The Issue Whether Petitioner should be dismissed from employment by Respondent?
Findings Of Fact Petitioner was an employee of Respondent's from December 8, 1984, until May 31, 1988. Respondent is a water management district created pursuant to Section 373.069, Florida Statutes Respondent provides health insurance to its employees through, what is, in effect, a self-insurance program. An employee who elects to receive single individual coverage under the health insurance program, receives the coverage for free. An employee choosing family coverage pays $59.00 per month to Respondent. Payment is made through payroll deductions. Petitioner participated in the health insurance program. Petitioner elected to receive family coverage for herself, her husband, and her minor child by a prior marriage, and had $59.00 deducted from her paycheck to cover the cost of family coverage. Under the provisions of 42 USCS Sec. 300bb (COBRA), Respondent is required, if certain conditions are met, to offer continuation coverage to beneficiaries of its health insurance program who would have otherwise lost their coverage under the plan. A beneficiary electing to receive continuation coverage is required to pay Respondent a premium amount not exceeding 102 percent of the amount it costs the program to provide coverage for beneficiaries of the plan. Continuation coverage for a single individual would have cost $111.20 after June 1, 1988, and approximately $107.00 prior to June 1, 1988. On March 4, 1987, Respondent prepared a memorandum addressed to all "Employees and Spouses" of Respondent's. The memorandum provided an explanation of the continuation coverage provisions of COBRA. Also, Respondent held a staff meeting to explain the COBRA provisions to employees. However, not all of Respondent's employees received the memorandum, attended the meeting, or were otherwise advised of the COBRA provisions. Petitioner was one of these employees. In July 1987, Petitioners husband suffered a neck injury for which he received medical treatment during 1987. Petitioner's insurance coverage with Respondent paid the bills related to this treatment. After several consultations with neurosurgeons, it was decided that Petitioner's husband should undergo surgery. The surgery was initially scheduled for the week before Thanksgiving, 1987. However, because of a problem with scheduling the operating room, the surgery was rescheduled for December 4, 1988. Sometime in the fall of 1987, Petitioner had filed for divorce. Sometime in November 1987, Petitioner was informed that her divorce was on the judge's desk and would become final shortly. Petitioner wanted her husband's surgery to be covered by her health insurance. Upon receiving notice that the divorce would become final shortly, she became concerned about what would happen if the divorce became final prior to the surgery taking place. Petitioner went to Respondent's personnel office to find out what options there were for her husband to be covered by insurance in the event the surgery took place after the divorce became final. At that time, Ms. Carol Donaldson was in charge of handling employee insurance matters for Respondent. Ms. Donaldson, however, was not in the office when Petitioner came in, and Petitioner spoke with Ms. Jean Osterhout. Ms. Osterhout's position with the Respondent was as a Personnel Service Specialist in employee relations. At the time of her conversation with Petitioner, her duties did not specifically include insurance matters. However, when Ms. Donaldson left Respondent in mid-December, 1987, Ms. Osterhout was one of two people who handled the insurance office until a replacement was hired on February 2, 1988. After explaining her concerns, Petitioner was told by Ms. Osterhout that under the COBRA act her husband could be covered by the insurance program if he paid the premiums. Petitioner asked what the premiums would be, and Ms. Osterhout responded she did not know, that she needed to investigate. Petitioner asked Ms. Osterhout to investigate the price and to send her the proper forms to continue the coverage. Ms. Osterhout agreed to do this and told Petitioner to continue paying the premiums for family coverage until they got all the forms together. In anticipation of her divorce, Petitioner had made arrangements for her son to be covered by his father's (her prior husband's) employer's insurance. In this manner, Petitioner could save $59.00 per month, since insurance coverage for her alone was provided at no charge. On December 16, 1987, Petitioner's divorce became final. About a month after her conversation with Ms. Osterhout, Petitioner asked Ms. Osterhout about the forms. Ms. Osterhout told Petitioner that she had been busy and had not had a chance to get them together, and for Petitioner to continue to pay the family premium. Petitioner continued to have $59.00 deducted from her paycheck until her employment with Respondent ended. The surgery which had been scheduled for December 4, 1987, was also cancelled. Petitioner's husband (now ex- husband) underwent surgery in March 1988. At the time of the operation, Petitioner believed her ex-husband was covered by Respondent's insurance. On March 16, 1988, Petitioner accompanied her ex-husband to the hospital and signed the hospital's Agreement for Treatment, Insurance Assignments, Release of Information, Responsibility for Personal Items and Payment of Charges" as the insured party. Petitioner signed the document where she was told to sign by the hospital. At the time she signed it, the document did not contain the circle around the words "Spouse" and "Guardian." Petitioner signed the document as the "Insured," since she believed that her insurance with Respondent still covered her husband. In April Respondent paid $8,109.35 under its insurance agreement as reimbursement for payment of Petitioner's ex-husband's surgery bills. On April 6, 1988, Ms. Melanie West, Respondent's employee then responsible for handling insurance matters, asked Petitioner to complete a claim form for the surgery. Upon receiving the claim form, Petitioner went to see Ms. West and told her that the surgery was related to an accident that had happened in 1987 and that she had filled out claim form in 1987. Ms. West told Petitioner she needed a new claim form. A new claim form was needed because it was the first claim that had been received in 1988 with respect to Petitioner's ex-husband's accident. Petitioner asked Ms. West for a copy of the claim form she had filled out in 1987 and used this claim form to fill out the new claim form on April 6, 1988, with exactly the same information that she had included in the claim form filed in 1987. In doing so, Petitioner indicated on the claim form that she was married, since that is what the 1987 claim form showed. Petitioner wanted the claim forms to be exact because of concerns that her ex-husband might sue over the accident. In May 1988, Respondent's finance and accounting department notified Ms. West that there may be a problem with the insurance claim for the surgery, since it was possible that Petitioner was no longer married. After confirming with the Putnam County Courthouse that Petitioner had been divorced on December 16, 1987, Ms. West asked Petitioner to come to her office. When Petitioner arrived, Ms. West told her there appeared to be a problem with the claim for the surgery expenses because she had been told that Petitioner was no longer married. Ms. West asked Petitioner when she had been divorced. Petitioner initially responded that she had been divorced in April 1988, but upon being asked for written proof, Petitioner told Ms. West that the divorce had taken place in December 1987. After several meetings took place between Petitioner and different persons in Respondents upper management, a meeting took place between Mr. Dean, Respondent's Executive Director; Mr. Flowers, the General Counsel; Ms. Horton and Mr. Wheeley, Assistant Executive Directors; Mr. Parker, Director of the Office of Employee Relations; and Mr. Elledge, Director of the Department of Resource Management. After reviewing and discussing the facts as they knew them, the group concluded that Ms. Willis had falsified the claim form and had lied to Ms. West. The group decided that disciplinary action was warranted. After discussing a range of possible actions, Mr. Dean decided Petitioner should be given two options. Petitioner could either accept a five-day suspension without pay and agree to reimburse the $8,109.35, or be terminated. After being informed of her options, Petitioner responded that she could not pay the money back. Therefore, she was terminated immediately, effective May 31, 1988. The termination letter states that the basis for dismissal was falsification of records. During the time Petitioner was employed by the Respondent, she was an excellent, hardworking, reliable employee. Her immediate supervisor considered her to be honest. Finally, she was not the type of employee who would try to hide her mistakes. After her divorce became final, Petitioner did not try to hide the fact that she was divorced. She attended Respondent's Christmas party with someone other than her ex-husband, and numerous employees of Respondent's knew she was divorced.
Recommendation Based on the foregoing Findings and of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order reinstating Petitioner to her employment DONE and RECOMMENDED this 3rd day of February, 1989, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 3rd day of January, 1989. APPENDIX CASE NUMBER 88-3535 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph Accepted. RO1. and 29. Accepted. RO2. Accepted. RO4. Accepted. RO7. and 8. (There are 2 paragraphs numbered 4 on page 5). Accepted. RO8. Accepted. RO9 -13. Accepted generally. See RO14. Accepted generally.' See RO15. and 30. Accepted. ROI6. Accepted. RO17. Accepted generally. ROI8 and 19-23. Accepted generally. R024-26. Accepted. R028. Rejected as irrelevant. Respondent's Proposed Findings of Fact Proposed Findings of Fact Number Ruling and RO Paragraph Accepted generally. RO2. Accepted. See Conclusions of Law section of the RO. Accepted. RO1. Subordinate to facts found. See RO3. Accepted generally. RO5. Rejected as not supported by the weight of the evidence. See RO6. Supported by the evidence but unnecessary to the decision rendered. Accepted. RO4 and 17. Accepted. RO7. First sentence and first part of second sentence accepted. End of second sentence, rejected. Petitioner disclosed the problem to Ms. Osterhout. Accepted. RO8 and 9. Accepted. RO10. Accepted generally. RO10. Rejected. See RO11-13, for the facts found on these issues. Accepted. 15 and 18. Accepted generally, but Petitioner did inform the insurance office twice through Ms. Osterhout. Supported by competent evidence but unnecessary to the decision reached. The evidence also shows that Petitioner did not file medical claims on her son's behalf even though she was still paying for the coverage. Rejected as not supported by the evidence. Petitioner believed her ex-husband was still covered. 19-20. Accepted. RO18 and 19. Petitioner believed her ex- husband was covered by her insurance. Accepted. RO21. Accepted. R022. Accepted. R023. As to the third sentence, Petitioner continued to believe he was eligible. Accepted. R024. Accepted. RO25. Supported by competent evidence, but unnecessary to the decision reached. Accepted. RO25. Accepted. R025. Accepted, generally. Petitioner also never hid the fact she was divorced and it was common knowledge to Respondent s employees. 30-31. Subordinate to facts found. See R026. Accepted. RO26. Accepted. RO27. Accepted. R028. Accepted. RO28. Accepted. R028. COPIES FURNISHED: Joe H. Pickens, Esquire 113 North Fourth Street Post Office Box 2128 Palatka, Florida 32078-2128 John W. Williams, Esquire Office of Legal Services St. Johns River Water Management District Palatka, Florida 32078-1429 Henry Dean Executive Director St. Johns River Water Management Post Office Box 1429 Palatka, Florida 32078-1429
The Issue Whether Respondent engaged in conduct proscribed by the Insurance Code as is particularly set forth in the Administrative Complaint filed December 7, 1993.
Findings Of Fact During times material, Respondent, Nelson Speer Benzing, was licensed with Petitioner, Department of Insurance and Treasurer, as a life insurance and as a life and health insurance agent. During times material, Respondent was an employee of U.S. Savings Trust Management (herein USSTM). During times material, Respondent was never appointed with Petitioner to represent Wisconsin National Life Insurance Company (herein Wisconsin). However, Respondent did attend a workshop sponsored by Wisconsin. At some time prior to March 5, 1992, Respondent met with George Cantonis, President of Mega Manufacturing, Inc. (herein Mega) in order to obtain Cantonis' permission to make a sales presentation to Mega's employees. Cantonis granted Respondent permission to make a sales presentation to Mega's employees. On March 5, 1992, Respondent made a sales presentation to Mega's employees. The purpose of said presentation was to enroll the employees of Mega in a "savings plan" offered by USSTM. The presentation lasted approximately 15- 30 minutes. Employees were told that the plan, as presented, incorporated an insurance savings plan which had a "liquid" component as well as a long term savings component. At no time during this sales presentation did Respondent explain to employees of Mega that he was a licensed life insurance agent. During the course of his presentation, Respondent described USSTM's product variously as an "insurance saving plan", as an "investment in insurance companies" and as a "retirement savings plan". At no time during the presentation did Respondent specifically state that he was selling life insurance. At the conclusion of the presentation, Respondent enrolled all interested employees in USSTM's plan. During the enrollment procedure, Respondent told the employees to complete portions of at least three documents which included a form entitled "Employee History", a Wisconsin's life insurance application, and an employee payroll deduction authorization. Cantonis enrolled through the above procedure and signed a blank Wisconsin National Life Insurance application. Subsequent to the group sales presentation, Respondent made a similar presentation to Tina Netherton, Mega's office manager, who was working in the office and answering the telephone. At the conclusion of the presentation to Netherton, she enrolled in the plan and also signed a blank Wisconsin National Life Insurance application pursuant to instructions from Respondent. Both Netherton and Cantonis believed that the "savings plan" consisted of both a short term "liquid cash element and a long term investment". Neither were aware that they had purchased life insurance. Both Netherton and Cantonis had, in their opinion, adequate life insurance at the time of Respondent's sales presentation, and would not have purchased additional life insurance if they had been told (by Respondent) that they were purchasing life insurance. Both Netherton and Cantonis executed beneficiary designations on their belief that such was needed so that disbursements, if any, could be made to their designee in the event of their death. Approximately three weeks after enrollment, Netherton and Cantonis received brochures from USSTM which acknowledged their enrollment and detailed the benefits of the "savings plan". The brochure advised that Netherton and Cantonis had enrolled in an insurance "savings plan" and failed to state that they had purchased life insurance. Cantonis and Netherton attempted to withdraw funds from the liquid portion of the plan and were unable to do so. Four to five months after their enrollment, Cantonis and Netherton received life insurance policies from Wisconsin. Pursuant to the insurance applications, Cantonis and Netherton were issued Wisconsin life insurance policy numbers L00566485 and L00566483, respectively. Cantonis and Netherton maintained their Wisconsin policies in order to realize some gain from their overall loss in dealing with Respondent and USSTM. At the time that Respondent made his presentation to Mega's employees and officials, he had never before made sales presentations in order to enroll employees in plans offered by USSTM. Respondent's general manager, Vincent Radcliff, was the agent of record of Wisconsin. The insurance application and policies issued to Cantonis and Netherton were signed by an agent other than Respondent. Respondent's supervisor, Vincent A. Radcliff, III, was disciplined by Petitioner and Respondent cooperated with the Petitioner in investigating the complaint allegations filed against his supervisor, Radcliff. Respondent was first licensed by Petitioner on November 15, 1989. Respondent has not been the subject of any prior disciplinary actions by Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a Final Order suspending Respondent's life and health insurance licenses for a period of three (3) months. It is further RECOMMENDED that Petitioner order that Respondent engage in continuing education respecting the manner and means of soliciting on behalf of insurance companies, and to the extent that he completes the required courses within an acceptable time frame, that the suspension be suspended pending the outcome of Respondent's satisfactory completion of such continuing education courses. 1/ RECOMMENDED this 1st day of July, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 July, 1994.
The Issue Whether Respondent's licenses as a health insurance agent, a life and health insurance agent, and a life including variable annuity agent should be suspended or revoked based on the allegations set forth in the Department's Administrative Complaint.
Findings Of Fact Respondent Gary L. Koniz (Respondent) is currently licensed by the Department as a health insurance (2-40) agent, a life and health insurance (2-18) agent, and a life including variable annuity (2-14) agent. On August 17, 1988, Respondent plead guilty to operating a vehicle while under the influence of alcohol (DUI), a felony, in the County Court in and for Ulster County, New York, Case No. 88-57. Respondent was sentenced to five years' probation, license revocation, and payment of a fine. On or about September 30, 2000, Respondent submitted an application to the Department for licensure as health agent, a life and health agent, and a life including variable annuity agent, on which he was asked the following two questions: Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere to a crime punishable by imprisonment of one year or more 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 answered each of the aforementioned questions, "no." On the application dated September 30, 2000, Respondent signed and swore to the statement that read: Under penalty of perjury, I declare that I have read the foregoing application for licensure, related information and related attachments, and that the facts as stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Code and may result in the denial of my application and/or the revocation of my insurance license. Respondent testified at hearing. Respondent made a court appearance at which he entered a plea as part of a plea bargain to a misdemeanor. He did not comply with one of the conditions and the matter was called back up before the court. At this second hearing, the court asked how he plead. Respondent indicated he had already plead. The court took this response as a plea to the DUI felony and imposed the aforementioned penalties. Respondent did not knowingly answer the questions on the application for licensure incorrectly.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order finding Respondent Gary L. Koniz guilty of violating Sections 626.611 and 626.621, Florida Statutes, and suspending his licensure as a health insurance agent, a life and health insurance agent, and a life including variable annuity agent for a period of up to 18 months. DONE AND ENTERED this 23rd day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 23rd day of April, 2002. COPIES FURNISHED: Gary L. Koniz 9480 Princeton Square Boulevard, South Apartment 815 Jacksonville, Florida 32256 Matthew A. Nowels, Esquire Department of Insurance 612 Larson Building 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, Lower Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact In an Administrative Complaint containing 48 counts and an Amended Administrative Complaint containing an additional six counts, Respondent in DOAH Case No. 87-3046 was charged with some 43 counts of "sliding" accidental death and automobile club coverages with PIP coverage without client's informed consent; 5 counts alleging the financing of policies for which the insured had paid full coverage by forging the insured's signature on a finance agreement; and counts involving failure to remit premiums to the insurance company on whom the policies were written. At the hearing, no evidence was presented on the "sliding" charges, although Exhibits 5, 6, 7 and 8 contain affidavits of numerous clients who averred they were sold accidental death and automobile club coverage either without their knowledge and consent or told it was compulsory to purchase this coverage with PIP coverage. The investigation which led to the charges preferred against Lindsay in DOAH Case No. 87-3046 centered on four offices of Friendly Insurance agency, all owned by Lindsay. However, the only office for which Lindsay was the authorized agent was the Bartow office. Investigations were conducted at each of these offices, and the agent authorized to write policies at that office was a subject of the investigations. Evidence presented at the hearing in DOAH Case No. 87-3046 was that insurance companies licensed only one agent to write policies on the company at each office, and no one else could approve a policy at the Winter Haven office, for example, but the agent so licensed. Respondent in Case No. 87-3046 was the licensed agent at the Bartow office only. At the original hearing, the only witness who testified regarding Respondent's participation in the operation and control of the office in Haines City was Norma Judd who was office manager there. Her testimony that Respondent was her direct supervisor and was aware of activities that were subject to the Administrative Complaint was somewhat discredited by the fact she was fired from her job by Respondent and by a rebuttal witness' testimony contradicting Judd's testimony that Judd was unemployed by testimony that this witness had purchased an insurance policy the day before written up by Judd who told this witness the auto club (or accidental death) policy was required when PIP was purchased. Exhibits 5, 6, 7 and 8 contain several affidavits of Friendly Insurance Agency employees that Lindsay exercised supervision and control over the Winter Haven, Haines City and Lake Wales offices much more so than did the licensed agents at those offices. Those affidavits would support a conclusion that Lindsay exercised supervision and control over the employees of those offices. A fee of $8600 would constitute a reasonable attorney's fee in this case. Costs to Petitioner were $1867.44. While attempting to show that special circumstances existed existed which would make the award of attorney's fees to Lindsay unjust, the Department called Lindsay to the witness stand to elicit testimony that he was untruthful in his testimony at the original hearing. Upon the advice of his attorney, Lindsay invoked the Fifth Amendment privilege against giving incriminatory evidence against himself.
Findings Of Fact At all times material hereto, Respondent, Pedro Luis Hereu, was licensed and eligible for licensure as a life and health and general lines insurance agent by Petitioner, Department of Insurance. Respondent also served as President and registered agent of P.H. Insurance, Inc. P.H. Insurance, Inc. was an incorporated life, health, and general lines insurance agency engaged in the business of selling life, health and general lines insurance products through Respondent and other agency personnel acting under the supervision and control of Respondent. Respondent was licensed to represent Union Bankers Insurance Company as a health insurance agent. Sometime prior to October 17, 1989, Respondent applied to become a resident agent for U.S. Security Insurance Company. On or around February 21, 1986, Respondent assisted Mr. Pablo Beade in the preparation of an application for health insurance for Mr. Beade and his family through Union Bankers Insurance Company. Mr. Beade is not fluent in English, and the application is written in English. Respondent, however, speaks Spanish which is Mr. Beade's native language, and with Mr. Beade's permission read the application in Spanish to Mr. Beade and completed the form in English in Mr. Beade's presence. The form consists primarily of "yes" and "no" questions. Mr. Beade answered "no" to all but one question regarding medical treatment in the previous five years. Mr. Beade told Respondent that during that time he had visited a Dr. Gualberto Navarro for a regular checkup only. Respondent noted the information on the form. In his testimony, Mr. Beade, however, stated that he informed Respondent that he had been treated for ulcers in addition to his regular checkup with Dr. Navarro. Respondent disagrees. Considering that Respondent was aware that the Union Bankers would verify Mr. Beade's health history prior to issuing the policy, that Respondent supplied the company with Dr. Navarro's telephone number and address and Respondent's demeanor at the hearing, Respondent's testimony is found to be credible. During his visit with Mr. Beade, Respondent explained to Mr. Beade that the application did not assure that his coverage would be approved by the company. Then, after completing the application, reviewing it with Mr. Beade, and witnessing the execution of it by the Beade's, Respondent collected $3,093.99 in premium dollars from Mr. Beade. Although it is Respondent's custom to collect funds in the form of a check payable to the insurer, Mr. Beade preferred to pay him in cash. Respondent accepted the cash and issued a receipt to Mr. Beade for it. Respondent returned to the P.H. Insurance and gave the cash and the application to his secretary for deposit and processing. According to Respondent, his secretary deposited the cash in the agency trust account and forwarded the application and a deposit to Union Bankers. Respondent's agent's contract with Union Bankers and the regular course of business, which Respondent admitted, obligate him to submit all money collected on behalf of Union Bankers to it immediately upon receipt. Union Banker's attempted to obtain more information from Dr. Navarro concerning Mr. Beade's health, and Respondent attempted to contact Dr. Navarro on behalf of Union Bankers. However, Union Bankers did not receive a response from Dr. Navarro and issued its policy, excluding Mr. Beade. Since coverage of Mr. Beade was excluded from the policy, the premium owed by Mr. Beade required adjustment. Respondent, however, had left Miami during the Summer of 1986 and did not return until October, 1986. It was not until then that he became aware of the company's refusal to insure Mr. Beade. On several occasions Respondent tried to telephone Mr. Beade to discuss the premium adjustment and return of a portion of the premium. His attempts were unsuccessful. On January 30, 1987, he wrote Mr. Beade, but the letter was returned. He physically went to the last known address which Respondent had for Mr. Beade, but no one was home. Respondent has not personally been contacted by Mr. Beade since Respondent's return to Miami. Mr. Beade did, however, file suit against Union Bankers and Respondent; however, the relevant evidence did not indicate the allegations or the judgment, if any, in the litigation. Meanwhile the funds remained in the non-interest bearing trust account. In May, 1989, Petitioner filed the instant complaint against Respondent, and on September 14, 1989, Respondent issued a check in the amount of $1,982.56 to Mr. Beade from the trust account. On October 17, 1989, Petitioner issued its letter demonstrating its intent to deny Respondent's application to become a registered agent for U.S. Security Insurance Company. The instant claim represents the first and only complaint filed with Petitioner against Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Insurance enter a final order which dismisses the administrative complaint against Respondent, Pedro Luis Hereu, and approves the subject application. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22 day of March 1990. JANE C. HAYMAN 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 22 day of March 1990. APPENDIX TO THE RECOMMENDED, ORDER IN CASE NO. 89-4931 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted as subordinate to paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 7 are adopted in material part in paragraphs 3. The proposed findings of fact in paragraph 8 are adopted in material part in paragraphs 3. The proposed findings of fact in paragraph 9 are adopted in material part by paragraphs 5 of the Recommended Order. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 9 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 14 are rejected as a conclusion of law. The proposed findings of fact in paragraph 15 are adopted in material part by paragraphs 8-10 of the Recommended Order. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part in paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part in paragraph 2 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part in paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part in paragraph 4 the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part in paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part in paragraph 6. The proposed findings of fact in paragraph 7 are adopted in material part in paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part in paragraph 7. The proposed findings of fact in paragraph 9 are rejected as irrelevant. The proposed findings of fact in paragraph 10 are adopted in material part in paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in material part in paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part in paragraph 8 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part in paragraph 10 of the Recommended Order. COPIES FURNISHED: Christopher Anderson, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Thomas F. Woods, Esquire Alex D. Barker, Esquire GATLIN, WOODS, CARLSON & COWDERY 1709-D Mahan Drive Tallahassee, Florida 32308 Don Dowdell General Counsel The Capitol Plaza Level Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether the Respondent properly denied the Petitioner's application for licensure as a Resident All Lines Insurance Adjuster for a material misstatement on her application?
Findings Of Fact The Petitioner, Krista Rose Navarro, filed an application with the Respondent for licensure as a Resident Independent All Lines Insurance Adjuster (05-20) by letter dated December 30, 2004. This application was filed on line. As part of that application the Petitioner answered, "no," to the question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the law of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? The Respondent conducted a criminal records file check that revealed that the Petitioner had entered a plea to a count of mail fraud in the Federal District Court for the Central District of California in 1986. The records of this proceeding under the seal of the records custodian of the National Archives and Records Administration were introduced as Department's Composite Exhibit 2. Based upon this information, the Respondent determined that (1) the period an applicant would have to wait to be licensed for the offense involved was 15 years, and that this had run; and (2) the Petitioner's failure to disclose the offense resulted in extending the licensure eligibility date until December 30, 2005. Based upon this latter determination, the Respondent denied the Petitioner's application for licensure. The Petitioner testified that the portion of the question that stated, "pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the law" was confusing to her. She took the question to require reporting an offense for which one was imprisoned for a year or more, and that she had not intentionally failed to reveal the offense. In support of this contention, the Petitioner pointed out that she was currently a licensed real estate broker and held this license for ten years, and had revealed the subject offense and plea on the application for that license. She also introduced a letter from her child's school, the Petitioner's Exhibit 2, which indicated that the Petitioner had shared the information about her plea with the principal of the school as part of the vetting of parental chaperones. The Petitioner passed that vetting process. Although the underlying facts of the offense to which the Petitioner entered the plea are not relevant to the matters under consideration, they show the Petitioner engaged in a telephone marketing ploy in which businesses and offices were called and copier products were offered for sale at current prices before an anticipated price increase. Although not stated, an impression was given that the salesperson was a representative of the supplier usually used by the office being called, and the "price hike" was not factual, but a sales gimmick. The "handling charges" and similar fees in these transactions were very high, although the products were delivered to the purchasers. Such practices are specifically prohibited today, but were not specifically proscribed at the time. The Petitioner was cooperative with authorities when arrested, and is now remorseful about her conduct at the time considering this is an embarrassing epiphany in her life; however, she has fully disclosed the facts as indicated above when she perceived it was necessary. The Petitioner has her own real estate brokerage; has never been the subject of disciplinary action by those licensing authorities; and is a long-time resident of her community. She is married, has two children, and takes part volunteering at her children's school, as indicated above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Financial Services issue the Petitioner as a Resident Independent All Lines Insurance Adjuster. DONE AND ENTERED this 2nd day of June, 2005, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN 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 2nd day of June, 2005. COPIES FURNISHED: Krista Rose Navarro 111 Placido Place Panama City Beach, Florida 32413 Dana M. Wiehle, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether, for the reasons alleged in the Administrative Complaint dated February 10, 1984, the Petitioner should revoke the Respondent's license and eligibility for licensure as an insurance agent or impose some lesser penalty authorized by statute.
Findings Of Fact Based on the testimony of the witnesses and the exhibits admitted into evidence, I make the following Findings of Fact: 1/ On June 16, 1982, the Respondent, Shelby Dewey Blackman, executed an Application for Qualification as Nonresident Life Agent, which application he thereafter caused to be filed with the Petitioner, Department of Insurance and Treasurer. In that application Mr. Blackman stated that his residence address and his business address in his state of residence were both "2549 New York Avenue, Pascagoula, Miss. 39567." (Pet. Ex. 1; Tr. 12-13) The Department of Insurance and Treasurer does not issue Nonresident Life Agent licenses to people who are in fact residents of the State of Florida. Such licenses are only issued to people who are nonresidents of this state. Applicants for Resident Life Agent licenses are required to take an examination prior to licensure. Applicants for Nonresident Life Agent licenses are not required to take an examination prior to licensure. The Department would not have issued a Nonresident Life Agent license to Mr. Blackman if the Department had known that Mr. Blackman was a Florida resident. (Tr. 14) As a result of the filing of the application described above, the Department issued to Mr. Blackman a license as a Nonresident Life and Health Agent for the American Sun Life Insurance Company, which was the only company he was authorized to write insurance for in the State of Florida. When Mr. Blackman received his license, the license listed the name of the the only company he was authorized to write insurance for in this state. Licensees who are authorized to represent more than one insurance company in this state receive a separate license for each company they are authorized to represent. Mr. Blackman had only the one license to represent one company. (Pet. Ex. 1 and 2; Tr. 14-18) At all times material to this case, Mr. Blackman was a resident of Santa Rosa County, Florida. Specifically, Mr. Blackman was a resident of Santa Rosa County, Florida, at the time he applied for and was issued a Nonresident Life and Health Agent license and at the time of writing the four insurance applications which are described hereinafter. (Pet. Ex. 3; Tr. 20-21, 53) Continental Bankers Life Insurance Company of the South does not currently hold, and has never held, a Certificate of Authority to write insurance in the State of Florida. In November of 1982 Continental Bankers Life Insurance Company of the South was licensed to write insurance in the State of Alabama and Mr. Blackman was authorized by Continental to write insurance for Continental in the State of Alabama. (Pat. Ex. 8; Tr. 24-25) During November of 1982, Mr. Blackman wrote four applications for health insurance policies to be issued by the Continental Bankers Life Insurance Company of the South. One was an application dated November 2, 1982 from Mr. Thomas J. Barrow. Another was an application dated November 4, 1982, from Mr. Jimmie R. Williams. The last two were applications dated November 12, 1982, from Mr. Henry E. Marshall and Mr. Ercy L. Henderson, respectively. All four of the applications were written and signed in Jay, Florida. No part of the transactions which culminated in the writing of the four applications took place in the State of Alabama. On three of the applications Mr. Blackman wrote that the application was written and signed in Brewton, Alabama, and on one of the applications Mr. Blackman wrote that the application was written and signed in Flomaton, Alabama. The statements that the applications were written and signed in Alabama were false statements that Mr. Blackman knew to be false statements. (Pet. Ex. 4, 5, 6, 7; Tr. 37-38, 42, 49, 53-54) The false statements written on the four applications described above were relied upon by the Continental Bankers Life Insurance Company of the South and were, therefore, material misrepresentations. If Mr. Blackman had truthfully written on the applications that they were written and signed in the State of Florida, Continental would not have issued policies on the basis of those four applications because Continental was not licensed to write insurance in the State of Florida. The MM-6 policy is an insurance policy that Continental markets in Alabama and the false statements on the applications which indicated that the policies were applied for and completed in Alabama induced Continental to issue the policies. (Tr. 25-27, 32, 34-35)
Recommendation For all of the reasons set forth above, and particularly because of Mr. Blackman's demonstrated disregard for the truth, I RECOMMEND that the Department of Insurance and Treasurer enter a Final Order revoking Mr. Blackman's license and eligibility to hold a license. DONE AND ORDERED this 31st day of July, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9575 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1984.
