The Issue The issues are whether, pursuant to section 559.929(3), Florida Statutes (2019), Petitioner has been injured by the fraud, misrepresentation, breach of contract, financial failure, or any other violation of chapter 559, part XI, by Respondent Travbuzz, Inc. (Respondent), for prearranged travel services and, if so, the extent to which Respondent is indebted to Petitioner on account of the injury.
Findings Of Fact Respondent provides prearranged travel services for individuals or groups. Having relocated from New Jersey to Miami, Florida, evidently in 2018, Respondent has been registered at all material times with the Department as a "seller of travel" within the meaning of the Act and holds registration number ST-41461. With Respondent as the principal, the Surety issued a Sellers of Travel Surety Bond bearing bond number 10076529 in the amount of $25,000, effective from June 22, 2018, until duly cancelled (Bond). On November 12, 2019, Petitioner, a resident of San Diego, California, purchased from Respondent one ticket for himself and one ticket for his daughter on the Palace on Wheels: A Week in Wonderland Tour (POWAWIWT) with a departure date of April 1, 2020. Earnestly described by Respondent's principal as a "cruise ship on wheels," the POWAWIWT provides one week's transportation, accommodations, and meals for travelers seeking to visit several of India's cultural and historical landmarks without the inconvenience of changing hotels, finding restaurants, arranging intercity transportation, or, it seems, obtaining refunds for trips that never take place. The purchase price for two POWAWIWT tickets was $8600.40. Additionally, Petitioner purchased from Respondent a guided side trip at one location for $75. At the time of the purchase of the two POWAWIWT tickets, Respondent charged Petitioner's credit card for the required downpayment of $1911.20 for both tickets. By personal check dated January 6, 2020, Petitioner timely paid the balance due for both tickets of $6689.20. By personal check dated February 19, 2020, Petitioner paid the $75 charge for the side trip. The credit card issuer duly debited Petitioner's account and credited Respondent's account for the charged amount, and Respondent obtained the funds represented by both checks. Petitioner later disputed the credit card charges, and the credit card company debited the $1911.20 amount in dispute from Respondent's account. Although Petitioner claimed that his account had not been credited for this amount, as of the evening prior to the hearing, Respondent's credit for these charges had not been restored, so the $1911.20 still seems to be in the possession of the credit card issuer. Despite availing himself of the remedy available under the Act, Petitioner has not authorized the credit card issuer to restore to Respondent's account the credit for the $1911.20. This case is a byproduct of the emerging Covid-19 pandemic, which, as discussed below, caused RTDC to cancel Petitioner's April 1 POWAWIWT. According to Respondent, RTDC has refused to refund Petitioner's payment of $8600.40 gross or about $8000 after deducting Respondent's 7% commission.1 Although Respondent's principal deflects the blame to RTDC for its no-refund policy and to Petitioner for supposedly waffling on the relief that he sought for the cancelled trip, Respondent quietly has declined to refund its commission of approximately $600, as well as the additional $75 payment, although the failure to refund the $75 may be explained by Petitioner's failure to address this negligible amount until he prepared the Prehearing Statement in this case. 1 Respondent's principal testified that Respondent discounted the price of the April 1 POWAWIWT by reducing its standard 17% commission, which would approximate $1460, to 7%, for a 10% discount, or about $860, leaving a net commission of about $600. Respondent's factual defenses to Petitioner's refund claim include the several defenses set forth above and a new defense asserted for the first time at the hearing: Petitioner cancelled his POWAWIWT before RTDC cancelled his POWAWIWT, so Petitioner was never entitled to a refund under the terms of the Contract. This defense oddly finds more support in Petitioner's allegation that he demanded a refund before RTDC cancelled the April 1 POWAWIWT than in Respondent's allegation that Petitioner did not demand a refund until the March 13 email, in which he reported that RTDC had cancelled the April 1 POWAWIWT.2 Regardless, this new defense is no more supported by the facts than Respondent's previously stated defenses. Respondent's who-cancelled-first defense is based on emails and telephone calls. Petitioner's emails portray his consistent efforts to obtain a refund for the trip, but only after RTDC had cancelled the April 1 POWAWIWT. The lone email of Respondent's principal serves to reveal Respondent's inability to respond meaningfully to Petitioner's efforts to protect his travel purchase and raises the possibility of bad faith on the part of Respondent's principal. On March 9, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the March POWAWIWTs, but not the April 1 POWAWIWT. This email does not seek to cancel the April 1 POWAWIWT, but expresses concern that RTDC will cancel the trip. On March 13, Petitioner emailed Respondent's principal a Times of India news article that reported that RTDC had cancelled the remaining POWAWIWTs through April. This email complains that RTDC had not 2 This oddity is unsurprising given the patter of each witness's testimony. Respondent's principal peppered his testimony with false apologies while, in a reassuring tone, he gently deferred and deflected blame and patiently, but mistakenly, insisted that the Contract did not require him to refund monies paid for a train trip that never took place. Petitioner frenetically rebutted each factual defense while somehow missing the salient points that he had paid for a POWAWIWT that never took place, Respondent refused to refund Petitioner's payment, and the Contract calls for a refund. Although a retired appellate attorney for the state of California, Petitioner seems to have grounded his early demands for a refund on natural law, because he appears not to have discovered one of the crucial contractual provisions, as discussed below, until he prepared the Prehearing Statement responded to Petitioner's requests for information, requests advice as to his available options, and asks for some assurance that Petitioner would not lose his payments of $8600 for the train tour plus an unspecified amount "for post trip activities" that are also unspecified. On March 15, Petitioner emailed Respondent's principal a news article in The Hindu that reported that another operator of train tours in India was paying refunds for cancelled trips and all tourist visas into India had been cancelled through April 15. This email implores Respondent to do the right thing and immediately refund the money paid for the cancelled trip. A few hours later, Petitioner emailed Respondent's principal an India West news article that reported that India was now in a complete lockdown and the Indian government had cancelled all nondiplomatic visas. This email asks Respondent's principal to keep Petitioner informed on what RTDC was going to do and expresses hope that RTDC issues refunds. On March 19, Respondent's principal emailed Petitioner that "we are reaching some agreement with our ground operator for the train and this is what is being finalized." The statement clearly discloses no agreement, but, at best, an expectation of an agreement. The email describes the expected agreement to allow Petitioner to take a POWAWIWT during the following season from September 2020 through April 2021, but requires Petitioner to select travel dates within six days and pay whatever fare is in effect at the time of the trip. Respondent's principal never explained why Petitioner had only six days to accept an "offer" that RTDC had not yet authorized its agent to make, might not authorize within the six-day deadline, and might not ever authorize. Respondent's demand for a near-immediate acceptance of a nonexistent offer of a trip at market price was unreasonable and suggests that Respondent's principal was merely trying to induce Petitioner to make an offer in the form of an acceptance, so the principal might have greater bargaining leverage with RTDC. On March 23, Petitioner emailed Respondent's principal, noting a series of unanswered emails and phone calls from Petitioner to the principal since the receipt of the March 19 "offer." Asking for clarification of the terms of the "offer," Petitioner's email concedes that it appears that Petitioner's money is lost and asks merely that Respondent show him the courtesy of calling him, confirming his fear, and providing a full explanation of what happened. Later that day, an employee of Respondent emailed Petitioner and informed him that the principal was suffering from a respiratory disorder and was unable to talk, so that future communications needed to be by email. Petitioner received no more emails from Respondent's principal, who, having returned to the United States after taking a POWAWIWT in early March, was later diagnosed with Covid. The telephone calls are undocumented. The credibility of Respondent's principal started to leave the tracks with the March 19 email of an illusory "offer" with an immediate deadline for acceptance. A month later, in responding to the disputed credit card charge, the credibility of Respondent's principal derailed completely, as he attempted to resecure the $1911.20 credit with material misrepresentations of what had taken place in an email dated April 21 to the credit card issuer. The email claims that Petitioner never cancelled the trip, so he was a "no-show"--a Kafkaesque claim that implies a duty to report for a trip that, undisclosed in the email, the sponsor had cancelled over two weeks prior to departure. The email states that, at the beginning of March, Petitioner called and said he did not feel comfortable taking the trip, but the trains were still running and "'Cancel for Fear'" was not an allowable reason for waiving a cancellation fee--perhaps true, but irrelevant. The email encloses a copy of the principal's March 19 email, states that Petitioner did not accept this "offer," and concludes that "[s]ince [Petitioner] did not cancel or inform us of the decision for travel before the travel date, the charge is valid as per the terms and conditions." The email cites a provision of the Contract addressing no-shows and, despite the absence of any mention of RTDC's cancellation of the trip due to the pandemic, adds a seemingly obscure reference to another provision of the Contract addressing acts of God, medical epidemics, quarantines, or other causes beyond Respondent's control for the cancellation of a trip. Notably, the email omits mention of the provisions of the Contract, described below, clearly calling for a refund. On balance, it is impossible to credit the testimony of Respondent's principal that, in telephone calls, Petitioner cancelled the trip before RTDC cancelled the trip or, more generally, that Petitioner could not settle on an acceptable remedy, and his indecisiveness prevented Respondent's principal from negotiating a settlement with RTDC--an assertion that, even if proved, would be irrelevant. Notwithstanding resolute attempts by Respondent's principal to misdirect attention from these unavoidable facts, Petitioner has paid for a train tour that never took place, RTDC cancelled the tour, and Petitioner never cancelled his tickets. The question is therefore whether, in its Contract, Respondent successfully transferred the risk of loss to Petitioner for a trip cancelled by the tour sponsor due to the pandemic. Analysis of this issue necessitates consideration of several provisions of the Contract that, despite its prolixity, is initially remarkable for two omissions: Respondent's Seller of Travel registration number3 and the name of RTDC as the sponsor of the POWAWIWT. Respondent claims that Petitioner caused his injury by declining to purchase travel insurance. The cover page of the Contract contains a section 3 Section 559.928(5) requires a seller of travel to include in each consumer contract the following: "[Name of seller of travel] is registered with the State of Florida as a Seller of Travel. Registration No. [X]." Even absent any mention of a statute, this disclosure provides a consumer with some means to learn of the somewhat obscure Act, the seller's statutory responsibilities, and the relief that may be available to a consumer for a seller's failure to discharge these responsibilities. Petitioner testified only that he somehow learned of the Act, but never said how. The record does not permit a finding that the omission of the statutory disclosure was purposeful, so as to conceal from the consumer the existence of the Act, or was a product of guileless ineptitude. called "Travel Insurance." This section provides an opportunity to purchase travel insurance from an entity "recommended by [Respondent]." The options are to check a box to purchase from Respondent's recommended entity or to check a box that states the traveler undertakes to obtain travel insurance independently, but this provision adds that, if travel insurance is not obtained, the consumer "absolve[s Respondent, t]he tour operator and the travel agent of all possible liabilities which may arise due to my failure to obtain adequate insurance coverage." Respondent offered no proof that its recommended travel insurance or other available travel insurance would pay for the cancellation of the April 1 POWAWIWT due to the pandemic, so Petitioner's choice not to purchase travel insurance is irrelevant. Additionally, the clear provisions of the Contract, discussed below, requiring a refund for a trip cancelled by the sponsor rebut Respondent's labored effort to apply the travel insurance provision to shift to the customer the risk of loss posed by a cancellation of the trip by the sponsor--a risk that might be better addressed by Respondent's purchase of commercial business interruption insurance. Respondent claims that the trip was cancelled by RTDC too close to the departure date to entitle Petitioner to any refund. The Contract contains a section called "Cancellation Fees." This section provides for increasing cancellation fees based on the proximity of the cancellation to the trip departure date. The Contract provides a 10% cancellation fee "if cancelled" more than 90 days prior to departure, 20% cancellation fee "if cancelled" between 89 and 35 days prior to departure, and 100% cancellation fee "if cancelled" within 34 days prior to departure. The Contract fails to specify if this provision applies to cancellations at the instance of the consumer or the trip sponsor, but the graduated fee reflects the greater value of a trip cancelled well in advance of the trip departure date, so that the trip can be resold. Obviously, a trip cancelled by a sponsor cannot be resold, so the cancellation fee provision applies only to a cancellation by a customer and does not shield Respondent from liability in this case. Lastly, Respondent relies on a section of the Contract called "Responsibility--Limitation of Liability." Provisions in this section warn that Respondent acts as an agent for a trip sponsor, such as the railroad, from which Respondent purchases the travel services. Although Respondent makes every effort to select the best providers of travel services, Respondent does not control their operations and thus CANNOT BE HELD LIABLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER CLAIM which may occur as a result of any and/or all of the following: the wrongful, negligent or arbitrary acts or omissions on the part of the independent supplier, agent, its employees or others who are not under the direct control or supervision of [Respondent]; [or] * * * (3) loss, injury or damage to person, property or otherwise, resulting directly or indirectly from any Acts of God, dangers incident to … medical epidemics, quarantines, … delays or cancellations or alterations in itinerary due to schedule changes, or from any causes beyond [Respondent's] control. … In case of overbooking, [Respondent] will only be liable for refund [sic] the charged amount to the guest. [Respondent] shall in no event be responsible or liable for any direct, indirect, consequential, incidental, special or punitive damages arising from your interaction with any retailer/vendor, and [Respondent] expressly disclaims any responsibility or liability for any resulting loss or damage. The "Responsibility--Limitation of Liability" provisions are general disclaimers of liability for various forms of damages arising out of the acts and omissions of third parties or forces outside the control of Respondent, such as the pandemic. These provisions represent a prudent attempt to avoid liability for damages, such as the lost opportunity to visit a gravely ill relative who has since died, that may amount to many multiples of the price paid for a trip. Complementing these general provisions limiting Respondent's liability, other provisions limit Respondent's liability to the payment of a refund of the purchase price of a trip cancelled by the sponsor. The section immediately following the "Responsibility--Limitation of Liability" section is the "Reservation of Rights" section, which provides: "The company [i.e., Respondent] reserves the right to cancel any tour without notice before the tour and refund the money in full and is not responsible for any direct or indirect damages to the guest due to such action." As noted above, the Contract omits any mention of Respondent's principal, so as to Respondent in the place of its undisclosed principal; thus, a provision referring to a cancellation of the tour by Respondent includes a cancellation of the tour by Respondent's principal. As cited by Petitioner in the Prehearing Statement, the other relevant provision is in the "Prices, Rates & Fares" section and states that, if a customer cancels, any refund to which the customer is entitled, under the above-cited cancellation fee provisions, will be dependent on then-current exchange rates, but "[i]n the event that a tour is canceled through no action of the Client, the Client will receive a full refund of US$."4 This provision entitles a consumer to: 1) a refund and 2) a refund in U.S. dollars, presumably unadjusted for currency fluctuations since the payment. At the hearing, Respondent's principal tried to construe the "US$" provision as a reference to the currency to which a consumer is entitled to be paid when a consumer cancels a trip under conditions in which the customer is entitled to a refund, but this construction ignores that the cited clause applies to 4 An identical "US$" provision is found at the end of the section called "A Note About Cancellation for All Tours/Reservations." cancellations occurring through no action of the consumer and imposes on Respondent the obligation to make a "full refund" in such cases.
Recommendation It is RECOMMENDED that the Department enter a final order directing Respondent to pay Petitioner the sum of $6689.20 within 30 days of the date of the order and, absent timely payment, directing the Surety to pay Petitioner the sum of $6689.20 from the Bond. 7 Perhaps the recommended and final orders in this case will persuade the credit card issuer to issue the credit for the $1911.20 to Petitioner, who is entitled to this disputed sum. But, if Respondent regains possession of this disputed sum and refuses to refund it to Petitioner, the Department may wish to consider suspending or revoking Respondent's certificate or referring the matter to the Miami-Dade County State Attorney's Office. See the preceding footnote. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Gil Gonzalez 8444 Mono Lake Drive San Diego, California 92119 (eServed) Benjamin C. Patton, Esquire McRae & Metcalf, P.A. 2612 Centennial Place Tallahassee, Florida 32308 (eServed) H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 (eServed) W. Alan Parkinson, Bureau Chief Department of Agriculture and Consumer Services Rhodes Building, R-3 2005 Apalachee Parkway Tallahassee, Florida 32399-6500 Tom A. Steckler, Director Division of Consumer Services Department of Agriculture and Consumer Services Mayo Building, Room 520 407 South Calhoun Street Tallahassee, Florida 32399-0800
The Issue The issues presented for decision are whether Respondent discriminated against Derrick Bhayat on the basis of his race or national origin by failing to approve his application to purchase a condominium unit in Respondent's building, and, if so, what are the damages to which Mr. Bhayat is entitled.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Commission is the state agency charged with investigating complaints of discriminatory housing practices and enforcing the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2003). The Commission is charged with investigating fair housing complaints filed with the Commission and with the federal Department of Housing and Urban Development ("HUD") under the Federal Fair Housing Act, 42 U.S.C. Section 3601, et. seq. For the past ten years, Derrick Bhayat has been a realtor with Michael Sanders and Company in Sarasota. Before that, Mr. Bhayat worked for the United States Department of Defense in Europe. Mr. Bhayat is originally from Capetown, South Africa, where he was considered "colored." His ancestry is Malaysian, Zulu, and French. It is undisputed that Mr. Bhayat is a person of color. Respondent, One Watergate, is the duly-incorporated owners' association for the One Watergate condominium building in Sarasota. The Board is the governing body of One Watergate and is responsible for the approval or denial of potential residents and purchasers of units in the One Watergate building. Prior to May 2002, prospective buyers or residents at One Watergate were required to complete an application that asked for character references but did not require the applicant to provide bank references or other financial information. In early 2001, the Board commenced a search process to find a third-party investigative firm to conduct more detailed screenings of potential residents and purchasers at One Watergate. In April 2002, then-president Richard Bouchard provided the Board with detailed information regarding one such firm, Renters Reference of Florida, Inc. ("Renters Reference"), an investigative consumer reporting agency operating under the Federal Fair Credit Reporting Act. Renters Reference performs background checks of potential residents, employees, and contractors for such residential entities as condominiums, homeowner associations, and mobile home parks. On April 16, 2002, the Board met in a duly-noticed, regularly scheduled meeting. On the motion of Board member John Wilhelm, the Board voted to pursue a contract with Renters Reference to conduct applicant screenings. On May 2, 2002, One Watergate and Renters Reference entered into an "Agreement for Service" for the conduct of confidential background checks, credit checks, and other screenings of potential One Watergate residents. In cooperation with the Board, Renters Reference established a form "Application for Occupancy/Approval" to be completed by potential residents and a form "Application for Purchase, Transfer, Gift, Devise or Inheritance Approval" to be completed by potential unit purchasers. The forms required applicants to sign an authorization to release their banking, credit, residence, employment, and police record information to Renters Reference. The forms also required applicants to disclose their Social Security numbers to Renters Reference, which would allow Renters Reference to obtain credit reports directly from the three national credit reporting agencies, Trans Union, Experian, and Equifax. The Application for Purchase form also contained a hold harmless provision requiring the applicant to assent to the following: I understand that the Board of Directors of One Watergate Association, Inc. may cause to be instituted an investigation of my background as the Board may deem necessary. Accordingly, I specifically authorize the Board of Directors, Management and Renters Reference of Florida, Inc. to make such investigation and agree that the information contained in this and the attached application may be used in such investigation, and that the Board of Directors, Officer and Management of the One Watergate Association, Inc, itself shall be held harmless from any action or claim by me in connection with the use of the information contained herein or any investigation by the Board of Directors. Both forms advised applicants that a failure to complete any portion would result in the application being "returned, not processed and not approved." Renters Reference advised One Watergate to strictly enforce the requirement that applicants complete all portions of the forms on the ground that a waiver of application requirements for any one applicant would necessitate such a waiver for any subsequent applicant or else invite a discrimination claim by the subsequent applicant. Applicants complete the forms and submit them to Janis Farr, the resident manager of One Watergate, who forwards the materials to Renters Reference for the conduct of its background investigation. After completing the investigation, Renters Reference sends a report to One Watergate with its findings. The Renters Reference report is purely informational. Renters Reference is not authorized to approve or deny the application, and it makes no recommendations as to approval of the application. The Board has established a screening committee to act upon the applications. The screening committee consists of Ms. Farr and the sitting Board president. The screening committee's decision to approve or disapprove the application is later subject to a ratification vote by the full Board. On May 16, 2002, potential unit purchaser Marcia Lang submitted a completed form Application for Occupancy/Approval and a completed form Application for Purchase. The application was forwarded to Renters Reference, which performed a background screening that included obtaining a Trans Union credit report dated May 24, 2002. Renters Reference completed its investigation on May 29, 2002, and made its report to One Watergate. The screening committee, consisting of Ms. Farr and then-president of the Board, Richard Bouchard, approved the application and issued an undated Certificate of Approval. Ms. Lang closed on her unit in One Watergate in August 2002. Because the Board does not meet during the months of May through August, the Board did not ratify the screening committee's approval until its October 15, 2002, meeting. On May 29, 2002, Mr. Bhayat entered into a contract with Janey and Paul Hess to purchase their One Watergate unit for $315,000. On May 30, 2002, Mr. Bhayat telephoned Ms. Farr and requested that he not be required to complete the application forms. Mr. Bhayat explained that he had always been cautious about providing personal information, such as his Social Security number to businesses. This general cautiousness became alarm in 2001 when his wife, Nancy Bhayat, was the victim of an identity theft. The thief used Mrs. Bhayat's Social Security number to obtain a Visa card and make $12,000 worth of purchases. Ms. Farr responded that the application would not be accepted unless all the requested information was provided. Nevertheless, on May 31, 2002, Mr. Bhayat submitted to the One Watergate office an Application for Occupancy/Approval and an Application for Purchase. On these applications, Mr. Bhayat did not provide his or his wife's Social Security number. He did not sign the authorization to release his banking, credit, residence, employment, and police record information to Renters Reference. Mr. Bhayat also struck through the hold harmless provision on the Application for Purchase. The applications were accompanied by a cover letter from Julie Horstkamp, Mr. Bhayat's attorney. The letter repeated Mr. Bhayat's concerns about disclosure of personal information and stated that the Bhayats did not want to release any more information than necessary to process their application. The letter stated that Ms. Horstkamp was enclosing, in addition to the two applications, a "credit report prepared by MSC Mortgage." Ms. Horstkamp also included attestations concerning the Bhayats' background that were intended to obviate the need for Renters Reference to perform a criminal records check. After receiving this package of materials from Mr. Bhayat, Ms. Farr consulted with Warren Plant, the president of Renters Reference, who again advised her that it would be in the best long-term interest of One Watergate to insist that the applications be completed in full. Ms. Farr then sent a letter to Ms. Horstkamp, dated May 31, 2002, and received by Ms. Horstkamp on June 3, 2002, that stated as follows: We are in receipt of the packet delivered from your office on behalf of Derrick & Nancy Bhayat. While we can appreciate the angst felt by the Bhayat's [sic] as the result of her identity theft, we must adhere to the stipulations of our new policy. The Board of Directors of One Watergate at a duly posted meeting in April 2002 approved a contract with Renters Reference Inc. to handle the investigation of prospective purchasers and lessees. they felt to best serve the security of all One Watergate owners, the approval process needed to be utilized to it [sic] fullest. You may inform your clients they can rest assured that all the information disclosed in this application will be held in complete confidence by both One Watergate Association and Renters Reference Inc., as we are bound by both [the] Federal Fair Credit Act and Florida Statutes Chapter 718. These laws apply to both the application as well as any reports received from them. Therefore we are returning the package to be completed in full. We cannot accept or approve this sale based on the incomplete information submitted. By letter dated June 4, 2002, Ms. Farr informed One Watergate's law firm of the situation with the Bhayats. With her letter, Ms. Farr enclosed correspondence received by Mr. Bouchard and other members of the Board from Janey Hess, owner of the unit that the Bhayats were attempting to purchase. Ms. Hess had written at least three letters to the Board on June 3 and 4, 2002, demanding an emergency meeting of the full Board to consider waiving the requirements of the new application forms, which sought "invasive and unnecessary information" from the Bhayats. Ms. Hess and Mr. Bouchard were also having conversations about the issues, but these took a turn toward personal animosity on the part of Ms. Hess. Ms. Hess' letters became progressively less concerned with the Bhayats' situation than with Mr. Bouchard's status as the owner of several One Watergate units and his alleged manipulation of rules restricting the rental of those units. Mr. Bouchard testified that his own lawyer advised him to cease communications with Ms. Hess. One Watergate's lawyer, Stephen Thompson, wrote a letter to both the Bhayats and the Hesses dated June 6, 2002, that stated as follows, in relevant part: In order to help facilitate the approval process, One Watergate has contracted with Renters Reference for applicant screening. The information necessary to process the Application for [sic] includes, but is not limited to the applicant's date of birth and social security number. It is my understanding that the application submitted by Mr. and Mrs. Bhayat did not include the required social security numbers for each of the applicants. While it is Mr. and Mrs. Bhayat's right to refuse to release this information to the Association, it is the Association's duty and responsibility to conduct thorough credit and criminal background checks on potential owners and tenants. Without the applicable social security numbers, such background checks cannot be conducted by Renters Reference and therefore such applications cannot be approved by One Watergate Association. While the Association is required to either approve or disapprove an application within thirty (30) days after receipt of such application, in the present situation the thirty (30) day time frame will not begin to run until a complete application is submitted, including the applicants' social security numbers. If Mr. and Mrs. Bhayat decide to submit a completed application, One Watergate Association will use their best efforts to obtain a complete background check and render a decision prior to the anticipated June 28, 2002, closing date. Negotiations commenced between Ms. Horstkamp, the Bhayats' attorney, and Adele Kurtz, Mr. Thompson's co-counsel, on behalf of One Watergate. On June 11, 2002, Ms. Kurtz wrote a letter to Ms. Horstkamp that stated as follows, in relevant part: Pursuant to our conversation yesterday, the Board of Directors of One Watergate Association had agreed to accept Mr. and Mrs. Bhayat's Application to purchase Unit 5-D so long as said Application was complete and accompanied by copies of their current driver's license and up to date credit reports for both purchasers. This action was taken for the sole purpose of alleviating any confusion there may have been by the Seller as related to the contract between One Watergate and Renters Reference. This action did not constitute a waiver or modification of the Application requirements and One Watergate retained the right to require complete and accurate applications be submitted to the Board for review. Ms. Kurtz went on to note that an application submitted by the Bhayats on June 10, 2002, was unacceptable because it did not include the Bhayats' driver's licenses, and the hold harmless clause was again stricken from the Application for Purchase. On June 12, 2002, Ms. Horstkamp responded that the Bhayats "are okay" with including the hold harmless provision, that they had submitted their driver's license information to One Watergate, and that the credit report covering both Mr. and Mrs. Bhayat had also been submitted. On June 14, 2002, Ms. Kurtz wrote a letter to Ms. Horstkamp that stated, in relevant part: It has come to my attention that the credit report submitted by Mr. and Mrs. Bhayat is not a credit report from a national credit reporting bureau but, in fact, is a consumer report which apparently is used quite often by mortgage brokers and realtors to compile only the positive aspects of an individual's credit reports. As a result of Mr. and Mrs. Bhayat's misrepresentation and attempt to deceive the Association, at this point only a complete and accurate application will be accepted by One Watergate Association. A complete and accurate application shall include both applicant's [sic] date of birth and social security numbers, as well as all other information requested on the application. . . . The credit report in question had been obtained by Mr. Bhayat through Gary McDonald, a home mortgage consultant with MSC Mortgage, a joint venture of Wells Fargo Bank, and Mr. Bhayat's employer, Michael Sanders and Company. Mr. Bhayat gave his Social Security number to Mr. McDonald, who ordered a report from RELS Reporting Services, a Wells Fargo-affiliated company that gathers information from the major credit reporting services. The report that Mr. McDonald generated for Mr. Bhayat is called a "tri-merge" report, because it combined information from all three major reporting services into a single report. The full report was 11 pages long. At the hearing, there was a dispute as to whether Mr. Bhayat submitted the full 11-page report to One Watergate, or whether he only submitted the first two pages summarizing the information in the full report. Mr. Bhayat insisted that he submitted the full report. Ms. Farr and Mr. Bouchard both testified that they had only ever seen the two-page summary. Mr. Plant testified that One Watergate forwarded to Renters Reference only the two-page summary, not the full 11-page report. The weight of the credible evidence leads to the finding that Mr. Bhayat submitted only the two-page summary of the RELS credit report, not the full 11 pages. In any event, the result would have been the same had Mr. Bhayat submitted the full RELS report, because Mr. Plant testified that even the full report did not meet Renters Reference's criteria for a credit report. Mr. Plant stated that Renters Reference deals directly with the credit reporting bureaus and will accept only a full report from one of the three major bureaus. He termed the RELS document a "concocted report," meaning that it is the product of a third party that bought information from a credit reporting bureau, then prepared its own report. Mr. Plant testified that he has found such "concocted reports" to be unreliable because their authors may make mistakes in transcribing the information from the credit reporting bureau and, more significantly, because their authors may downplay or hide negative information to assist the potential homebuyer in obtaining a loan. Mr. Plant further testified that his company does not "mess around" with the Fair Housing Act and that he would have immediately canceled the contract with One Watergate if he had had the least suspicion that the Board was basing its actions on Mr. Bhayat's race, color, or national origin. Mr. Plant has been the president of Renters Reference throughout its 25-year existence, and his long experience in these matters is credited. The Bhayats made no further attempts to submit applications to One Watergate. Neither the screening committee, nor the full Board, ever took official action because the application was never deemed complete. The Bhayats' purchase of the Hesses' unit fell through. The Hesses ultimately leased their unit to another person. The record indicates that several subsequent purchasers completed their applications and were approved to buy and reside in units in One Watergate without incident. The record indicates that, while the majority of One Watergate's residents are white, persons of color and of varying national origins own units and reside in One Watergate. No evidence was produced of strained relations among One Watergate's residents relating to their race, color, national origin, sex, handicap, familial status, or religion. The only direct evidence of any discriminatory intent behind the actions of One Watergate toward Mr. Bhayat came from the testimony of Ms. Hess. On June 14, 2002, before she was aware that the Board considered the Bhayats' second application incomplete, Ms. Hess went to the One Watergate office to give written permission for Mr. Bhayat's housepainter to come into her unit and commence work. She spoke to Larry Farr, the building superintendent and husband of Janis Farr. Ms. Hess testified that she asked Mr. Farr whether he had any news of Mr. Bhayat's status. Mr. Farr stated that he had not heard anything, but that "I knew the minute I saw that guy he was going to be trouble." Having never seen Mr. Bhayat, Ms. Hess asked Mr. Farr what he meant. Mr. Farr stated, "Just wait till you see him. You'll know." Ms. Hess testified that she pictured Mr. Bhayat as some large, frightening man, then learned that he was neither large nor frightening. Once she learned of Mr. Bhayat's heritage, she assumed that it was his color and/or national origin to which Mr. Farr was referring. Ms. Hess testified that Larry Farr "is a great guy . . . but he is the most uninhibited speaker of anyone on the premises . . . [S]ometimes, when he says things, I feel they reflect the opinion of the group. And so when he said that, I was just . . . shocked and thought, 'Well, this must be what they all thought.' That's the feeling I got." Mr. Farr vigorously denied making those statements to Ms. Hess and denied making any statements to anyone regarding Mr. Bhayat's race or national origin. It is noted that Ms. Hess made no contemporaneous mention of this conversation during the course of her correspondence with Mr. Bouchard and the Board; rather, she first mentioned it in a letter to the Board dated July 26, 2002, more than a month after Mr. Farr allegedly made the discriminatory remarks to her and after Mr. Bhayat had filed his Complaint with the Commission. Even if Ms. Hess' version of the conversation with Mr. Farr were to be credited, along with her assumption that Mr. Farr was referring to Mr. Bhayat's race or national origin, her intuitive leap in concluding that Mr. Farr's words reflected the opinion of anyone else would be unsupported. Contrary to Petitioner's assertion, Mr. Farr was not part of One Watergate's "management team." He was the maintenance man. Mr. Farr did not attend Board meetings, had no role in the process of accepting or rejecting applications, and did not discuss Mr. Bhayat with any Board members. There was no evidence presented that Mr. and Mrs. Farr ever talked about Mr. Bhayat, other than in regard to the aforementioned housepainter. There was no evidence that any member of the Board or the screening committee discriminated against Mr. Bhayat due to his race, national origin, or for any other reason. Most of them never met Mr. Bhayat and were unaware of his race or national origin during the period in dispute. Mr. Bhayat, for reasons of his own, simply declined to submit a complete application to One Watergate, which, in turn, declined to consider his incomplete application.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derrick Bhayat 101 South Gulfstream Avenue, No. 7E Sarasota, Florida 34236 Vicki D. Johnson, Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301-4857 Harry W. Haskins, Esquire Mary R. Hawk, Esquire Porges, Hamlin, Knowles & Prouty, P.A. One Watergate Association, Inc. 3400 South Tamiami Trail, Suite 201 Sarasota, Florida 34239 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether a final order dismissing the Petitioner's rule challenge should be entered because Respondent, United Safety Council, Inc., doing business as Florida Safety Council (United Safety Council), is not an "agency" within the Florida Administrative Procedures Act (APA), and there is no claim challenging a rule enacted by Respondent, Department of Highway Safety and Motor Vehicles (Department). HOLDINGS United Safety Council is not an “agency” within the definition of section 120.52(1), Florida Statutes (2010); thus Project Refocus' rule challenge against United Safety Council is not subject to the APA. Consequently, United Safety Council's Motion for Summary Final Order is Granted. Project Refocus' petition in the instant case does not challenge a Department rule or action, and the Department was never added or served as a party. Therefore, the Department's motion to remove it as a party is Granted.
The Issue The issues are whether the Florida Commission on Ethics (Ethics Commission) has jurisdiction over Counts I and IV of the Advocate's Amended Recommendation, pursuant to section 122.322(1), Florida Statutes; if jurisdiction exists over Count IV, whether Respondent, while a commissioner and vice mayor of the City of Margate (City), violated section 112.313(7), Florida Statutes, by appearing before the City commission on behalf of his employer, which was seeking a beer and wine license for consumption on the premises (2COP); and whether Respondent is entitled to an award of attorneys' fees and costs, pursuant to section 57.105(5), Florida Statutes.
Findings Of Fact The Complaint is on a Ethics Commission form (Form 50) that asks the complainant for a full explanation of the complaint. The complaint form refers twice to documents. The complaint form asks the complainant not to attach copies of lengthy documents; the form assures that, "if they are relevant, your description of them will suffice." The oath printed on the complaint form states: "I . . . do depose on oath or affirmation . . . that the facts set forth in the foregoing complaint and attachments thereto are true and correct to the best of my knowledge and belief." The Complaint, which is signed and notarized, contains no explanation or narrative, but Complainant attached 11 pages of copies of documents, which are marked as pages 3 through 13. Page three of the Complaint is an article dated March 8, 2012, and posted on MargateNews.net.5/ This article reports that, by a 3-2 vote, the City commission reprimanded Respondent for abusing City credit card privileges, even though Respondent claimed to have repaid any unauthorized charges. The article reports that one commissioner expressed a belief that Respondent misused a City credit card and committed a "few other abuses." At page four of the Complaint is a copy of the City credit card agreement signed by Respondent. Handwritten notations add: "This (i.e., the credit card agreement) states that he (Respondent) cannot use card for personal use in which he did[.] [H]e bought beer and wine for his bar with cash advance. Says he paid it back in cash be has no repcit (sic) for it." All handwritten notes on documents attached to the Complaint and Amended Complaint were made by Complainant.6/ At page five, a MargateNews.net article dated August 16, 2010, reports alleged tax and purchasing violations by McLean's Bar & Grill, which was located at 2160 Mears Parkway. This article mentions other matters, including Respondent's voting a pay raise for City commissioners and a property-tax hike, Respondent's "history of financial instability . . . and fiduciary irresponsibility," and Respondent's two residential evictions from 1996-2006 for lease defaults. At page six is an unsigned, typewritten letter about Respondent. This letter twice charges that Respondent misused a City credit card and also alleges that he failed to repay $15,000 from "a Margate taxpayer"--Complainant--and violated unspecified tax and purchasing laws as to alcoholic beverages. A handwritten note adds: "I read this at the commissioner meeting." Below this note is printed Complainant's name. At pages seven and eight, a MargateNews.net article dated October 30, 2011, states that Complainant had lent Respondent $15,000 for a kitchen addition at McLean's Bar & Grill, but Respondent had failed to repay the loan after the business closed. This article alludes to some bad debts and judgments against Respondent or his businesses, but portions of the article are illegible, and the meaning of these portions of the article is unclear. The same article reports that Respondent was now operating Dave's Tiki Bar, which was located at 238 North State Road 7. Part of this portion of the article is also illegible, but seems to report that Jean LeBlanc, a co-owner with Respondent of a "former Tiki Bar," cancelled the bar's 2COP beer and wine license, effectively closing the bar. To reopen the Tiki Bar, according to the article, Respondent convinced his fellow City commissioners to hold a special meeting of the City commission in August 2011 to grant a 2COP license to "Tiki bar petitioner, Kenneth Suhandron," whom the article describes as Respondent's "partner." The article notes that Respondent abstained from voting due to a conflict of interest. The article states that Respondent acquired the corporate owner of the bar days after the special meeting, so Respondent now holds the temporary 2COP license, even though he had not paid for it. An online update indicates that Respondent paid for the 2COP license on November 1, 2011. At page nine, a MargateNews.net article dated August 20, 2011, describes a special meeting of the City commission on August 15. This article states that Respondent had been managing the Tiki Bar when a disagreement between him and his partner, Mr. LeBlanc, resulted in the cancellation of the bar's 2COP beer and wine license. According to the article, Respondent found a new investor, Mr. Suhandron, to apply for a new 2COP license and called for a special meeting of the City commission to provide the necessary City approval for the applicant to obtain a 2COP license. The article notes that Respondent appeared at the meeting to represent the listed applicant, Mr. Suhandron, but abstained from voting due to a conflict of interest. At pages 10 through 12 are a final summary judgment against Respondent and McLean's Bar & Grill, Inc., for $29,638.60 and a final judgment against Respondent for $20,073.63. At page 13 is an email from Complainant that pertains to the charge of Respondent's misuse of a City credit card. Redacted from the email is reportedly an email that another City commissioner had sent to Complainant, who added a handwritten note to this effect. The Amended Complaint is on the same form as the Complaint and is also notarized.7/ Like the Complaint, the Amended Complaint contains no explanation or narration of the charges, but it contains 41 pages of copies of documents, which are attached as pages A-3 through A-43. At pages A-3 through A-4, a letter dated May 16, 2012, from the Ethics Commission to Complainant focuses on Respondent's alleged failure to repay the $15,000 loan from Complainant and Respondent's misuse of a City credit card. To this letter, Complainant added a handwritten note stating: I cannot prove he use[d] [a City credit card for cash advances] for alcohol. . . for bar but just the cash advance alone is breaking the law over [sentence abruptly ends]. Just last week he got fined again for selling illigiel [sic] beer that he bought from a gas station in his bar[.] It will be in margate news.net next week[. I]f you want I can email you a copy. This man is a con artist. Pages A-5 through A-8 comprise a promissory note evidencing the $15,000 loan from Complainant. Complainant handwrote on the note: "He never gave me 1 payment or any interest payments." Pages A-9 through A-14 are the minutes of a meeting of the City commission on March 7, 2012. The sole handwritten addition to these minutes is at the top of the first page: "Each one of the following [commissioners?] has info on it[. A]ll are highlighted or outlined for your use." According to the minutes, one commissioner stated that she believed that Respondent had misused a City credit card and wanted him to resign, but he refused to respond to her statement or, clearly, to resign. This commissioner asked the City attorney to identify the options available to the City commission. The City attorney informed the commission that there had not been a determination that Respondent had violated the standards of conduct or code of ethics in his use of a City credit card and advised that the City commission could order an investigation, prospectively clarify the restrictions on the use of City credit cards and provide for forfeiture of office for a violation of these restrictions, publicly censure or reprimand a City commissioner, or prohibit a City commissioner from using a City credit card. According to the minutes, another commissioner--the mayor--then stated that what Respondent had done was wrong. The commissioner who had called for Respondent's resignation then asked for an investigation to be conducted by the county Board of Ethics or the Ethics Commission. The mayor responded that either this commissioner or a resident would need to file such a request because the City commission was not in a position to do so itself. A motion to censure Respondent, revoke his City credit card, and order an investigation then failed for the lack of a second. A motion followed to censure Respondent and revoke his City credit card. This motion was amended to add a directive to the City attorney to add restrictions to the use of City credit cards and provide for forfeiture of office for their violation. Prior to a vote on this amended motion, someone made a motion to table the amended motion, but the motion to table failed by a 2-3 vote. The commission then considered the amended motion, which passed 3-2. Respondent voted to table the amended motion and against the amended motion. At pages A-15 through A-21, the minutes of a meeting of the City commission on March 21, 2012, state that Respondent asked the City manager to cancel his City credit card "in light of the recent inquiries on his use of the card." (It appears, though, that the adoption of the March 7 amended motion should already have resulted in the cancellation of Respondent's City credit card.) According to the minutes, Respondent then "apologized for the mistrust the matter had caused" and added that "he did not intentionally misuse his position to mistrust anyone." Reverting to more conventional syntax, Respondent concluded: "He could not change what happened, but he had made it right and said it would not happen again." Complainant drew a box around this paragraph of the minutes, and he drew an arrow pointing to a corner of the box. Later in the meeting, the City commission unanimously agreed to advertise an ordinance restricting the use of City credit cards and providing for the dismissal of any employee violating these restrictions. A handwritten note states that Respondent should nonetheless be removed from office for his misuse of a City credit card because "[h]e used card for cash advances and said he paid city back in cash, but no one has a record of him doing that." Pages A-22 through A-37 are the minutes of a meeting of the City commission on April 18, 2012, and four executed memoranda of voting conflict that appear to have been attached to the minutes. These minutes describe City commission votes on alcoholic beverage licenses as to which Respondent abstained from voting due to his employment, but the establishments seeking City commission approvals appear to have been unrelated to Respondent. As indicated in the joint factual stipulation, at all material times, Respondent served as a commissioner and vice mayor of the City commission, and, as such, Respondent was subject to part III, chapter 112, Florida Statutes. As indicated in the joint factual stipulation, Respondent misused a City credit card. As indicated in the joint factual stipulation, while serving as a commissioner and vice mayor of the City, Respondent represented his employer before the City commission in the employer's application for a license from the City commission. Respondent timely disclosed his employment relationship to the City commission, abstained from voting on the issue, and timely filed a Memorandum of Voting Conflict. Under the circumstances, the appearance of Respondent, as an employee of the Tiki Bar, at the August 15, 2011, special meeting of the City commission did not constitute, or serve as a precursor to, a continuing or frequently recurring conflict between Respondent's private interests and public duties, nor did this appearance impede the full and faithful discharge of Respondent's public duties. The key facts are the lack of significant regulatory jurisdiction of the City commission over the issuance and use of 2COP licenses, the one-time nature of the Tiki Bar's need for City commission approval for its request for a 2COP license, the employment relationship that existed between Respondent and the Tiki Bar, and the absence of any responsibilities imposed on Respondent due to his employment with the Tiki Bar to represent other parties in requests before the City commission.
Recommendation It is RECOMMENDED that the Ethics Commission enter a final order dismissing Counts II and IV, determining that Respondent violated section 112.313(6) as alleged in Count I, and imposing an administrative fine of $3000, censure, and a reprimand against Respondent. DONE AND ENTERED this 28th day of August, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2014. 1/ Available at
The Issue The issue in this case is whether disciplinary action should be taken against the Respondent's insurance licenses based upon the alleged violations of the Florida Insurance Code set forth in the Administrative Complaint.
Findings Of Fact Respondent is currently licensed in the state of Florida as life agent, health agent and life & health agent. Pursuant to a contractual agreement executed by the Respondent on September 23, 1988, the Respondent was employed by Independent Life as a debit agent and remained employed with the Company from September 26, 1988, through April 5, 1989. His responsibilities with the Company included sales and servicing of accounts. The Respondent's duties included collecting premiums from customers either weekly or monthly for remittance to the Company. Respondent and the other agents were specifically instructed that collected premiums were to be remitted on a daily basis. Independent Life agents were instructed that all premiums collected from insureds were to be recorded in the insured's premium receipt book. The agent was then required to record the collection on the Company's field accounting route list. The field accounting route list reflects the date the last premium payment was collected, the date the next premium is due, and whether the contract is on a monthly or weekly payment schedule. When a agent collects premiums from an insured on a different day than the date which is to be reflected on the field accounting route list, that information is recorded by the agent on a memo collection list. Finally, in those cases where an insured paid by mail, the payment was to be reflected on a mail pay receipt. Together, the mail pay receipt, the memo collection list and the field accounting list should reflect all payments recorded in the insureds' premium receipt book. In other words, the records contained in the premium receipt book should exactly balance the records which appear on the field accounting route list as supplemented by the mail pay receipts and memo collection list. When accounts are audited by the Company, the sales manager compares the entries in the premium receipt books with the records reflected on the Company's field accounting route list, mail pay receipts and memo collection list. If there is a discrepancy, then the Company conducts an investigation to determine if there is a shortage. Once a shortage has been discovered, it is recorded on the Company's balance due accounting form. This form reflects the shortages which occurred on each individual account. In addition, another balance due accounting form is prepared documenting all shortages on the agent's account. On on about April 5, 1989, Respondent collected the sum of $4.72 from Diana Brown. This sum represented the insured's monthly premium payment. The payment was recorded in the insured's premium receipt book, but was not remitted by Respondent to Independent Life and/or reflected on the field accounting route list or on a memo collection list. Thus, the Respondent collected the sum of $4.72, which represented the insured's premium for a period of one month, and converted the same to his own use and benefit. On or about December 8, 1988, the Respondent collected a monthly premium in the amount of $36.36 from Winnie Christopher. This payment of $36.36 was recorded in the insured's premium receipt book. However, only $27.27 was remitted to the Company and recorded on the Company's memo collection list. This evidence indicates that the Respondent misappropriated and converted to his own use and benefit the sum of $9.09 (which represented one week's premium payment by the insured.) During the month of February, 1989, Respondent collected the sum of $24.30 from Donza Queen, which represented her premium payment for February and March of 1989. This payment was recorded in the insured's premium receipt book. However, the Respondent only recorded $12.15 in the Company's field accounting route list and that sum was the total remitted to the Company. Respondent has failed to properly account for the total amount collected for the account of Donza Queen and has unlawfully misappropriated and converted the same to his own use and benefit. On or about December 8, 1988, the Respondent collected the sum of $27.41 from Georgia Curry. This sum, which represented the insured's monthly premium payments, was recorded in her premium receipt book. However, the field accounting route list prepared by Respondent for the week of December 5, 1988, did not reflect that this collection was applied to the insured's account. Thus, Respondent unlawfully misappropriated and converted to his own use and benefit the sum of $27.41 which should have been applied to the account of Georgia Curry. During the month of January, 1989, Harold Timmerman mailed to Independent Life the sum of $31.71, which represented his premium payment for a period of three (3) months. Pursuant to Company procedures, the office staff recorded the above payment in the insured's premium receipt book, mailed the premium receipt book to the premium payer and issued a mail pay receipt to the Respondent to be applied to Mr. Timmerman's account. The Respondent failed to apply this money to the insured's account. As a result, the policy lapsed in January, 1989, for failure to pay the required premium. The insured was without coverage for a period of three (3) months until Independent Life discovered the discrepancy. In January, 1989, the Respondent collected the sum of $18.43 from William Chambliss, which represented the insured's weekly premium payment. This collection was recorded in the insured's premium receipt book. However, the Respondent failed to apply the above payment to the insured's account. Thus, the Respondent unlawfully misappropriated and converted to his own use and benefit, the sum of $18.43 which should have been applied to the account of William Chambliss. On April 4, 1989, the Respondent collected $23.80 from Claudia Hester. This payment was recorded in the insured's premium receipt book, but it was not remitted to the Company and/or reflected on the field accounting route list. Therefore, the Respondent misappropriated and converted to his own use and benefit, the sum of $23.80 which should have been applied to the account of Claudia Hester. From September, 1987 to February, 1990, Anita Campbell was the Staff Sales Manager for Independent Life. Her duties as the Staff Sales Manager included, in part, assisting other agents who had difficulty collecting their debits. During a routine review of the Respondent's accounts, Ms. Campbell ascertained that the Respondent's arrears were very high and that collection percentages were very low. As a result and in accordance with her responsibilities as Staff Sales Manager, Ms. Campbell accompanied Respondent in the collection of his debit beginning the week of April 4, 1989. Although Ms. Campbell's purpose in accompanying Respondent on his debit route was to help him get his records in order, she soon determined that, in numerous cases, the insured's premium receipt books had been marked as reflecting the payment of premiums even though the premiums were not recorded on the Company's field accounting route list, memo collection list, or other company documents. Ms. Campbell unsuccessfully attempted to discuss this matter with the Respondent who became angry and threatened to walk off the job. On April 5, 1989, the Respondent did not return to work and he was subsequently terminated. Ms. Campbell's responsibilities as Staff Sales Manager also included collecting affidavits from numerous insureds on Respondent's debit route to determine whether documented shortages existed. Her investigation uncovered numerous cases where Respondent collected money but failed to record the premium in the insured's premium receipt book. Some insureds who claim that they made their payments lost their coverage because there was no record of the payment so the Company was unable to give them credit. In other instances, payments were recorded in the premium payer's receipt book, but were not recorded in the Company's field accounting route list. Ms. Campbell completed a report regarding the numerous deficiencies and gave it to Mr. Roy Young, the District Sales Manger, who forwarded the information to the home office for further action. An audit of Respondent's agency was conducted and revealed a deficit in the amount of $1,312.31. It appears that there may be additional shortages which can not be documented. Independent Life recovered the sum of $878.88 by withholding the Respondent's last paychecks. However, there is still a documented shortage due and owing to the Company of approximately $433.43. In an effort to recover these funds, Mr. Thomas Hisle from Independent Life sent a demand letter to the Respondent dated June 14, 1989. That letter notified Respondent that $433.43 was due and owing to Independent Life. Respondent has failed to pay any portion of this outstanding balance owed to the Company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a Final Order revoking Respondent's licenses as an insurance agent in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of April, 1991. J. STEPHEN MENTON 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 April, 1991. APPENDIX TO RECOMMENDED ORDER The Petitioner has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Petitioner. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 2. 3. Adopted 4 and 5. in substance in Findings of Fact 3, 4. Adopted in substance in Findings of Fact 6. 5. Adopted in substance in Findings of Fact 7. 6. Adopted in substance in Findings of Fact 8. 7. Adopted in substance in Findings of Fact 9. 8. Adopted in substance in Findings of Fact 10. 9. Adopted in substance in Findings of Fact 11. 10. Adopted in substance in Findings of Fact 12. 11. Adopted in substance in Findings of Fact 13. 12. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 15. Adopted in substance in Findings of Fact 16. Rejected as unnecessary. COPIES FURNISHED: John C. Jordan, Esquire Division of Legal Services 412 Larson Building Tallahassee, Florida 34953 Charles Neil Newman 2931 S. W. Brittle Circle Port St. Lucie, Florida 34953 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue is whether Robert J. Majka, Jr., violated the Florida Code of Ethics for Public Officers and Employees.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent Majka is subject to the Code of Ethics. Mr. Majka, during times pertinent, was Chief of Emergency Services for Bay County, Florida, and is a reporting individual, as that term is used in the Code of Ethics, and is required to file annual financial disclosures with the Bay County Supervisor of Elections, as provided by Section 112.3145(2)(c). On February 7, 2006, long after the events involved with this case, he was promoted to the position of Assistant County Manager. As Chief of Emergency Services, Mr. Majka was in charge of the County's corrections program. During times pertinent he employed a staff member named Ann Cahall, whose duties included interacting routinely with the County's privatized corrections provider, CCA. On or about August 31, 1999, the Bay County Commission was addressing the problem of inmate overcrowding in its county correctional facilities, which were operated by CCA. On or about that time, the county correctional facility exceeded capacity by about 352 inmates. The Bay County Commissioners decided to address the issue. The Bay County Commission directed County Manager Jonathan A. Mantay and his staff to study the problem and to recommend courses of action. As a result of the study, two possible courses of action were recommended. One possible course of action was the adoption of the "Lifeline" program operated by CCA in Nashville, Tennessee, which CCA claimed would reduce recidivism by teaching inmates life skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in Nashville. The other possible course of action was to emulate the program operated by Sheriff Joe Arpaio, of Maricopa County, Arizona. Sheriff Arpaio's program consists of housing inmates in tents that are sufficiently primitive that inmates, after having had the tenting experience, avoid repeating it either by not committing crimes in Maricopa County, or by committing them elsewhere. In order to evaluate the two courses of action, the Bay County Commission decided that three commissioners and certain staff should travel to the two sites and evaluate the programs. Mr. Majka, County Manager Mantay, and County Attorney Zimmerman, were among those who were designated to travel to Nashville and Phoenix. Mr. Majka's role, in giving that plan effect, was to contact CCA and Maricopa County and determine dates that they could support a visit from persons from Bay County. He contacted Brad Wiggins, the Director of Business Development for CCA, and also talked to the public information officer with the Maricopa County sheriff's office, in order to determine convenient dates. This was Mr. Majka's only involvement with the planning phase of the proposed trip. County Attorney Zimmerman called Mr. Wiggins on February 6, 2000, and inquired if CCA would pay for the airline tickets to Nashville. Mr. Zimmerman told Mr. Wiggins, when he asked CCA to pay for the trip, that having CCA pay the airfare, ". . . was the County's preferred way of doing things, and, in fact, that's when he recounted the story of the County taking some trips to New York and maybe some other places." Mr. Wiggins was not authorized by CCA to approve the payment of travel expenses for customers or others. He forwarded County Attorney Zimmerman's request to James Ball, his supervisor. Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about the Nashville headquarters of CCA. Dr. Crants directed Mr. Wiggins to fund the trip. Ultimately, as a result of these conversations, CCA paid Trade Winds Travel, Inc., of Panama City, Florida, for the cost of the air travel for the entire Bay County contingent to Nashville, and thence to Phoenix, and back to Panama City. The evidence is not conclusive as to whether it was the intent of CCA to fund the trip beyond Nashville, but they paid for the cost of the airfare for the entire trip. The request for the payment and the request to visit CCA in Nashville was driven by Bay County's needs, not by the needs of CCA. Bay County was one of CCA's most valued customers, however, and CCA was motivated to respond to their request. This was especially true because one of CCA's first contracts to provide correctional services was with Bay County. County Attorney Zimmerman's "marching orders" for many years was that if there was an opportunity to require a third party to pay an expense, then the third party should pay rather than Bay County. That policy is reflected in a variety of Bay County ordinances, including the requirement that developers pay for the cost of permitting. The third party payor policy was also reflected in a 1997 trip where Westinghouse was required by the County Commissioners to pay for the commissioners' and County staff's trip to Vancouver, B.C., and Long Island, New York, to evaluate the transfer of the resource recovery facility to another vendor. This was the trip that County Attorney Zimmerman discussed with Mr. Wiggins. This policy was set forth in a letter by County Attorney Zimmerman dated October 30, 1997, which informed the County Commissioners that all expenses in connection with their travel, and with the travel of staff, would be funded by Westinghouse. He further stated that, "[it] is our opinion that the payment of these necessary expenses are not 'gifts,' as that term is defined in State law." Prior to the trip to Nashville, Mr. Majka was present during a conversation between the County Manager and County Attorney. The discussion concerned whether Bay County or CCA would fund all or part of the trip. Mr. Majka could not have learned from this discussion that CCA would fund all or part of the trip, and nothing occurred which would have required him to make further inquiry. He specifically heard County Attorney Zimmerman opine during this conversation, that the trip was "legal." Subsequently, Mr. Majka was contacted by a Ms. Rogers in the County Manager's Office. He was directed to go to the County Manager's office to obtain an airline ticket for the trip. He does not recall if he received that information directly from Ms. Rogers or whether it was relayed to him by Ms. Cahall, but it was clear to him that the County Manager was requiring him to participate in the travel. He picked up the ticket as directed. The ticket did not indicate how payment was made. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and television reporter Carmen Coursey, by commercial air, to Nashville, Tennessee. On Saturday, February 26, 2000, they traveled to Phoenix, Arizona, and they returned to Panama City on Tuesday, February 29, 2000. The trip was authorized by the Bay County Commission subsequent to several public discussions concerning the need for an on-site visit to Nashville and Phoenix. There was a legitimate public purpose for the trip. Channel 13 television news reporter, Carmen Coursey accompanied the officials. It is clear that there was nothing about the trip that was accomplished sub rosa. The airfare was paid by CCA directly to Trade Winds Travel, Inc. CCA did not ask for or receive reimbursement from either Bay County or the travelers. The cost of Mr. Majka's airfare for the entire trip was $1,257. Mr. Majka did not learn that CCA paid for the airfare until three or more years after the trip was completed. Mr. Majka at the time of the trip had no reason to contemplate the cost. After learning that CCA paid the tariff, he also learned that the cost of the trip exceeded $100. Upon arrival in Nashville, Mr. Majka, and the other travelers were greeted by Mr. Wiggins, who transported them to the Downtown Courtyard Marriott Hotel in a van. The cost of the transportation was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. The value was not established. Mr. Majka did not know who paid for the ground transportation. The travelers ate dinner, February 24, 2000, as a group that evening. Someone paid for Mr. Majka's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Majka and the other travelers toured the Davidson County (Tennessee) Correctional Facility from 9:00 a.m. until noon. They ate lunch at the CCA corporate headquarters provided by CCA. That afternoon they met with Mr. Wiggins and other representatives of CCA. They discussed the possibility of CCA providing "Lifeline" and "Chances" programs operated by CCA, to Bay County. That evening, at CCA's expense, Mr. Majka and the other travelers were transported by CCA to a dinner that was paid for by CCA. CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Majka was not aware of either the cost of the dinner or who paid for it. Mr. Majka and the other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Majka learned after checking out from the Marriott, on February 26, 2000, through talking with others, that CCA had paid the hotel bill, but there is no evidence of record that he knew the amount, or that it was an amount more than $100. No evidence was adduced proving that Mr. Majka reasonably believed at that time that it was of a value of more than $100. On Saturday, February 26, 2000, Mr. Majka and the other travelers departed for Phoenix by air and observed Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire Department. The travelers, with the exception of County Attorney Zimmerman, stayed at the San Carlos Hotel. Mr. Majka's hotel bill in Phoenix was paid with a credit card issued to County Manager Mantay by Bay County. On Tuesday February 29, 2000, they all returned to Panama City. Bay County originally contracted with CCA to operate their detention facilities on September 3, 1985. This contract had a term of 20 years; however, it was amended on September 16, 1996, to reflect an expiration date of September 24, 1999. Other extensions followed. An amendment dated June 18, 2000, provided that "CCA shall operate the 'Lifeline Program' through September 1, 2001." On May 15, 2001, the contract was extended to September 30, 2006. Mr. Majka did not derive any person financial benefit as a result of CCA paying the lodging expenses in Nashville or as a result of CCA paying for his airfare. At no time has he attempted to reimburse CCA for the cost of the trip. Mr. Majka did not receive per diem or any amount in excess of the actual cost of the trip. The entity receiving a benefit from the trip was Bay County. Mr. Majka had a County credit card in his possession but by County policy he was not allowed to charge meals on it. His usual practice, when traveling on behalf of the County, is to obtain receipts and file an expense report at the conclusion of the trip. He would thereafter be reimbursed for his travel expenses. He did not file an expense report subsequent to this travel. It is found as a fact that the cost of the travel to Nashville and back to Panama City, and the cost of the hotel in Nashville, totaled more than $100 and Mr. Majka ultimately knew that the cost, when aggregated, was more than $100. Mr. Majka could not have acquired this belief, however, until more than three years after the trip because that is when he learned that CCA had paid for the airfare. It was not uncommon for Mr. Wiggins and other CCA officials to appear before the Bay County Commissioners on behalf of CCA, or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is defined in Section 112.3148(1)(b)1., and others interacted with Bay County on behalf of CCA and they were lobbyists also. During times relevant, Bay County did not maintain a lobbyist registration system.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that Robert J. Majka, Jr. did not violate Section 112.3148(4), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 17th day of August 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Albert T. Gimbel, Esquire Gary E. Early, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether the Respondent's license as a life insurance agent should be suspended or revoked based on the allegations set forth in the Department's Amended Administrative Complaint.
Findings Of Fact Respondent is currently licensed by the Department as a life insurance agent. On or about January 29, 1987, Respondent was charged with the felony, Misapplication of Funds, in the Circuit Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, Florida, Case No. 86-10485B. On or about February 12, 1987, Respondent was charged with the felony, Misapplication of Funds, in the Circuit Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, Florida, Case No. 87-1826B. On or about March 27, 1987, Respondent pled nolo contendre to two counts of Misapplication of Funds, a felony. The court withheld adjudication and placed Respondent on five years' probation for each count, to run concurrently; required Respondent to perform community service; and to pay restitution and court costs. On or about June 1, 1988, Respondent submitted an application to the Department for licensure as a health agent. Question 8 of the application asked, "Have you ever been charged with a felony?" Respondent answered "no" to that question. On or about September 20, 1988, Respondent submitted an application to the Department for licensure as a life insurance agent. Question 8 of the application asked, "Have you ever been charged with a felony?" Respondent answered "no" to that question. On the application dated June 1, 1988, and on the application dated September 20, 1988, Respondent signed and swore to the statement that read: I do solemnly swear that I will not directly or indirectly divide my commissions with any person other than a qualified life and/or health insurance agent, licensed by the State of Florida; that all answers to the foregoing questions are true and correct to the best of my knowledge and belief; that I will in good faith conduct myself in a manner befitting the insurance profession as set forth in the Code of Ethics; that I have not or will not withhold any information on myself that will in any way affect my qualifications as an insurance agent. (emphasis supplied) On or about August 15, 1991, the court revoked Respondent's probation because of a probation violation and Respondent was convicted of a felony, Misapplication of Funds, in Case Nos. 86-10485 and 87-1826. Respondent was sentenced to three and one-half years in prison followed by community control and probation. Respondent was incarcerated in both county jail and state prison for this felony conviction. Respondent's civil rights have not been restored. On or about May 21, 2000, Respondent completed and submitted an application for a health insurance agent license to the Department as his health agent license apparently had expired. Respondent answered "yes" to questions 3 and 4 on the application which inquired whether the applicant had ever been convicted, found guilty, or pled nolo contendre to a felony or to a crime punishable by imprisonment of one year or more. From November 1998 to March 2000, Respondent resided in Tucson, Arizona. Respondent did not notify the Department of his address change or his move from Florida to Arizona until May of 2000, when he submitted his health agent application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Insurance enter a final order finding that Respondent violated Sections 626.611, 626.621, and 626.551, Florida Statutes, and revoking Respondent's life insurance agent license. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. Hearings Hearings BARBARA J. STAROS Administrative Law Judge Division of Administrative 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 this 10th day of August, 2001.
The Issue The issue presented is whether Petitioner's application for licensure as a resident legal expense sales representative should be approved.
Findings Of Fact On September 9, 2003, Petitioner filed an electronic application with the Department seeking licensure as a resident legal expense sales representative. Petitioner answered "no" to the following question on that application: Have you ever had any professional license subjected to any of the following actions by any state agency or public authority in any jurisdiction: Revocation in Florida less than 2 years ago, Revocation in another state at anytime or in Florida more than 2 years ago, Suspension, Placed on probation, Administrative fine or penalty levied, Cease and desist order entered. At the end of the online application, immediately above a space for the applicant's signature and in a section of the application titled "Applicant Affirmation Statement," appears the following language: 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. . . . * * * 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 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(s). Pursuant to the instructions on the online form, Petitioner printed the "Applicant Affirmation Statement," signed it on September 15, 2003, and mailed it to the Department. After receipt of Petitioner's application, the Department received records from the National Association of Insurance Commissioners, indicating that the State of Wisconsin had previously taken an administrative action against Petitioner's license. Specifically, in 1988, Ms. Seibert had executed a Stipulation and Order with the State of Wisconsin regarding her alleged failure to respond to a written inquiry from the Office of the Commissioner of Insurance. That Stipulation and Order provided for a $250 forfeiture payable to the State of Wisconsin. The Wisconsin records ultimately obtained by the Department during the application process indicated that: In 1988, Ms. Seibert held a license with the State of Wisconsin as a permanent individual intermediary-agent. On June 13, 1988, while working for K&K Insurance Agency, Ms. Seibert wrote a letter to M.J.'s Action Cycle, Inc., whose insurance coverage was handled by Ms. Seibert's agency. The letter read, in part: [a]fter reviewing the Motor Vehicle Reports (MVR's) of your employees, our Underwriting Department has determined that the driving records of Bonnie M. Whitt and Marshall E. Whitt are being monitored at this time. Any additional violations will result in their being excluded from coverage under our policy. On June 28, 1988, Bonnie Whitt, one of the owners of M.J.'s Action Cycle, wrote a letter to the Wisconsin Insurance Commissioner's office requesting assistance with regard to Ms. Seibert's letter, specifically asking how far back in time their carrier could look at driving records, and at what point in time certain 1983 and 1984 tickets would be off the records. Bonnie Whitt's letter was received by the Insurance Commissioner's office on June 30, 1988. On August 24, the Commissioner's office sent a letter to K&K Insurance Agency, with a copy of Bonnie Whitt's letter attached, asking K&K to respond to Ms. Whitt and to provide the Commissioner's office with the response and other pertinent information. On August 26, 1988, Ms. Seibert responded to the Commissioner's office with the information requested. On September 8, 1988, the Commissioner's office wrote back to Ms. Seibert. Their letter stated: We are in receipt of your response dated August 26, 1988. Please review your letter dated June 13, 1988, addressed to . . . M.J.'s Cycle Action, Inc. Please explain how the statement that any additional violations will result in their being excluded from coverage under [your] policy is in compliance with s. 632.32(3), Wis. Stat.? Drivers may not be excluded in Wisconsin. In addition, please have Transamerica Insurance Company respond to the practice of excluding drivers. Pursuant to s. 601.42, Wis. Stat., your reply is requested within 15 days from your receipt of this letter. After Ms. Seibert received the September 8, 1988 letter from the Insurance Commissioner's office, she forwarded that letter to the Assistant Vice President of K&K Insurance. There was no response provided to the Wisconsin Insurance Commissioner's office within the time frame provided by that office. Under cover of a letter dated December 2, 1988, the Wisconsin Insurance Commissioner's office issued a Notice of Hearing, captioned In the Matter of Julie Seibert, Respondent, Case No. 88-C20630. According to the Notice of Hearing, the issue to be considered was whether Ms. Seibert's "permanent insurance intermediary agent license should be revoked, suspended, or limited in whole or in part . . ., whether a forfeiture should be ordered from Respondent . . ., and whether remedial orders should be issued. . . ." As a basis for the proceeding, the Wisconsin Insurance Commissioner's office alleged: Respondent, Julie Sweibert [sic], K&K Insurance Agency, Inc., . . . at all material time periods was a licensed Wisconsin intermediary agent (license #1026897) and subject to the jurisdiction and control of the Commissioner. On or about October 10, 1988, Respondent received a letter from the Office of the Commissioner of Insurance requesting a written reply. Respondent failed or refused to reply to this request. The allegations as set forth in paragraph (2) constitutes [sic] a violation of s. 601.42, Wis. Stat. Petitioner's employer, K&K Insurance, took full responsibility for the failure to respond to the Insurance Commissioner's office. In a letter dated December 28, 1988, the Assistant Vice President of K&K wrote the Insurance Commissioner's office, expressly noting that Petitioner had done all that was necessary to assure that the response to the written inquiry from the State of Wisconsin was made in a timely manner. He further noted that the delay which resulted in the Stipulation and Order resulted from improper handling on his part as Director of Compliance. The Wisconsin Stipulation and Order signed by Petitioner is captioned In the Matter of Julie Seibert, Case No. 88-C20630, and provides that Ms. Seibert "agrees to the imposition of a forfeiture of Two Hundred Fifty Dollars ($250.00) payable to the State of Wisconsin." Petitioner signed the Stipulation and Order on December 27, 1988. Petitioner's employer, K&K Insurance, paid the fine. In response to the Department's written inquiry about the Wisconsin administrative action during the licensing process, Petitioner indicated: . . . I am unable to provide an explanation as to the exact incident as I do not have records of it. My employer handled this at the time, K&K Insurance. I merely signed the document as a representative of the company as requested and their legal department handled it at that time. At the hearing, Petitioner acknowledged that, based on the information she had seen during the Florida application process, her license had in fact been subject to an administrative fine by the Wisconsin Insurance Commissioner's office in 1988. She testified, however, that at the time she filled out her application, she had not recalled the incident.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner violated Subsection 642.041(1), Florida Statutes (2003), and denying Petitioner's application for licensure, without prejudice for her to immediately reapply as provided by Section 626.191, Florida Statutes. DONE AND ENTERED this 9th day of July, 2004, 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 9th day of July, 2004. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Julia M. Seibert 3930 75th Street, West, No. 1620 Bradenton, Florida 34209 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
