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 Respondent, Pearlie M. Butler, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on December 29, 2004, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals licensed to conduct insurance business in Florida. Ch. 626, Fla. Stat. (2003). Respondent, Pearlie Mae Butler, is licensed in Florida as a Life Including Variable Annuity Agent (2-14), a Life and Health Agent (2-18), and a Health Agent (2-40). Ms. Butler's license number is D068258. At the times relevant to this matter, the Department has had jurisdiction over Ms. Butler's insurance licenses and appointments. Ms. Butler's Failure to Remit. At the times relevant to this matter, Ms. Butler was employed as an agent of Monumental Life Insurance Company (hereinafter referred to as "Monumental"). Ms. Butler, on behalf of Monumental, collected payments for insurance on a monthly basis, often in cash. Pursuant to Monumental's policies and procedures, Ms. Butler was required to give customers a receipt for all premium payments, which she signed in acknowledgement of a payment, and to record the receipt of the payment in Monumental's records. In September 2003 Ms. Butler voluntarily left Monumental. As a consequence, an audit was conducted of Ms. Butler's records. This audit included a comparison of actual insurance premium receipts which Ms. Butler had give to her customers with the insurance premium payments recorded by her in Monumental's records. As a result of the audit, it was found that Ms. Butler had collected a total of $483.21 in premiums she had received from three different customers which she did not report or remit to Monumental. These funds constituted trust funds pursuant to Section 626.561(1), Florida Statutes (2003), and were received in a fiduciary capacity by Ms. Butler. As such they should have been accounted for and paid to Monumental. Ms. Butler was informed by letter of the findings of the audit and was requested to remit the unaccounted-for funds. Ms. Butler had not, as of the date of the final hearing, responded to this request. Monumental, despite not having received the premiums, gave the three customers credit for their payments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Pearlie Mae Butler violated the provision of Chapter 626, Florida Statutes (2003), described, supra, and revoking her licenses. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2005. COPIES FURNISHED: James A. Bossart, Esquire Division of Legal Services Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Pearlie M. Butler Post Office Box 924013 Homestead, Florida 33032 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
