The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent, the Department of Insurance, should pay reasonable attorney fees and costs to Crudele under Section 57.111, Florida Statutes (1997), the Florida Equal Access to Justice Act, after Crudele appealed and reversed the Department's Emergency Order of Suspension.
Findings Of Fact On July 15, 1996, the Department issued an Emergency Order of Suspension of Crudele's eligibility for licensure and license as a Florida life insurance agent and life and health insurance agent. The Emergency Order of Suspension was based on alleged violations of the insurance code in connection with the surrender of insurance annuities for purchase of a startup company's unsecured promissory notes. It stated: Based on the foregoing specific facts and for the reasons of protecting the insurance-buying public and insurers from further harm, preventing further abuses of fiduciary relationships, and preventing further defrauding of insureds and insurance companies by the [Petitioner], the Insurance Commissioner finds that [Crudele] constitutes and is an immediate and serious danger to public health, safety, or welfare necessitating and justifying the Emergency Suspension of all licenses and eligibility for licensure and registrations heretofore issued to [Crudele] under the purview of the Department of Insurance. The danger, more specifically, is to the insurance-buying public which must place its trust in the honesty and competence of insurance agents. The trust involves the responsibility that insurance agents have for fiduciary funds accepted by them and insurance matters entrusted to them. The danger is clear and present that failure to properly handle such funds and matters may cause serious losses and damage to the insurance-buying public. Prior to issuance of the Emergency Order of Suspension, the Department received two verified complaints--one by the alleged victim, and the other by her adult daughter. The complaints alleged essentially: Crudele was introduced to Mary Clem, an 84 year-old widow of a tenant farmer, by Charles Perks, Clem's insurance agent, in 1992. In 1992, Crudele and Perks solicited and sold Clem two annuities for a total of $50,000, representing Clem's life savings from working in sick people's homes as a nurses aide. A year after selling the annuities, Crudele and Perks returned to Clem and convinced her to invest the money she had in her annuities into a new company called Zuma that was to recycle automobile tires into useful products. Crudele and Perks represented that Zuma was a "sure fire business." They said they were offering Clem the opportunity to get "in on the ground floor" and that the stock would then go on the open market and double in value. Clem did not have a great deal of education and had no experience investing in stocks or bonds. Her sole source of income was Social Security plus her modest savings. She conceded that when she was offered a 12% interest rate, she found the offer too irresistible to refuse. Neither Crudele nor Perks gave Clem a prospectus or any other descriptive brochure about Zuma. Clem purchased a total of three Zuma promissory notes at three separate times for a total of $60,000. This represented the bulk of her retirement savings. Clem acted based on her trust and confidence in Crudele and Perks. Clem later went to a lawyer to draft a will. The lawyer became very concerned about Clem's purchases of the Zuma promissory notes and her inability to understand the nature of the transaction. Clem was not getting any of her payments from Zuma as promised. Clem was "going out of her mind" with worry. She summoned her daughter, Roberta Anderson, to come down to Florida from Indiana to investigate the matter. Anderson was unable to contact Crudele, and he did not contact her. Anderson and Clem were not aware of any efforts on Crudele's part to recover the funds or otherwise remedy the situation. After a great deal of effort, Anderson was able to recover approximately $23,000 of her mother's money. Crudele apparently played no part in helping Anderson recover the $23,000. The Zuma notes went into default, and apparently the remainder of the money was lost. Clem suffered a very serious financial loss that, given her circumstances, she could ill afford. It may be inferred from the evidence that the Department based its Emergency Order of Suspension on the Clem and Anderson verified complaints. There was no evidence of any other basis for the Emergency Order of Suspension. There was no evidence as to whether the Department conducted any investigation of any kind prior to entry of the Emergency Order of Suspension. Nor is there any evidence as to the Department's decision-making process. The Emergency Order of Suspension stated: (1) that it was being issued pursuant to "sections 120.59(3) [and] 120.60(8) [now Section 120.60(6), Florida Statutes (1997)], Florida Statutes [1995]; (2) that Crudele had "the right to request a hearing in accordance with the provisions of Section 120.59(4), Florida Statutes [1995]"; and (3) that Crudele "was entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes [1995], and Rule 9.110, Florida Rules of Appellate Procedure." The Emergency Order of Suspension also stated that an Administrative Complaint seeking final disciplinary action would be filed within 20 days. On July 15, 1996, the Department filed an Administrative Complaint on essentially the same allegations as those in the Emergency Order of Suspension. Crudele sought judicial review of the Emergency Order of Suspension in the District Court of Appeal, First District. On August 19, 1997, the court issued an Opinion reversing the Emergency Order of Suspension because it did not "set forth particularized facts which demonstrate sufficient immediacy or likelihood of continuing harm to the public health, safety, and welfare to support a suspension of his license without notice and hearing." The court's Mandate issued on September 4, 1997; it referred to the court's Opinion and commanded that "further proceedings, if required, be had in accordance with said opinion, the rules of Court, and the laws of the State of Florida." The Administrative Complaint filed against Crudele was given Division of Administrative Hearings (DOAH) Case No. 97-2603. On February 17, 1998, a Final Order sustaining some of the charges and suspending Crudele's license and eligibility for licensure for six months was entered in Case No. 97-2603.
The Issue The issue in this case is whether Respondent, Amelia Kay Jacobs, committed the offenses alleged in an Administrative Complaint entered by the Insurance Commissioner of the State of Florida on February 20, 1998.
Findings Of Fact Petitioner, the Department of Insurance (hereinafter referred to as the "Department"), is an agency of the State of Florida charged with the responsibility for, among other things, the licensing and discipline of insurance representatives in Florida. Chapter 626, Florida Statutes (1997). Respondent, Amelia Kay Jacobs, is currently licensed by the State of Florida as a nonresident life and health agent. Ms. Jacobs agent number is 510427789. On or about July 24, 1980, a Complaint/Information was filed in the District Court of the Eighteenth Judicial District in and for Sedgwich County, Kansas, charging Ms. Jacobs with one count of Giving a Worthless Check in violation of Section 21- 3707, Kansas Statutes, a Class E Felony. On or about April 28, 1981, Ms. Jacobs entered a plea of guilty to the charge of Giving a Worthless Check before the Kansas District Court. The Court adjudicated Ms. Jacobs guilty as charged, but withheld sentencing for a period of one year from June 26, 1981. Ms. Jacobs was subsequently released early from probation. On or about May 20, 1996, Ms. Jacobs swore to and signed an Insurance License Application (hereinafter referred to as the "Application") with the Department. Ms. Jacobs filed the Application seeking licensure as a nonresident life and health agent. On the Application Ms. Jacobs, while under oath, responded "NO" to the following questions: 13. Have you ever been convicted of, found guilty of, or pleaded no contest to a crime involving moral turpitude No (yes or no), or a felony No (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or country, whether or not a judgment of conviction has been entered? No (yes or no) If yes, give date(s): N/A Ms. Jacobs knew or should have known that her answers to question 13 were false and a material misrepresentation of fact. The Department relied upon the incorrect misrepresentation of Ms. Jacobs to question 13 on the Application in approving the Application. Ms. Jacobs was informed by the Department by letter dated August 14, 1996, that the Department had received information concerning the foregoing. The Department gave Ms. Jacobs an opportunity to explain the incident or to withdraw her Application because she was a first-time applicant still on probation. On or about February 20, 1998, the Insurance Commissioner entered an Administrative Complaint against Ms. Jacobs. The complaint was based, in part, on the incident described, supra. On or about February 28, 1998, Ms. Jacobs executed an Election of Rights form denying the factual allegations of the Administrative Complaint and requesting a formal administrative hearing. Rule 4-231.160(2), Florida Administrative Code, lists certain aggravating and mitigating circumstances which should be considered in determining the appropriate penalty for a violation of Sections 626.611(14) or 626.621(8), Florida Statutes (1997): The number of years since the criminal proceeding: It has been 18 years since Ms. Jacobs was charged with Giving a Worthless Check in violation of Section 21-3707, Kansas Statutes. Age of licensee at the time the crime was committed: Ms. Jacobs was 36 when the offense was committed. Whether licensee served time in jail: The evidence failed to prove that Ms. Jacobs served time in jail. Whether or not licensee violated criminal probation: Ms. Jacobs did not violate probation. She was released from probation early. Whether or not licensee is still on criminal probation: The evidence failed to prove that Ms. Jacobs is still on probation. Whether or not licensee's actions or behavior resulted in substantial injury to the victim: Ms. Jacobs made restitution of the amount of the worthless check. The victim, therefore, did not suffer substantial injury. Whether or not restitution was, or is being timely, paid: Ms. Jacobs made restitution. Whether or not licensee's civil rights have been restored: Ms. Jacobs' civil rights were not impacted. Other related factors: The evidence failed to prove that any other factors apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Insurance finding that Amelia Kay Jacobs has violated the provisions of Sections 626.611(2), (7), and (14), and 626.621(1) and (8), Florida Statutes (1997), as alleged in the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Jacobs violated Sections 626.611(1) and (13), and 626.621(2), Florida Statutes (1997), be dismissed. It is further RECOMMENDED that the nonresident life and health agent license issued to Ms. Jacobs be suspended for a period of six months from the date of the Final Order. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance 645A Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Amelia Kay Jacobs Post Office Box 8073 Wichita, Kansas 67268-8073 Bill Nelson State Treasurer and Insurance Commission The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Joseph Anthony Isabella, was licensed by Petitioner, Department of Insurance (Department), as a life insurance agent, having been issued license number A128269. On July 26, 1989, an Information was filed in the Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Florida, Case No. 89-10384CF A02, charging Respondent with one count of obtaining property or services in return for a worthless check, contrary to Section 832.05(4), Florida Statutes. Specifically, the Information alleged that: . . . JOSEPH ANTHONY ISABELLA on or about the 15th day of DECEMBER, 1988 in the County of Palm Beach and State of Florida, did unlawfully obtain services, goods, wares or other things of value from ABE GREEN, by means of a check in the amount of $8,515.00 drawn on the CAPITAL BANK, a banking corporation, bearing account number 4203001757, knowing at the time of the drawing, making, uttering, issuing or delivering of the said check that the said JOSEPH ANTHONY ISABELLA had not sufficient funds on deposit in or credit with such bank with which to pay the same on presentation. . . . Such offense constituted a felony of the third degree. On or about March 8, 1991, Respondent pled guilty to the charge, and on March 20, 1991, the court entered an order (nunc pro tunc to March 8, 1991) withholding adjudication of guilt and placing Respondent on probation for a period of one year under the supervision of the Department of Corrections. The conditions of probation included the following: PROBATION TO TERMINATE ONCE RESTITUTION IS PAID IN FULL. PAY $7,000.00 RESTITUTION TO ABE GREEN. Respondent failed to make restitution to Mr. Green, and on January 6, 1992, an affidavit of violation of probation was filed and a warrant was issued; however, the warrant was not executed, returned, and filed until September 22, 1994. Ultimately, by April 16, 1995, restitution had been paid, the notice of violation of probation was withdrawn, and Respondent's probation was "terminated successfully." At no time did Respondent inform the Department in writing of having pled guilty to the aforesaid crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating the foregoing provisions of law and that, for such violation, the final order suspend Respondent's license for a period of 12 months. DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 May, 1999.
Findings Of Fact On September 8, 1987, the Department of Insurance received a letter dated September 1, 1987, from Joseph F. Kinman, Jr., which stated: Another insurance agent (Daniel Bruce Caughey) from Pensacola, Florida and his incorporated agency (Caughey Insurance Agency, Inc.) are refusing to forward premium payments on to Jordan Roberts & Company, Inc. despite a final judgment for such amounts here in Hillsborough County Circuit Court. Enclosed is a copy of the Final Judgment entered August 13, 1987, as well as a copy of the Complaint. We represent Jordan Roberts & Company, as well as Poe & Associates, Inc. here in Tampa, Florida. In approximately August of 1982, Daniel Bruce Caughey and Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts & Company, Inc. wherein Mr. Caughey and the Agency were to collect premiums on behalf of Jordan Roberts & Company, Inc. and in turn, Mr. Caughey and the Agency were to receive commissions. Mr. Caughey signed an Individual Guarantee Agreement on October 21, 1983, guaranteeing that Brokerage Agreement with Caughey Insurance Agency, Inc. Mr. Caughey and the Agency failed to forward the insurance premiums collected on behalf of Jordan Roberts & Company, Inc. despite repeated demands and inquiries. Finally, a lawsuit was filed against Mr. Caughey and the Agency in the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, in and for Hillsborough County in December of 1986. Final judgment for Jordan Roberts & Company, Inc. against Mr. Caughey and the Agency was entered on August 13, 1987, for an amount of $6,595.94. Mr. Caughey and his Agency have unlawfully withheld monies belonging to an insurer, Jordan Roberts & Company, Inc. and, accordingly, appear to be in violation of Florida Statutes 626 et seq. Jordan Roberts & Company, Inc. has a judgment for unpaid insurance premiums against Mr. Caughey and the Agency, however, Mr. Caughey and the Agency refuse or fail to pay over to Jordan Roberts & Company, Inc. premium funds rightfully belonging to Jordan Roberts & Company, Inc. Accordingly, we would respectfully request that your office conduct an investigation of Mr. Caughey and the Caughey Insurance Agency, Inc. Enclosed with this letter were copies of the complaint and final judgment in the circuit court case, Case No. 86-21454. As found in the main administrative case, Case No. 89-2651: In Count 1, JORO's complaint [in Case No. 86-21454] 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 C. 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. The complaint does not allege and the judgment does not recite that respondent personally failed to remit premiums but says he is responsible as an officer of the agency. Without any further investigation, as far as the record shows, the Department of Insurance filed a complaint amended on April 24, 1989, to allege, inter alia, that "[o]n or about August 19, 1982 Caughey Insurance Agency, Inc. entered into a brokerage agreement with Jordan Roberts and Company, Inc. . . . requir[ing] Caughey Insurance Agency, Inc. to remit premiums, unearned commissions and additional premiums to Jordan Roberts and Company, Inc."; and that respondent "personally guaranteed the [agency's] obligation under this agreement in" writing, but "failed to remit five thousand five dollars and forty-four cents due under th[e] agreement" for which sum Jordan Roberts and Company, Inc. obtained judgment. After a formal administrative hearing, a recommended order was entered on April 2, 1990, recommending dismissal of the administrative complaint, because "ambiguities in the court papers do not clearly and convincingly rule out the possibility that the court's judgment rests on the dishonored promissory note . . . [rather than] a breach of respondent's [here petitioner's] fiduciary responsibilities." In its final order, the Department dismissed the administrative complaint; Daniel Bruce Caughey was the prevailing party in that case. The parties have stipulated that "Daniel B. Caughey qualifies as a small business party as defined in Section 57.111(3)(d), Florida Statutes." The parties also stipulated that the "total value of the reasonable attorney's fees and costs at issue is $2,830."
The Issue The issue presented is whether Respondent is guilty of the allegations in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On October 27, 2005, Respondent was charged in the Circuit Court of Escambia County, Florida, in a two-count criminal information in Case No. 2005 CF 005245. The first count alleged that he had misappropriated insurance funds of more than $300 but less than $20,000, which insurance funds he had received in his capacity as an insurance agent and while acting as an insurance agent under his license. The second count charged him with uttering a forged instrument, to-wit: a declaration page. On November 21, 2006, a jury found Respondent guilty as charged on both counts. On May 10, 2006, Respondent was again charged in the Circuit Court of Escambia County, Florida, in a one-count information in Case No. 2006 CF 002108. That information alleged that he had misappropriated insurance funds of more than $300 but less than $20,000, which insurance funds he had received in his capacity as an insurance agent and while acting as an insurance agent under his license. Respondent entered a plea of nolo contendere in that case. On January 3, 2007, an Order Withholding Adjudication of Guilt and Placing Defendant on Probation was entered in the Circuit Court of Escambia County, Florida, as to all three felonies. That Order further placed Respondent on probation for a period of five years as to each count, to run concurrently. That Order also prohibited Respondent from working as an insurance agent during his term of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Amended Administrative Complaint and revoking Respondent's insurance licenses. DONE AND ENTERED this 3rd day of May, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 3rd day of May, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level II Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level II Tallahassee, Florida 32399-0307 David J. Busch, Esquire Department of Financial Services Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 David K. Gemmell 6584 Lakeshore Drive Milton, Florida 32570 David K. Gemmell A All American Insurance Agency of Pensacola, Inc. 3960 West Navy Boulevard, Suite 21 Pensacola, Florida 32507-1268
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 Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following: Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet. Date Name of Court Address of Court Nature of Charge and Outcome Respondent answered no to this question. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure and eligibility for licensure for three months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2 & 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 5. 7 & 8 Addressed in paragraph 6. 9 & 10. Addressed in paragraphs 7 and 8. 11. Addressed in paragraph 9. 12-14. Rejected as not relevant. COPIES FURNISHED: S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building Tallahassee, Florida 32399-0300 Thomas L. Neilson, Esquire 105 West Fifth Avenue Tallahassee, Florida 32303 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensee on the basis of alleged violations set forth in a one-count Administrative Complaint. It is alleged that the Respondent has violated numerous specified provisions of Chapters 626 and 631, Florida Statutes, by failing to satisfy a judgment entered against him in favor of the Department in its capacity as receiver for an insurance company.
Findings Of Fact At all times material to this case, the Respondent, Steven Peter Alicino, has been licensed to engage in the insurance business in the State of Florida. On or about December 21, 1993, a Consent Order was entered by the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, appointing the Florida Department of Insurance as Receiver for General Insurance Company. On or about August 12, 1996, a Final Judgment was entered by the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, in the amount of $2,377.40 in favor of the Department of Insurance as Receiver for General Insurance Company, and against Stephen Peter Alicino and Budget Insurance, jointly and severally. The judgment was for unearned insurance commissions retained by the Respondent and owed to General Insurance Company. On or about May 12, 1997, the Department of Insurance sent a certified letter to the Respondent demanding payment of the judgment described above. The Respondent received the letter on or about May 15, 1997. The judgment remains outstanding and unpaid.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued revoking the Respondent's license. DONE AND ENTERED this 22nd day of December, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. 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 22nd day of December, 1998. COPIES FURNISHED: Patrick Creehan, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Stephen Peter Alicino 634 Castilla Lane Boynton Beach, Florida 33435 Honorable Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
