penalty Assessment to file a petition for hearing. On August 23, 2007, the Department received a Petition for Hearing from USB’s counsel. The Department determined the Petition filed by USB met the content criteria but failed on timeliness as it was filed more than forty days past the deadline of July 9, 2007. USB, through the testimony of its President, Mr. Fulton, admitted that he was not “familiar with the law. I did not go look it up.” He also said, “I did not think I needed to go back and consult the textbook of the law.” When asked if he ever decided to consult with a lawyer during the 21-day period, he stated he did not.
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 that Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes, and proceed forthwith with provision of such proceedings. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 30th day of April, 2008. COPIES FURNISHED: William H. Andrews, Esquire Coffman, Coleman, Andrews and Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Marc A. Klitenic, Esquire Kandel, Klitenic, Kotz and Betten, LLP 502 Washington Avenue Suite 610 Towson, Maryland 21204 Kristian E. Dunn, Esquire Anthony B. Miller, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Daniel Y. Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 The Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
