Findings Of Fact At present, and at all times relevant, Michael Mason is, and has been president of International Assurance Underwriters, Inc. (IAU), 2600 Maitland Center Parkway, Maitland, Florida. Respondent Mason was licensed as an insurance agent in the State of Florida in 1978 and continued to be licensed at all times relevant to this proceeding. He is currently eligible for licensure as a surplus lines insurance agent and general lines insurance agent. Prior to its emergency temporary suspension in this proceeding, Mason's license has not been subject to discipline. IAU was incorporated on or about March 11, 1991. Its directors were Michael Mason, John Erb and Robert Campbell. Shortly thereafter, a Limited Binding Authority Agreement was made between Assicurazioni Generali, S.P.A. (Generali), an international insurance company with a branch in London, and Leslie & Godwin Special Risks Ltd., London, (Leslie & Godwin) authorizing Leslie & Godwin to bind insurances, issue certificates of insurance, and settle claims on behalf of Generali. M.C. Rutty, Citadel Insurance Services, Ltd., London (Citadel), was designated as intermediary. Article II of the agreement provides, in pertinent part,"... the binding of insurances hereunder shall be the responsibility of one of the persons named in Section B.2 herein...." (Petitioner's Exhibit #16) Section B.2 provides, in pertinent part: 2. Persons authorized to use this Limited Binding Authority It is a condition of this Agreement that all insurances submitted hereunder must be first accepted and approved by the following persons: Michael T. Mason John K. Erb [names handwritten and initialled by Barry West, Director of Leslie & Godwin, and Maurice Rutty] (Petitioner's exhibit #16) The agreement provided for Generali to insure hospitality businesses (hotels, motels, restaurants, bars, taverns and the like) in the United States, for property limits up to $1,000,000 per location, general liability limits up to $1,000,000 and liquor legal liability up to $1,000,000. Under the arrangement, IAU, as approved producing agent, obtained requests for insurance from its subagents and other brokers or companies. Requests were forwarded to Generali, through Citadel and Leslie & Godwin. Generali was the ultimate authority to approve the risk, but Leslie & Godwin and IAU had some limited authority to bind the company on a temporary basis. Each month a bordereau, or list, was to be submitted by IAU through Citadel and Leslie & Godwin showing what policies were written that month. Premiums were due thirty (30) to forty-five (45) days from the end of the month. IAU immediately began providing insurance business for Generali, primarily involving insureds in Florida, and primarily through three Florida insurance companies: Hull & Company, Hummel Co., and Southeast Insurers, Inc. Except for delays in getting copies of policies in some cases, representatives from these companies noted nothing out of the ordinary in their dealings with IAU or Michael Mason. Claims were made and paid; premiums were paid by the companies to IAU. Sometime around the end of October or early November 1991, the companies learned that a cease and desist order had been entered by the Florida Department of Insurance against IAU. Maurice Rutty and attorneys representing Leslie & Godwin and Citadel met with the companies and obtained lists of policies obtained for them by IAU. At the time that the cease and desist order was entered, the companies had on hand premium funds due to be paid to IAU for Generali policies. Those funds have not been paid and allegedly remain in the companies' accounts. Notwithstanding the risk limits in the Limited Binding Authority Agreement, a substantial number of policies were written by IAU for more than $1,000,000. Ocean Properties was an account involving multiple properties, mostly hotels, with an aggregate risk of $300 to $400 million. A single building in the Bahamas was insured with $45 million property coverage. Maurice Rutty claims that Generali never approved the coverage beyond the $1 million limit, but instead obtained excess coverage beyond the limit after Generali learned of IAU's actions. Rutty admits that Generali routinely approved limits beyond $1 million, but only to $1.2 or $1.5 million. Michael Mason claims that he properly forwarded the paperwork to Citadel, that he never dealt directly with Generali, but that the policies were approved. In June 1991, Generali informed Citadel that it would no longer write policies in Florida as it was concerned about windstorm liability. This change was conveyed to Michael Mason by telephone by Maurice Rutty and by facsimile transmission from Eve Russell, Rutty's partner. In a telephone call with Rutty, Mason argued that the limitation would cripple IAU as most of its work was in Florida. Mason also provided a list of Florida policies showing what he believed was an acceptable ratio of coastal to inland properties. Mason continued to approve policies for Generali on Florida properties. Mason believed that he and Generali, through communication with Citadel, had gotten around the problem of windstorm hazards. The Limited Binding Authority Agreement includes a section styled "underwriting guidelines". One such guideline is that "...a wind exclusion or deductible may apply to risks located within one mile from the coastline." (Petitioners exhibit #16) Mason considered that a discretionary guideline and included windstorm deductibles on some risks located by the ocean. The bordereaux, or lists, submitted by Mason to Citadel were reasonably appropriate, according to Maurice Rutty, except for one or two premium discrepancies, which is normal. The premiums submitted to Citadel for Generali's policies from IAU and other producers were net premiums, after the commissions were deducted. At some point Mason learned that someone in his office had bound risks that were not originally submitted on his list. A supplemental list was filed for those six policies and the premiums were submitted. After Maurice Rutty learned that the bank account set up by Citadel in the United States for receipt of premiums was frozen by the Florida Department of Insurance, he traveled to Florida to meet with the various companies who were providing business to IAU for Generali. He found what he claimed were approximately 140 policies which were written through IAU but were never approved by Generali. With one exception, eventually all of those policies were covered by Generali. The exception was a large policy for the Catholic Diocese of Nassau, Bahamas, which Generali cancelled after a 3-month notice. The policy was beyond the scope of the hospitality program described in the Limited Binding Authority Agreement. No one from Generali nor Leslie & Godwin testified, and the exact nature of the relationship between those companies and IAU was not clearly established. Michael Mason was not a signatory to the Limited Binding Authority Agreement. Rutty's testimony regarding what was approved or disapproved by Generali was unclear. He insisted that Generali did not approve the coverage beyond $1 million, but excess policies were acquired by Generali for the additional amounts. He conceded that facsimile notices of those policies and the Florida policies written after June 1991 could have been received by Citadel, but he did not explain how the coverage denial by Generali was communicated to Mason or IAU. He insisted that coverage was ineffective prior to approval by Generali or by Barry West, but the language of the Limited Binding Authority Agreement appears to delegate some approval responsibility to Mason and Erb. Evidence on what premiums are still due from IAU is also unclear. The Florida companies providing business to IAU concede that they are holding some premium funds. Mason has over $1 million in bank accounts that are frozen by the Florida Department of Insurance. He argues that these funds are sufficient to pay any premiums that were due from IAU when the emergency agency action was taken the end of October 1991. Counsel for the agency concedes that no audit was done, but he has added the premiums for all the policies written by IAU for Generali that were submitted by Hull & Company, Hummel Company and Southeast Insurers, Inc., and those premiums exceed the funds available in Mason's accounts. This exercise does not prove a misappropriation by Mason. It fails to take into account funds still being held by the three companies and funds which even Maurice Rutty concedes were paid for premiums up to the liability limits of $1 million (see transcript, p. 145, lines 11-12). No Florida insurance consumer testified as to failure to receive requested insurance or the incurrence of financial losses, and evidence by the three company representatives did not establish these alleged violations by Mason. The evidence did establish that a once cordial and informal relationship between Citadel and IAU deteriorated by October 1991. Mason also conceded that some problems existed with staff in his office, but except for the delayed submittal of six policies, the nature of the problems was not defined. No witness explained how those internal problems constituted violations of the Florida Insurance Code.
Recommendation Based on the foregoing, it is hereby, recommended that the Administrative Complaint dated November 18, 1991, be dismissed. RECOMMENDED this 1st day of May, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7548 The following constitute rulings on the findings of fact proposed by Petitioner: Adopted in paragraph 1. Adopted in paragraph 2. Adopted by implication in paragraphs 3 and 5. Adopted in part in paragraph 4, otherwise rejected as unsupported by the evidence. 5.-6. Rejected as contrary to the weight of evidence. Adopted in paragraph 4. Adopted in part in paragraph 4, otherwise rejected as unsupported by the weight of evidence. The actions of the parties, including Generali and Citadel, as well as IAU were not in strict compliance with the Limited Binding Agreement and it is apparent that other agreements, written or oral, existed to govern those actions. 9.-10. Adopted in paragraph 4. 11. Adopted in paragraph 7. 12.-13. Adopted in paragraph 8. Adopted by implication in paragraph 9. Addressed, but not adopted, as unsupported by competent clear evidence. Adopted in paragraph 5. 17. Rejected as contrary to the weight of evidence. 18. Adopted in summary in paragraph 5. 19.-21. Rejected as irrelevant. 22. Adopted in paragraph 9. 23.-24. Rejected as irrelevant (see paragraph 11). COPIES FURNISHED: James A. Bossart, Esquire Dept. of Insurance & Treasurer Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Jason Reynolds, Esquire Box 5428 Daytona Beach, FL 32118 Tom Gallagher State Treasurer & Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Dept. of Insurance & Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Katherine Tyson is now and was at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0312196 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesperson, with a mailing address of 1411 N.W. 40th Street, Miami, Florida 33142. During the period from approximately March 1992 through approximately March 1993, the Respondent and Denis Michel, acting in concert with one another in their own names and/or under the business name of Katherine Karrington & Associates, Inc., operated as, and represented themselves as, real estate brokers and/or mortgage brokers. Operating and representing themselves in this manner, the Respondent and Michel solicited persons to entrust them with funds to be used in connection with proposed real estate and/or mortgage loan transactions, as follows: Name of Person Amount of Funds Entrusted Raymonvil $ 1,828 Eline 3,550 Pierre-Louis 5,500 Roberts 2,600 Blot 2,750 Francois 2,546 $18,774 TOTAL Through and including the date of the filing of the Administrative Complaint, none of the proposed transactions for which the above funds were entrusted has been completed, and none of the funds have been returned despite numerous demands therefor. At all times material hereto, neither the Respondent, nor Denis Michel, nor Katherine Karrington & Associates, Inc. was licensed as a real estate broker or mortgage broker or lender pursuant to Chapters 475 or 494, Florida Statutes, except that the Respondent became licensed as a mortgage broker on or about February 10, 1993, approximately two months after the last of the aforementioned entrustments of funds had occurred. At various times material hereto, the Respondent was registered with the Petitioner as being the employee of licensed real estate brokers Atlas Realty & Investments, Inc., 11626 N.E. 2nd Avenue, Miami, Florida 33161-6104 (hereinafter, "Atlas") or Murray Realties of Hollywood, Inc., 2843 Hollywood Boulevard, Hollywood, Florida 33020-4226 (hereinafter, "Murray"). However, in connection with the proposed transactions referred to hereinabove in paragraph 4, neither the Respondent nor Denis Michel: disclosed the existence of the transactions to Atlas or Murray; represented themselves as acting on behalf of Atlas or Murray; and delivered or paid over any of the entrusted funds to Atlas or Murray.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this matter finding Respondent guilty of violations of Subsections 475.25(1)(b),(d),and (e) and 475.42(1)(a) and (d), Florida Statutes, imposing a $5,000 administrative fine, and revoking Respondent's license. DONE AND ENTERED this 27th day of December, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3362 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1 - Adopted. Paragraph 2 - Adopted. Paragraph 3 - Adopted. Paragraph 4 - Adopted. Paragraph 5 - Adopted. Paragraph 6 - Adopted. Paragraph 7 - Adopted. Paragraph 8 - Adopted. COPIES FURNISHED: Ms. Katherine Tyson 6709 Ficus Drive Miramar, Florida 32023 Theodore R. Gay, Esquire Senior Attorney Department of Business and Professional Regulation 401 Northwest 2nd Avenue Suite N-607 Miami, Florida 33128 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Respondent is, and at all times applicable to these proceedings was, a licensed health and accident insurance agent licensed by National States Insurance Company. In order to become a licensed Florida insurance agent, the Respondent was required to become familiar with the provisions of the Florida Insurance Code and pass an exam given by the Department of Insurance. The Respondent is familiar with the provisions of the Florida Insurance Code applicable to insurance agents. On or about May 4, 1989, Respondent visited the home of Forrest and Viola DePeugh in Englewood, Florida. The DePeughs had sent in a "lead card" to the Respondent's company requesting information on insurance. While visiting the DePeughs, the Respondent asked to see their existing insurance policies. The DePeughs showed the Respondent three insurance policies, all of which were Medicare Supplement policies. The DePeughs had policies from American Sun, AARP, and Old Southern Insurance Company. 5. The Respondent attempted to explain to the DePeughs how their existing coverages would work and how the policy offered by the Respondent's company, National States, was different from the insurance policies the DePeughs had already purchased. Mr. DePeugh had a difficult time understanding the difference in the coverages offered by the various policies. The Respondent tried to explain that the Old Southern policy would pay 100 percent of the Medicare allowable charges, up to the actual amount of the-physician's charges, while the National States policy would pay 200 percent of the Medicare allowable charges, up to the actual amount of the physician charges. While the Respondent was explaining the differences between the policies, Mr. DePeugh was told by the Respondent that the insurance agent who had sold the DePeughs the Old Southern policy, Richard Stetsky, would never have sold them something that did not pay the actual bill. Stetsky had told them that he had been with Old Southern for seven or eight years. When Mrs DePeugh told the Respondent that Stetsky had been with Old Southern for seven or eight years, the Respondent told the DePeughs that the Respondent personally knew that Stetsky had not worked for Old Southern for that length of time because Stetsky had worked with the Respondent at the same agency, Diversified Health Services, only three or four years ago. The Respondent told Mr. DePeugh that if.Stetsky had told them he had worked for Old Southern for seven or eight years, Stetsky was not telling them the truth. Although there was conflicting testimony, the evidence did not prove that the Respondent told the DePeughs that Stetsky was a "thief" or a "crook". During his sales call with the DePeughs, the Respondent showed the DePeughs a copy of the BESTS rating guide, an industry reference which rates the financial performance of insurance companies. The Respondent informed the DePeughs that Old Southern had a BESTS' rating of "C", while the company the Respondent represented, National States, had a BESTS' rating of "A". The Respondent attempted to explain to the DePeughs the difference between an "A" and a "C" rating. The Respondent also told the DePeughs that they could check the ratings of insurance companies at the public library. Mr. DePeugh called the Department of Insurance after the Respondent left, and the Department stated that Old Southern had experienced financial difficulties in the past, but that the company was now in good standing. The evidence did not prove that the Respondent told the DePeughs that Old Southern was "bankrupt" or that Old Southern was a "no good" company. The Respondent did not take an insurance application from the DePeughs. The Respondent did not accept any money from the DePeughs. The Respondent did not tell the DePeughs to cancel any of their existing insurance coverages. The Respondent's sales approach bothered Mrs. DePeugh, and she thought that the Respondent "should have sat down and talked sensibly." The purpose of Mrs. DePeugh's complaint against the Respondent was to make him talk to elderly people in a "more polite fashion" and to "change his attitude to the way he talks to the elderly." If the Respondent had been a "gentleman", Mr. DePeugh believes that he and his wife possibly would have "bought some insurance off of him." Like his wife, the main basis of Mr. DePeugh's complaint against the Respondent was "his attitude". There was no evidence that the Respondent failed to comply with a proper order or rule of the Department of Insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order dismissing the Administrative Complaint against the Respondent, Stephen Todd Daggett, in this case. RECOMMENDED this 25th day of April, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 25th day of April, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5712 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven. Accepted but unnecessary. Rejected as not proven. Accepted but unnecessary. Accepted but subordinate to facts not proven and contrary to those found, and also unnecessary. Respondent's Proposed Findings of Fact. 1.-14. Accepted and incorporated to the extent not subordinate or unnecessary. 15. Irrelevant and unnecessary. COPIES FURNISHED: Nancy S. Isenberg, Esquire Department of Insurance Division of Legal Services Room 412, Larson Building Tallahassee, FL 32399-0300 Thomas W. Stahl, Esquire Newell & Stahl, P. A. 817 North Gadsden Street Tallahassee, FL 32303 Wayne O. Smith, Esquire Wayne O. Smith, P. A. 5420 Central Avenue St. Petersburg, FL 33707 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue The issue in the case is whether Petitioner is entitled to a Resident Independent All-Lines Insurance Adjuster license.
Findings Of Fact On July 24, 1999, Petitioner was involved in a physical altercation in her driveway, defending herself against a female neighbor. Shortly after the altercation, Petitioner was arrested for Aggravated Battery. On January 12, 2000, a Criminal Information was filed against Petitioner charging her with Aggravated Battery Causing Great Bodily Harm. On August 15, 2000, Petitioner pled no-contest to Felony Battery and was placed on two-years' probation. Adjudication of guilt was withheld. Fourteen months later, on October 18, 2001, Petitioner's probation was terminated early without any violations. On March 11, 2002, Petitioner applied for licensure as a Resident Independent All-Lines Insurance Adjuster and provided the prior arrest information in her application. On May 24, 2002, Respondent denied Petitioner's application for licensure on the basis of her single arrest and subsequent plea. On June 18, 2002, Petitioner submitted a timely Election of Proceedings form requesting a formal hearing. Respondent's licensing review committee, composed of the Bureau Chief of Licensing Division, Licensing administrators, the Assistant Division Director of Agent and Agency Services, and a Department attorney, reviewed Petitioner's application and determined that she was unfit and untrustworthy to hold a license. The review committee's decision was based strictly on Petitioner's prior criminal plea and the limited time between her completion of probation and application for licensure. The evidence presented at hearing, however, demonstrated Petitioner's fitness and trustworthiness to hold a license. Petitioner, an African-American, lives in a 50-house subdivision containing approximately three African-American families. On July 24, 1999, Petitioner attempted to enter her driveway but was blocked by a car that was parked in front of her driveway. A Caucasian woman was parked in front of Petitioner's driveway and was reading mail that she had retrieved from the community mailbox located in Petitioner's front yard. Despite having experienced the woman's similar rude behavior 2-weeks prior, Petitioner politely "tooted" her horn to encourage the woman to move her van forward and patiently waited. Shortly thereafter, Petitioner again beeped her horn. In response, the woman glanced at Petitioner, looked away, and refused to move. Thereafter, Petitioner placed her car in park, approached the driver's side of the woman's car, knocked on her window, and said, "I want to go in my driveway." Again, the woman ignored her request and continued to read her mail. Petitioner stated that after further knocking, she opened the woman's door and said, "I don't know you and you don't know me. I want to go into my driveway and I need you to move your van." In response the woman said to Petitioner, "You need to move. I want to close my door." Immediately thereafter, and without warning, the woman pushed Petitioner to the ground, got out of her car and attacked Petitioner. After being repeatedly struck by the woman, Petitioner bit the woman's shoulder in self-defense. Within seconds, the altercation, which Petitioner alleges was racially motivated, ended and the woman drove away. Petitioner ran into her house and relayed the events to her teenage children. Prior to calling 911, Petitioner called her uncle for advice. While on the telephone with her relative, the police arrived at Petitioner's home and she was arrested. Petitioner retained a lawyer to contest the charge. Upon her attorney's advice, Petitioner reluctantly agreed to plead no-contest to the charge, accept two years of probation, and receive a withholding of an adjudication of guilt. Petitioner's probation was terminated after 14 months without incident. Petitioner has never been arrested nor convicted of any crime prior to this incident. Since 1987, Petitioner has been working in the insurance industry in various capacities including claims examiner. She is currently entrusted with large sums of money, successfully works in customer service, and routinely deals with difficult customers in an appropriate and professional manner. Petitioner has been praised by her employers and co-workers and possesses an excellent demeanor. Petitioner has been offered a position as an adjustor trainee with Zurich Insurance Company contingent upon obtaining an adjustor's license. On June 21, 2001, approximately nine months before Petitioner submitted her application, Respondent repealed its law enforcement waiting period rule which outlined the length of time an applicant was required to wait, following a felony plea, in order to qualify for licensure. While Respondent adopted a new law enforcement waiting period rule pursuant to Section 626.207, Florida Statutes, on October 17, 2002, approximately five months after Petitioner submitted her application, Respondent stipulates that the new rule does not apply to Petitioner. In fact, at the time Petitioner submitted her application in March 2002, Respondent stipulates that it operated strictly under Sections 626.611 and 626.621, Florida Statutes. Consequently, Petitioner applied at a time when Respondent admittedly used only the statutes as a basis for denial. Waiting periods were not applied to applications for licensure during March 2002. While Petitioner's Notice of Denial contains a typographical error as to the date on the first page of the letter, the Agent Personal Data Inquiry correctly shows that Petitioner was officially denied on May 24, 2002.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order approving Petitioner's application for licensure as a Resident Independent All-Lines Insurance Adjuster. DONE AND ENTERED this 19th day of March, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Maria N. Neal 5639 Breckenridge Circle Orlando, Florida 32818-1377 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division), for the Florida Real Estate Commission, was the state agency responsible for the licensing of real estate professionals and the regulation of the real estate profession in Florida. Respondent was licensed as a real estate salesperson or broker in Florida. During pertinent portions of 1990, Respondent was licensed both as a real estate broker by the Division, and as a contractor by the Construction Industry Licensing Board of the State of Florida. During that period he handled numerous sales of real property for the United States Veterans Administration and received deposits of funds on those sales which he placed in his brokerage trust account with First Commercial Bank of Manatee County. At that time, the bank had a policy on availability of funds of seven business days for out-of- town checks and three business days for local checks. In January 1990, Respondent wrote five checks from his trust account, each in excess of $1,000.00. Three of these were to the VA for sales deposits, and two were to others. All five checks were dishonored for insufficient funds. Thereafter, on August 24, 1990, the Division filed an Administrative Complaint against the Respondent alleging the utterance of dishonored checks as misconduct. Respondent, at an informal hearing, admitted the utterance of the dishonored checks, and as a result, the Florida Real Estate Commission revoked his broker's license on October 16, 1990. Respondent's subsequent appeal of that action to the Second District Court of Appeal resulted in a per curiam denial of his petition for review. Sometime later, in 1991, Respondent appealed to the Commission for reinstatement. At a subsequent hearing before the Commission, an exculpatory letter of explanation from Respondent's accountant resulted in the Commission allowing Respondent to sit for the salesman's examination, as a result of which he was subsequently licensed as a salesman. Respondent was thereafter again licensed as a broker on December 6, 1993. In the interim, however, on June 4, 1992, Respondent's contractor's license was disciplined by the Construction Industry Licensing Board for misconduct involving his failure to properly supervise a construction project and allowing an unlicensed individual to do the work on a project for which he had pulled the permit. An informal hearing was held by the Board as a result of which it imposed an administrative fine of $2,000.00, and to assure the payment thereof, provided for suspension of Respondent's license if the fine was not paid within thirty days. Respondent admits he did not pay the fine. He contends he called the Board office to inquire what would happen were he not to pay the fine and was advised his license would be suspended. Since Respondent intended to cease working as a contractor anyway, he elected not to pay the fine and sent his license in to the Board. Respondent's contractor's license was suspended on July 22, 1992, though he claims he did not receive a copy of either the Board's Final Order or the notice of the suspension going into effect. Respondent had an obligation to pay the fine imposed as punishment for past misconduct. Voluntary relinquishment of his license, which he thought he could do without effect on him since he was getting out of the construction business, did not excuse his non-payment of the fine. On October 21, 1993, after Respondent's salesman's license had been reinstated, he applied for licensure as a broker, In his answer to the first part of question 13 on the application form, Respondent indicated he had had a license suspended. He noted thereon the prior case against his license by the Commission which dealt with the dishonored checks. He did not, however, list the action taken against his contractor's license. He listed the prior real estate case, he contends, upon the advice of someone in the Division office. He did not, at the time of his call to the Division indicate or inquire about the action taken by the Board on his contractor's license. He claims he did not list that action on the application form because the action taken by the Board was not based on fraud or dishonesty but merely a failure to supervise, and because he did not know his license had been suspended. He thought that voluntarily relinquishing his license ended the situation. Respondent claims he did not intend to conceal any misconduct or adverse action as he could not do so. It was a matter of public record, and he believed the information available to one regulatory board was available to all others that were under the Department. At some point thereafter, not further established, a complaint was filed with the Commission which resulted in the matter being referred to Mr. Pence for investigation. Mr. Pence assembled the documents relating to the allegation of concealment and sent a written notice of his inquiry to the Respondent. Upon receipt of that notice, Respondent telephoned Mr. Pence to discuss the matter. During the ensuing conversation, Pence asked Respondent if he was aware of his suspension by the Construction Board and claims Respondent indicated he was. Respondent allegedly indicated he was under the impression he had been fined by the Board and that the suspension was only to insure the fine was paid. Respondent further indicated that because of the depressed economy and because he was not much interested in keeping his contractor's license he had let it go. In evaluating the evidence presented, it must be noted that the interview between Pence and the Respondent took place about a year ago. Pence's investigative notes are no longer available and he testified from memory. It was evident that much of Mr. Pence's testimony was a reconstruction of how Mr. Pence, in retrospect, felt he would have handled the interview and what he feels sure he would have asked. Taken together, the evidence of record establishes that Respondent was disciplined by the Real Estate Commission for dishonored checks and his license revoked. Though, on the basis of his accountant's exculpatory letter, Respondent was allowed to be re-examined for a salesman's license, that evidence did not completely exonerate the Respondent. This is shown by the fact that the revocation of his broker's license was not reversed. He was merely allowed to reapply for licensure as a salesman. In addition, the accountant's letter does not explain or justify all the bad checks. In regard to the Construction Board's discipline, the evidence shows that Respondent pulled a permit and then allowed a non-licensed individual to do most of the work without proper supervision. Respondent contends that complaint was filed by his friend, the owner of the property, after the project in question was determined to be far more extensive than had been anticipated. The complaint, Respondent asserts, was not made because of any dissatisfaction arising out of his performance, but merely to preserve the owner's interest as to a possible insurance claim. That argument is not persuasive. The fact is that Respondent was disciplined because he had committed an act which authorized the imposition of discipline. His approach to the situation was cavalier, and that approach or attitude continues to raise a substantial question as to his fitness to have entrusted to him the money, property, transactions and rights of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Florida Real Estate Commission enter a Final Order finding Respondent, Warren Up. Box, guilty of Misrepresentation and concealment in his application for a license as a real estate broker in Florida, and of having been twice guilty of misconduct which warrants suspension, and revoking his license as a real estate broker in this state. RECOMMENDED this 9th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional regulation Division of real Estate Post Office Box 1900 400 West Robinson Street, N-308 Orlando, Florida 32802-1900 Terrence Matthews, Esquire 5190 26th Street West Bradenton, Florida 34207 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802-1900
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what punishment should he receive?
Findings Of Fact Based on the record evidence the Hearing Officer makes the following Findings of Fact: Respondent is now, and has been for approximately the past 20 years, licensed by Petitioner as a general lines insurance agent. On July 3, 1986, Petitioner received a complaint concerning Respondent from Elsa Garcia. Garcia reported that she had purchased automobile insurance through Dixie Insurance Brokers and had been given a temporary insurance binder bearing the signature of a "Paul J. Lovelace" reflecting that her coverage was to be effective March 11, 1985. According to Garcia, however, she had subsequently discovered, after having been involved in an automobile accident on March 23, 1985, that her insurance coverage had not taken effect until after the accident. Garcia's complaint was assigned to one of Petitioner's employees, Burton Powell, to review and investigate. As part of his investigation, Powell contacted Alan D. Kruger, Garcia's attorney. Kruger supplied Powell with Garcia's affidavit and other pertinent documents, including a copy of Garcia's automobile insurance application and the temporary insurance binder she had been given by Dixie Insurance Brokers. The application reflects that Garcia was seeking coverage for the period from April 2, 1985, to October 2, 1985. The binder, on the other hand, indicates that it was to be effective for one month commencing, not April 2, 1985, but March 11, 1985. Someone other than Respondent signed his name to both the application and the binder. 1/ On various occasions prior to December 18, 1987, Respondent was the general lines insurance agent of record for Dixie Insurance Brokers. 2/ On these occasions he never personally signed any insurance applications, nor did he otherwise play any role in the operation and control of the agency. By his own admission, he simply allowed the agency to use his license, without any restrictions imposed by him, in exchange for monetary consideration. In so doing, he willfully engaged in a scheme designed to circumvent the licensing requirements of the Florida Insurance Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order (1) dismissing Count I of the administrative complaint; (2) finding Respondent guilty of Count II of the administrative complaint; and (3) revoking Respondent's general lines insurance agent license for his having engaged in the conduct specified in Count II of the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of November, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1989.
The Issue Should the Department of Financial Services, f/k/a Department of Insurance (Petitioner) impose discipline on the Non-resident All Lines Independent Adjuster License (75-20) held by Kathylean Ashburn-Riley (Respondent)?
Findings Of Fact Respondent holds license EO24890 (75-20). The license was issued on April 26, 2002. Chapter 626, Florida Statutes, creates jurisdiction for the Petitioner to issue the license and regulate Respondent in its use. On March 26, 2002, Respondent had made application for the license by executing a written application for Non-resident All Lines Independent Adjuster license. One of the questions to be answered in the application was the question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Respondent checked the box adjacent to the question indicating "no" as the answer. Above the signature Respondent placed on the application language which states in pertinent part: I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief . . . * * * Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his/her official duty shall be guilty of a misdemeanor of the second degree. Under penalties of perjury I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that the misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license. Petitioner relied upon the information in the application. In particular, Petitioner relied upon the answer to the question concerning Respondent's criminal record as quoted and the oath accompanying Respondent's signature at the end of the application. Based upon that reliance the license was issued. Contrary to the representations in the application in response to the subject question concerning Respondent's criminal history, Respondent has a criminal history. In the State of New Jersey v. Kathylean Williams a/k/a Kathylean Ashurn, Defendant, before the Superior Court of New Jersey, Mercer County, Law Division-Criminal, File No. 82-3660, Indictment Number 661-5-83, Respondent was charged with theft by deception. The indictment stated: The Grand Jurors of the State of New Jersey for the County of Mercer, upon their oaths present that KATHYLEAN WILLIAMS AKA KATHYLEAN ASHBURN on divers dates between March, 1980, through April, 1981, in the City of Trenton in the County aforesaid, and within the jurisdiction of this Court, did purposely obtain the property of the Mercer County Welfare Board, to wit: United States Currency valued at over $500.00, by deception, contrary to the provisions of N.J.S. 2C:20-4, and against the peace of the State, the Government and dignity of the same. On September 17, 1984, in response to the Indictment Number 661-53-83 in the Superior Court of New Jersey, Mercer County, Respondent retracted her plea of not guilty and entered a plea of guilty to theft by deception. On November 1, 1984, it was Ordered and Adjudged that Respondent be sentenced to third degree probation for a period of five years, on condition that restitution of $3,777.10, less any wage execution payments already made at the rate of $80.00 per month as set forth in the Judgment Lien, be paid. A fine of $150.00 was imposed payable at $20.00 per month. On March 19, 1989, the probation in the case was terminated. The probation was terminated early following restitution made in full. The subject question on the application for Non- resident All Lines Independent Adjuster license, which Respondent answered inappropriately concerning her criminal history, was not ambiguous. As the question contemplates, Respondent was charged and convicted of a crime in the State of New Jersey. A Judgment of Conviction (Sentence) was entered. It is inconceivable that Respondent did not understand the question and appreciate that the answer being given to the question in the application was untruthful. In addition the Respondent gave an oath by signing the application according to the instructions for the oath and by her signature acknowledged the consequences of her choice to provide the wrong answer about her criminal history as constituting a violation of the Florida Insurance Code. The fact that Respondent's name changed from the time in which she was involved in the criminal case in New Jersey and made application for the insurance license in Florida is not significant. In both instances the date of birth and social security number were the same which confirmed the identity to be the same.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered revoking the Non-resident All Lines Independent Adjuster license held by Respondent. DONE AND ENTERED this 30th day of May 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 May, 2003. COPIES FURNISHED: Kathylean Ashburn-Riley 6948 Tom Woody Road Snow Camp, North Carolina 27349 Ladasiah Jackson, Esquire Department of Financial Services Legal 4300 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against her and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Facts Relating to All Counts Respondent has held a Florida (2-20) general lines (property and casualty) insurance agent license since March 4, 2000. She had been licensed as a (4-40) customer representative in Florida for approximately one year before obtaining her 2-20 license. At no time as a licensee has she had any disciplinary action taken against her. At all times material to the instant case, Respondent was employed by A Maples Insurance Agency, Inc., in Pompano Beach, Florida (Agency). Respondent was one of four individuals involved in the operation of the Agency. The other three individuals were Respondent's sister, Mary Terrell (who had an ownership interest in the Agency); Respondent's brother, Gus Jones, Jr. (who was also a co-owner of the Agency), and Claudia Smith, a 25-year Agency employee. As Respondent was aware, neither Ms. Terrell, Mr. Jones, nor Ms. Smith possessed any Florida insurance license. At one time, prior to Respondent's coming to work for the Agency, Mr. Jones had been licensed in Florida as a 2-20 insurance agent, but his license was taken away by the Department's predecessor, the Department of Insurance, in 2002, and it has not been reinstated. The Department of Insurance's Final Order suspending Mr. Jones' license read, in pertinent part, as follows: Pursuant to Section 626.641, Florida Statutes, the Respondent shall not engage in or attempt to profess to engage in any transaction or business for which a license or appointment is required under the Insurance Code or directly or indirectly own, control, or be employed in any manner by any insurance agent or agency or adjuster or adjusting firm, during the period of suspension. Further, pursuant to Section 626.641, Florida Statutes, the licenses, appointment, or eligibility, which has been suspended shall not be reinstated except upon request for such reinstatement; but the Department shall not grant such reinstatement if it finds that the circumstance or circumstances for which the license, appointment or eligibility was suspended still exist or are likely to recur. Respondent knew, when she began working at the Agency, that Mr. Jones' 2-20 license had been taken away and not been reinstated. It was Mr. Jones' being stripped of his license that prompted the Agency to hire Respondent. The Agency needed a licensed agent to replace Mr. Jones so that there would be someone at the Agency able to generate commission revenues. Upon being hired, Respondent filled this role as the Agency's lone licensed producing agent. Respondent's employment at the Agency was her only source of income. She was paid on a commission-only basis, receiving her commission payments in cash from Mr. Jones. The business hours of the Agency were 9:00 a.m. to 5:00 p.m. Monday through Thursday and 9:00 a.m. to 6:00 p.m. on Friday. The Agency closed an hour for lunch each day. Although she was the only one working at the Agency who held an insurance license, Respondent ordinarily worked just nine hours a week (three hours on Mondays, three hours on Wednesdays, and three hours on Fridays). Respondent authorized Ms. Terrell, Mr. Jones, and Ms. Smith to sign Respondent's name on insurance-related documents and otherwise act in her stead so that these unlicensed individuals would be able to transact business and produce commissions for the Agency when she was out of the office. Respondent "g[o]t credit for the[se] sale[s]" made by these three unlicensed individuals and was compensated accordingly, notwithstanding her lack of personal involvement in the transactions. Facts Relating to Count I In August 2004, Sarah Harrington went to the Agency to shop for insurance for a manufactured home she was purchasing (through financing provided by Bank of America). At the Agency, Ms. Harrington dealt exclusively with Ms. Smith, whom Ms. Harrington reasonably believed was an insurance agent. Based on the information Ms. Harrington provided her, Ms. Smith recommended obtaining coverage through Citizens Property Insurance Corporation (Citizens), the state-created entity that services homeowners unable to find insurance in the private market. Ms. Smith told Ms. Harrington what the premiums were for this coverage, and Ms. Harrington wrote a check to the Agency for the total amount ($1,540.00) and gave it to Ms. Smith. Ms. Harrington left the Agency with a two-page insurance binder (with an effective date of August 25, 2004, and an expiration date of August 25, 2005) that Ms. Smith gave her. The binder contained what purported to be Respondent's signature in two different places. The signatures, however, were not Respondent's. They were placed there by Ms. Smith, pursuant to the grant of authority Respondent had previously given her. In September 2005, Ms. Harrington received a letter from her mortgage lender, Bank of America, advising her that her "hazard insurance policy ha[d] potentially lapsed, effective 08/25/2005" and that the bank was "unable to pay the premium for [her] new hazard insurance coverage because [it had] not received a bill from [her] insurance agent/company." Ms. Harrington reacted to this advisement by telephoning the Agency and speaking with Ms. Smith. Ms. Smith told Ms. Harrington that the Agency was a "little behind in processing [the paperwork for the renewal of Ms. Harrington's insurance coverage]" and would be sending Bank of America a bill shortly. Approximately a month later, Ms. Harrington received a second letter from Bank of America. In the letter, the bank informed her that it had still not received anything concerning the renewal of her insurance coverage. Ms. Harrington again telephoned the Agency and spoke with Ms. Smith. Ms. Smith told Ms. Harrington that the Agency "had already billed Bank of America" and that "everything was fine." On October 24, 2005, Hurricane Wilma made landfall in South Florida and "took off two sides of [Ms. Harrington's] home." The home was a total loss. When Ms. Harrington telephoned Citizens to initiate the claim process, she was told that there was no record of her being insured. Ms. Harrington thereafter went to the Agency to inquire about the matter and met with Ms. Smith. Ms. Harrington demanded to see proof of her insurance. Ms. Smith was unable to provide such proof. Ms. Harrington returned to the Agency for a follow-up visit. This time she met with Mr. Jones, as well as Ms. Smith. Mr. Jones gave Ms. Harrington the first two pages of an application for insurance he said he had mailed, on her behalf, to Citizens on October 19, 2005. Mr. Jones told Ms. Harrington that the payment for this insurance "was being processed" and that Ms. Harrington's "house was going be covered" inasmuch as she "had insurance." Upon examining the two pages that Mr. Jones had given her, Ms. Harrington noticed that it contained erroneous information concerning her occupation, her date of birth, and the age of her home. She pointed out these errors to Mr. Jones and Ms. Smith. Ms. Smith subsequently wrote, and signed Respondent's name to, a memorandum to Citizens, dated November 7, 2005, correcting the information that Ms. Harrington had identified as being erroneous. After this follow-up visit to the Agency, Ms. Harrington requested, and later received from Citizens, the entire application package that the Agency had submitted to Citizens on October 19, 2005, on her behalf. There were initials and signatures on the documents in this package that purported to be Ms. Harrington's, but were actually forgeries. These documents also contained signatures purporting to be Respondent's that were placed there by Ms. Terrell, Mr. Jones, and/or Ms. Smith, pursuant to the grant of authority Respondent had previously given them. Ms. Harrington's claim for the destruction of her home was ultimately paid by Citizens, as Mr. Jones and Ms. Smith said it would be. Ms. Harrington received $74,000.00. At no time did Respondent have any dealings or interaction with Ms. Harrington. Facts Relating to Count II Alton Barroso is the owner of Barroso Pools, Inc. (Company). In March of 2005, the Company, through the Agency, obtained insurance from Grenada Insurance Company (Grenada) for three Company vehicles. Ms. Terrell had signed Respondent's name on the application for this insurance, pursuant to the grant of authority Respondent had previously given her. Respondent had no personal involvement in this insurance transaction. After the effective date of the Company's policy with Grenada, a Company vehicle was involved in an accident resulting in damages to the vehicle costing approximately $7,500.00 to repair. The Company submitted a claim requesting that Grenada cover these damages under the Company's insurance policy with Grenada. Grenada refused to pay the claim, advising the Company that the Company vehicle "which was involved in [the] accident . . . was not listed as a covered vehicle under [its] auto policy at the time of the loss." Mr. Barroso, who does not "speak or write English very well," had a friend of his, Monica Barranco, go to the Agency to inquire about the matter. Ms. Barranco made several trips to the Agency. She dealt primarily with Ms. Smith, but met once with Mr. Jones, who gave her a copy of the Company's policy. She had no contact at all with Respondent. Despite Ms. Barranco's efforts, the Company never received any payment for the damages to the Company vehicle that was involved in the accident. Facts Relating to Count III Marvin Mercier is Ms. Smith's brother. He has obtained automobile insurance through the Agency for the past five or six years. In February 2006, Mr. Mercier was informed that the insurance policy he had on his 1990 Ford Aerostar van would not be renewed because of an at-fault accident in which he had been involved. Mr. Mercier thereafter spoke with Ms. Smith, who offered to "get [him] a [new] policy" with another insurer. Mr. Mercier accepted his sister's offer of assistance. Approximately a week later, on or about March 11, 2006, in accordance with Ms. Smith's instructions, Mr. Mercier met with Ms. Smith at the Agency "to sign the application [for the new policy] and to give a down payment." In obtaining this new policy for his van, Mr. Mercier dealt exclusively with Ms. Smith. Respondent had no involvement whatsoever in the transaction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order finding Respondent guilty of the violations alleged in Counts I through III of the Administrative Complaint and suspending her license for a total of 24 months for having committed these violations. DONE AND ENTERED this 7th day of January, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2008.
