The Issue The issue in this case is whether the Education Practices Commission should deny Petitioner's application for a teaching certificate on the grounds that she lacks good moral character, has committed act(s) for which such a certificate could be revoked, and is guilty of gross immorality or an act of moral turpitude based on a plea of guilty to a felony and a judgment against her in a civil proceeding.
Findings Of Fact Petitioner Shirley McCallum Simmons is academically certified to be an exceptional student education (ESE) teacher and a non-native English speaking language students (ESAU) mathematics teacher. She teaches at Royal Palm Beach High School. Ms. Simmons' April 28, 2003, application for Florida Educator's Certificate Number 910106 (a permanent teaching certificate) was denied. Respondent, as Commissioner of Education and head of the Department of Education (DOE), recommends to the EPC that it deny Ms. Simmons' application for a permanent teaching certificate based on a finding that she lacks good moral character. The Amended Notice of Reasons for the denial of the application is as follows: On or about January 6 or 7, 1998, Applicant engaged in a conspiracy with others to obtain a passport through the use of false and fictitious statements. As part of this conspiracy, Applicant knowingly and unlawfully provided a false affidavit to the United States Department of State concerning her relationship to and the identity of an applicant for a passport. Applicant was indicted and charged with: Count 1, Conspiracy to Commit Passport Fraud; Count 2 (Count 5 of Indictment), Making False Statement in an Application for a Passport; and Count 3 (Count 6 of Indictment), False Statements. On or about January 28, 1998, Applicant pled guilty to Count 1. The other counts were dismissed. The court adjudicated Applicant guilty. Among other sanctions, the court placed Applicant on probation for 2 years and ordered her to pay a fine of $100.00. On or about April 1, 1997, the Applicant married Raymond Douchard, an individual she had only known briefly. Shortly thereafter, the Applicant applied for four (4) insurance policies on her husband's life totaling One Million Two Hundred Thousand Dollars ($1,200,000.00) in coverage. The policies became effective April 9, 1997, April 11, 1997, June 28, 1997 and July 1, 1997. On or about July 6, 1997, Applicant's husband was murdered as a result of a gun shot wound to his head. His body was discovered in a trunk of a vehicle parked behind a business entity in Broward County named Flanagan Lounge. Applicant immediately filed death claims with the insurance companies to collect on the policies. After a refusal of coverage, Applicant filed a federal lawsuit against one of the carriers, Shirley M. (Douchard) Simmons v. Valley Forge Life Insurance Co., Case Number 00-8514-CIV- HURLEY. Following a trial on the matter, a jury rendered its verdict on January 25, 2002 determining that the policy was properly rescinded on several basis, including that the Applicant had a murderous intent and the death of her husband was caused by the criminal acts of Applicant. Ms. Simmons has a bachelor's degree in social work from Florida State University, and a master's degree in educational leadership from Lynn University. She also received a certification in law enforcement from Palm Beach Community College, and a bachelor's degree in cosmetology from Dudley University in North Carolina. Ms. Simmons enrolled in ROTC while in college, then was commissioned as an army officer. She served in Germany until approximately 1986 or 1987. When Ms. Simmons returned to the United States and left military service, she was employed with the Palm Beach County Sheriff's Department for five to six years. To avoid working night shifts after her son was born in 1989, Ms. Simmons decided to go into business for herself. Ms. Simmons opened a salon called The Beauty Spa in 1992. At about the same time she began volunteering in public schools, received her academic certification to teach, and began work with the Palm Beach County School District. Ms. Simmons had been married and divorced twice when she met Raymond Douchard in 1995, whose name she believed was Robert Douchard. On April 1, 1997, Ms. Simmons and Mr. Douchard were married, but they never lived together. Ms. Simmons said they never lived together because he lied to her, including about his real name before they got married. He would also, according to Ms. Simmons, disappear for three or four days, telling her he was with a friend or cousin in Boca Raton. She felt there was something wrong or suspicious. Mr. Douchard was an automobile mechanic. Ms. Simmons testified that he told her that he was involved in stealing vehicles and sending them to Haiti. In March 1997, before they married, Mr. Douchard obtained three separate life insurance policies, each for $300,000, with Ms. Simmons as the beneficiary. Ms. Simmons was the owner of a fourth policy, also for $300,000.00 naming Mr. Douchard as the insured and Ms. Simmons the beneficiary. Ms. Simmons testified that the policy was intended to put her at ease because she did not trust Mr. Duchard. Although they were not married at the time, Ms. Simmons signed the Midlife application as beneficiary using the name Shirley Douchard. Her claim that it was after her marriage and that someone else back dated the application to "3/27/97" is not credible. Other policies were signed "Shirley Simmons, Fiance." Ms. Simmons said that Mr. Douchard set up appointments on March 27, 1997, with a life insurance agent who came to her salon, and prepared the applications for the policies. Ms. Simmons testified that she knew the policies had a two-year contestable period in the event of a death because she had similar policies on her former husbands. At least one insurance company was paid with a check drawn on the account of The Beauty Spa. On Sunday evening, July 6, 1997, at approximately 10:00 p.m., the body of Raymond Douchard was found in the trunk of a car parked behind a place called "Flanigan's Lounge" in Broward County. He had been shot in the head while in the trunk. The medical examiner estimated that the time of death was between 12:00 a.m. and 6:00 a.m., the morning of July 6, 1997. Homicide detective Glenn Bukata informed Ms. Simmons of Mr. Douchard's death and interviewed her at The Beauty Spa and at her home on the evening of July 8, 1997. She told him that she had last seen Mr. Douchard after she beeped him and he came to The Beauty Spa between 11:00 p.m. and 12:00 a.m. the evening of Saturday, July 5, 1997. After he was with her for approximately 45 minutes, Ms. Simmons said Mr. Douchard received another page on his beeper and left. During the homicide investigation, Ms. Simmons was interviewed at least ten more times, including the longest questioning for 12 to 14 hours that lasted from 12:15 p.m. until 2:15 a.m. Detective Bukata found Ms. Simmons various statements to be evasive and contradictory. Although her stories about who might have been responsible for Mr. Douchard's death changed, Ms. Simmons never admitted that she was guilty or involved. On December 11, 1997, Ms. Simmons was married for a fourth time to Deniche Altime, a Haitian immigrant who was in the United States illegally. Ms. Simmons took Mr. Altime to the passport office in Miami to apply for a passport, where he used her nephew's name and identification. Ms. Simmons initially testified that she only signed the United States Department of State Affidavit Identifying Witness, in support of the passport application claiming to be Mr. Altime's aunt, who had known him for 20 years. At the hearing, she conceded that, in addition to her signature, the handwriting filling out the affidavit also could be hers. Ms. Simmons said she was complicit in the passport misrepresentation because Mr. Altime became violent after they married, always carried a gun, and she was afraid of him. When Mr. Altime returned to the federal office to pick up his passport, he was arrested and subsequently deported. Ms. Simmons was arrested and charged with conspiracy to commit passport fraud. On January 29, 1998, she pled guilty to one count in violation of 18 USC § 371. She was placed on probation for two years, prohibited from possessing a firearm, and assessed a penalty of $100. At the time she entered her guilty plea, court documents indicate that Ms. Simmons was represented by counsel. Other than her self-serving testimony, which is rejected, there is no evidence that Ms. Simmons did not understand her plea of guilty to conspiracy to commit passport fraud or that she claimed, after he was deported, that her crime was based on a fear of Mr. Altime. After Ms. Simmons was released from federal custody, she was arrested by Broward County authorities and charged with first degree murder in the death of Mr. Douchard. She was in jail for about two years with no bond. Having been born in Jamaica, Ms. Simmons was considered at risk for fleeing the country. Ms. Simmons was tried for murder and, at the conclusion of the prosecution's case, the defense motion for judgment of acquittal was granted. After the murder charges were dismissed, Ms. Simmons filed suit against Valley Forge Life Insurance Company, Midland Insurance Company, Jackson National Life Insurance Company, and Primerica Life Insurance Company in 2000, to collect on the policies that named Raymond Douchard as the insured. Primerica settled before trial. On January 25, 2002, a jury verdict was entered against Ms. Simmons based on findings of "Material misrepresentations, fraud in policy application, murderous intent of beneficiary, and disenfranchisement - Florida Slayer Statute." Ms. Simmons filed for bankruptcy to discharge a judgment against her for $13,845 in the civil case and debts that she said accumulated during her two years in jail. There is evidence, however, that her testimony that she had good credit in March and April 1997, when she married Mr. Douchard was not the truth. Lieutenant Jeffrey Jackson worked with Ms. Simmons at the Sheriff's Department for approximately five-to-seven years, beginning in 1989 or 1990. He recalled that she was a good employee, who handled the different inmate population in her assigned housing unit well. Sheila Henry, a principal with the Palm Beach County School District for 27 years, was the principal at Royal Palm Beach High School for the two years (2004-2006) that Ms. Simmons worked there. Ms. Henry described Ms. Simmons as a good employee, who taught ESE classes, with no complaints from students or parents. Ms. Simmons' evaluations support a finding that she is a competent teacher. Ms. Henry was not aware of any civil or criminal proceedings against Ms. Simmons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission deny the application of Shirley Simmons for a permanent educator's certificate. DONE AND ENTERED this 6th day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 6th day of October, 2009. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Thomas Johnson, Esquire Johnson, Haynes & Miller, P.A. 510 Vonderburg Drive, Suite 305 Brandon, Florida 33511
The Issue The issue is whether Respondents are guilty of misconduct in the enrollment of various minors into health maintenance organizations and, if so, what penalty should be imposed.
Findings Of Fact At all relevant times, each Respondent has been licensed in Florida as a life, life and health, and health insurance agent. In March 1998, Respondents were employed by Wellcare HMO, a health maintenance organization, to solicit and procure applications for enrollment in its subsidiary, StayWell HMO. There is little dispute between the parties as to the direct evidentiary facts of the cases. Respondent Larotunda has sold multiline insurance for 16 years. Respondent Law has sold predominantly health insurance for 32 years. Respondent Larotunda has sold insurance in Florida since 1989, and Respondent Law has sold insurance in Florida since 1981. The StayWell coverage is a Medicaid supplement characterized by easy enrollment features. Respondent Larotunda sold this insurance from November 3, 1997, through April 1998. Respondent Law sold this insurance from January 26, 1998, through April 1998. At times selling the StayWell insurance together, Respondents would work low-income housing projects. Most of the time, they would sell the StayWell insurance door-to-door. Sometimes, they would park a Winnebago in the neighborhood, play rap music, provide minor entertainment in the form of a clown, set up a nurse at a table to take blood pressure readings, and give away small gifts, such as frisbees, or hotdogs and sodas. StayWell paid for these promotional expenses. In this manner, Respondents submitted roughly 1000 applications monthly. They earned a salary plus a commission. However, probably ninety percent of the applications that they submitted contained erroneous information, resulting in the rejection of the application. Their employment agreements provide for recoupment of commissions if enrollees drop their coverage in the first three months. To sign up dependents, StayWell required the child's first name, last name, and date of birth. Respondents were not required to check some form of identification cards, which would have been impractical for their market. Frequently, children did not bear the same last names as the parents or guardians. In each of the alleged transactions in these cases, the facts are the same: children were enrolled in the StayWell program without the knowledge of their parents. Sometimes the change in coverage cost the parents substantial sums of money, as they had to pay out-of-pocket for expenses their previous coverage had paid. However, in each case, Respondents deny any knowledge concerning these particular applications, having taken so many applications in relatively short periods of time. Respondents freely concede that the adult enrolling a child may have merely been the child's noncustodial uncle or babysitter, but Respondents would have no way of knowing this. Petitioner has failed to prove by clear and convincing evidence that Respondents were in any way culpable for the improper enrollments that took place in these cases.
Recommendation It is RECOMMENDED that the Department of Insurance enter a final order dismissing the Amended Administrative Complaints against both Respondents. DONE AND ENTERED this 7th day of March, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 March, 2001. COPIES FURNISHED: Honorable Tom Gallagher Department of Insurance State Treasurer/Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 James A. Bossart Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0300 Roy W. Foxall 2222 Second Street Fort Myers, Florida 33901
The Issue The issue for consideration in this case is whether Respondent's license as an all lines insurance adjuster in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times relevant to the issues herein, Petitioner, Department of Insurance, was the state agency in Florida responsible for the licensing of insurance agents and adjusters in this state and the regulation of the insurance profession therein. Respondent was licensed as an all lines insurance adjuster in Florida, and had been for approximately eight to ten years. On May 15, 1997, Respondent's home, located at 6617 North 23rd Street in Tampa, Florida, was damaged by fire, making it temporarily uninhabitable by Respondent and his two sons. As a result, Respondent arranged for his two sons to reside temporarily with a friend, Ms. Wanda McLendan. Though no formal written agreement was entered into between them, Respondent claims he verbally agreed to pay her $45.00 per day for the housing of his two sons. Respondent rented quarters for himself at the AmeriSuites Motel on North 30th Street in Tampa for the night of May 16, 1997, for which he was charged and paid $88.48. Commencing on May 17, 1997, Respondent moved into the DoubleTree Guest Suites Motel near Busch Gardens in Tampa, for which he paid $79.00 per night, plus tax. He remained at that facility until he checked out on June 9, 1997. Over the period he remained there, Respondent paid a total of $2,052.04 for room, taxes, and phone calls. All charges to both facilities were placed on Respondent's American Express card. Respondent submitted these charges to USAA, his insurance company, under that provision of his homeowner's policy which provided coverage for living expenses caused by property loss, up to $18,800 over a total of 12 months. These charges were reimbursed to him. On July 27, 1997, Respondent forwarded to USAA a claim for further additional living expenses which allegedly arose out of the loss of use of the property due to the fire. In the cover letter which constituted the claim, Respondent indicated that on June 9, 1997, he and his family moved into a townhouse located at 5231 Tennis Court Circle in Tampa, which was owned by a friend, Linda Akins. Accompanying the letter was an extract of the pertinent insurance policy and a statement dated June 9, 1997, allegedly signed by both Respondent and Ms. Akins, whereby Respondent agreed to rent the subject property for $220.00 per day, including furniture and utilities. There was to be no deposit or lease. Also accompanying the claim letter were photo copies of four checks drawn on the First Union National Bank of Florida, numbers 1750, 1758, 1759, and 1761, in the amount of $3,080, $3,080, $3,080, and $1,320 respectively, made payable to Ms. Davis, signed by the Respondent, and dated June 22, and July 8, 21, and 26, 1997, all of which indicate they were in payment of rent for the property located at 5231 Tennis Court Circle. On July 30, 1997, Respondent sent another letter to Mr. Price at USAA in which he claimed additional living expenses for his two sons at the residence of a friend, Ms. McLendon, at a rate of $45.00 per day for the period from May 16, 1997, to June 9, 1997. Accompanying that letter was a photocopy of check number 1752, dated June 15, 1997, in the amount of $945, drawn on the same bank as the others, and payable to Wanda McClendon. This check bore the additional notation that it was for lodging for the two boys as alleged. When these two claims were received by USAA, because the checks attached thereto did not appear to have been negotiated, the company initiated an investigation to be conducted by Mr. Green, one of its investigators. Mr. Green reviewed the entire claim file and then interviewed both Respondent and Ms. Akins. Based on Green's review of the claim file and his interview of the individuals, he concluded that the claim was false in that the expenses claimed had not been incurred. USAA requires that to be reimbursed to a policy holder, the expenses claimed have to have been actually incurred, but the policy does not define the term "incurred expenses." At the hearing, Ms. Akins indicated that she had been contacted by Respondent about renting her townhouse in question and she agreed to do so. They initially agreed upon a rental of $220.00 per day, she claims, but she also indicated Respondent agreed to pay to her in rent what he received from his insurance company. He gave her the checks which accompanied the claim, but asked her not to cash them because there was not enough money in the account to honor them, and she did not do so. She had rented the apartment to Respondent several years previously for a monthly rental of $400 to $475, but he contends, and she agrees, that this was only a part of the consideration paid for the rental. He also did some work around the property which, he contends, and she agrees, made up the balance of the consideration for the rental. No clear indication of what that work was, or its value, was presented, and it is found that the rental paid in the prior rental was considerably less that $220.00 per day and a claim for that amount is both unreasonable and unrealistic. Ms. Akins contends she ultimately received a cashier's check for $3,000 in rent from Respondent. Based on his conclusion that the claim was false, consistent with the requirements of the Department of Insurance, Theodore Hammer forwarded the claim to the Department for further action. Hammer, a fraud investigator for the Department, conducted additional inquiry into the claim, more specifically into the second claim regarding the payment to Ms. McClendon. During the interview with Ms. McClendon, she indicated she had agreed to Respondent's sons staying with her for a while, but they did not discuss any fee for this and he did not give her the check for $945.00. At hearing, Ms. McClendon also contended that the agreement with Respondent called for him to pay her whatever he received from the insurance company. Respondent ultimately gave her a total of $225.00. Respondent claims that when his home burned on May 15, 1997, he initially moved, with his sons, into a motel where they all stayed for several nights. He then made an arrangement with Ms. McClendon for his sons to stay with her for $45.00 per day. There was no written contract. Respondent remained in a motel until he had charged all his credit card would allow. However, the receipts offered into evidence reflect the credit card used was an American Express card, and there is usually no credit limit on a card from that company. This inconsistency was not explored by either party. He reached an agreement, he claims, with Ms. Akins whereby he would pay her $225.00 per day for rent of her two- bedroom house which is what he asserts two rooms in a motel would cost. Review of the receipts for Respondent's stay at the AmeriSuites and the DoubleTree reflects a maximum of $88.00 per night at the former and about the same at the latter; a figure which, when doubled, will still total far less that $225.00. However, if cost of food is included in the tabulation of motel living expense, Respondent's claim is not too far off. Respondent estimated his stay in the Akins property would only be for a few weeks, but the repair process took far longer than expected. Finally, even though his house was not finished, he moved back in. When, during the investigation, Mr. Green asked Respondent for the cancelled checks to support his claim, Respondent did not know what he was talking about. There were no cancelled checks. He admits he had written the checks in issue, but had given them, as appropriate, to Ms. Akins and Ms. McClendon and had asked them not to cash them. Respondent, an insurance adjuster for a significant period of time before this incident, claims he did not understand that he could not be reimbursed for money he had not actually spent. He claims he did not intend to misrepresent the situation to the insurance company or to make a profit from the deal. His difficulty, he claims, lay in his poor letter-writing skills which permitted him to indicate in the claim letter that the check copies he had enclosed were cancelled. Though he is not sure what the insurance company policy on payment of claims was, he contends he understood the company would pay for obligations he incurred, and he did not have to wait until he had satisfied these obligations before seeking reimbursement for them. Respondent asserts that when he submitted both claims letters, he did not mean to imply that he had paid the sums represented by the checks or than they had been cancelled. Respondent indicated he had agreed to pay his friends the same amount he was paying at the motel, but a review of the receipts reflects he paid for only one room each night at a rate far less than $225.00 per night. He claims, and his friends confirmed at hearing, that he had agreed to pay only what the insurance company would reimburse him, yet the agreement he submitted with the claim, purporting to bear the signature of Ms. Akins, is a blatant forgery. Further, his claim that his letter referring to the checks as cancelled was an ignorant and inartful use of words is disingenuous and unbelievable. Respondent's counsel contends that the policy in issue does not require the expenses claimed be actually paid before reimbursement, and that Mr. Green did not so indicate when he interviewed Respondent. However, at hearing Mr. Green unequivocally stated company policy that indicated they must be. In the balance, it is found that an insurance adjuster with the years of experience possessed by Respondent would know that. Further, Respondent's contention that the company's denial of the claim, and the resultant lack of loss to the company, when coupled with a lack of adjustment offer by the company, renders Respondent's conduct non-actionable is non-persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order in this matter suspending Respondent’s license as an all lines insurance adjuster for a period of twelve months. DONE AND ENTERED this 18th day of November, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1999. COPIES FURNISHED: David W. Nam, Esquire David Busch, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Christopher Clark, Esquire C. Laing Clark, P.A. 1958 West Dr. Martin Luther King Jr. Boulevard Tampa, Florida 33607 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Edward Berk, Respondent, was at all times here relevant licensed as an ordinary life, including disability, insurance agent to represent Founders Life Assurance Company, Standard Security Life Insurance Company of New York, American Variable Annuity Life Assurance Company, Wisconsin Life Insurance Company, Columbian Mutual Life Insurance Company, and Lone Star Life Insurance Company. He is licensed as a disability insurance (2-40) agent to represent American Family Life Assurance Company of Columbus and an ordinary life (2-16) agent to represent Estate Life Insurance Company of America. (Exhibit 1). On April 12, 1979 Respondent pleaded guilty in the U. S. District Court for the Southern District of New York of violation of 18 USC 1341 and 1342 to wit: unlawfully, willfully and knowingly devising and intending to devise a scheme and artifice to defraud and to obtain money from The Travelers Insurance Company by means of false and fraudulent pretenses, representations , and promises. He was found guilty and sentenced to two years imprisonment on each of five counts, the sentences to run concurrently. The execution of the sentence was suspended and Respondent was placed on probation for a period of two years (Exhibits 2)
