Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a Florida corporation. It was incorporated on September 10, 1991. On August 25, 1995, it was administratively dissolved for failure to file its annual report. It has not been reinstated. At present, Petitioner has no assets. Its liabilities exceed $250,000.00 and include a judgment against it in the amount of $11,857.00 (plus interest) and numerous unpaid bills. Before its demise as an active corporation, 3/ Petitioner was a provider of travel services. It was registered as a "seller of travel" with the Agency in 1992 (from January 1 to December 31) and in 1993 (also from January 1 to December 31), during which time it held Seller of Travel Registration Number 14223. As part of the registration process, Petitioner posted with the Agency a $10,000.00 performance bond effective for the one year period commencing November 19, 1991 (the 1991-92 Performance Bond) and another $10,000.00 performance bond effective for the one year period commencing November 19, 1992 (the 1992-93 Performance Bond). 4/ The surety on these two performance bonds (the 1991-92 Performance Bond and the 1992-93 Performance Bond) was the Hartford Fire Insurance Company (the Hartford). Edward Volz, in his capacity as Petitioner's President, signed an indemnity agreement obligating Petitioner to indemnify the Hartford for any payments made by the Hartford "by reason or in consequence of its suretyship." 5/ Consumer claims against Petitioner were received by the Agency. By letter dated February 28, 1994, the Agency advised Petitioner of these "claims on the above referenced security" and of the Agency's intention "to make a demand under its [the security's] terms." By letter to the Hartford dated February 28, 1994, the Agency made "a demand on the surety bond." 6/ The letter read as follows: This is to notify your company that the Department of Agriculture and Consumer Services is in possession of claims made by persons who purchased travel-related services from the above-mentioned seller of travel [Petitioner]. This bond was issued by your company to secure the services of the seller of travel or to provide a refund to those customers who do not receive the services purchased. Please accept this letter as a demand on the surety bond. We would appreciate your advising this office in writing within fifteen (15) days from the date of this letter as to the form and information you require in order to make payment pursuant to the bonded obligation. If you have any questions please contact me at 904-922-2972 or Mr. Wayne Searcy, 904-922-2920. In or around March of 1994, Petitioner filed an application with the Agency to renew its "seller of travel" registration. In conjunction with the filing of its application, Petitioner posted with the Agency a $25,000.00 performance bond effective for the one year period commencing November 19, 1993 (the 1993-94 Performance Bond). The surety on the bond was the Hartford. 7/ By letter dated June 22, 1994, the Agency notified Petitioner that Petitioner's application for renewal of its registration had ben denied for failure "to provide a financial statement prepared by an independent public accountant." After receiving the Agency's June 22, 1994, letter, Petitioner discontinued its business operations. Having received additional claims against Petitioner since it had sent its February 28, 1994, demand letter to the Hartford and not having received any response from the Hartford to that letter, the Agency sent a second letter, dated September 29, 1994, to the Hartford. The letter read as follows: Subject: Excell Travel Club, Inc. 1239 East Newport Ctr., [Number] 113 Deerfield Beach, Florida 33442 Surety Bonds [Number] 41770-77 ($25,000) and [Number] 41770-77 ($10,000) Effective November 19, 1993/ Effective November 19, 1992 Dear Sir: The Department of Agriculture has claims exceeding the amount of the bonds [the 1992- 93 Performance Bond and the 1993-94 Performance Bond] from persons who purchased travel-related services from the above- mentioned seller of travel [Petitioner]. Therefore, the Department of Agriculture is making a demand on the bonds. The bonds were issued by your company to secure the services of the seller of travel or to provide a refund to those customers who do not receive the services purchased. Please accept this letter as a follow up demand on the surety bonds. We would appreciate your advising this office in writing within ten (10) days from the date of this letter as to the form and infor- mation you require in order to make payment to the bonded obligation. If you have any questions please contact me at 904-922-2820. A copy of this letter was sent to Petitioner. The Hartford sent a letter, dated October 18, 1994, to the Agency acknowledging receipt of the Agency's September 29, 1994, letter. Subsequently, the Hartford sent a second letter, dated November 2, 1994, to the Agency. The letter read as follows: RE: Our file: 319 S 26747 and 319 S 26748 Principal: Excell Travel Club, Inc. Dear Mr. Cloud: Enclosed are our checks totalling $35,000.00 which are in settlement of the two surety bonds with effective periods 11/19/92 to 11/19/93 and 11/19/93 to 11/19/94. Please acknowledge receipt of these two checks and acknowledge that our bonds are exonerated. Thank you for your advices concerning these matters. Appearing on both of the two checks that were enclosed with the Hartford's November 2, 1994, letter was the notation, "full and final settlement." Each of the checks also had a "loss date" written on it. The "loss date" written on the $10,000.00 check was November 18, 1993. The "loss date" written on the $25,000.00 check was September 29, 1994. Petitioner had no advance notice that the Hartford was going to make a "settlement" with the Agency. By letter dated May 17, 1995, the Agency advised Petitioner of its intention "to make distribution of the entire bond proceeds to the claimants on a pro rata basis." Thereafter, Petitioner filed a petition requesting an administrative hearing on such proposed action. Petitioner has not repaid any of the $35,000.00 that the Hartford paid the Agency for the benefit of those who filed claims against Petitioner, nor has the Hartford instituted legal proceedings to require Petitioner to indemnify it for having made such payment to the Agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency enter a final order dismissing, on the ground of lack of standing, Petitioner's petition requesting an administrative hearing on the Agency's proposed action to distribute the proceeds of the 1992-93 and 1993-94 Performance Bonds to claimants on a pro rata basis. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of October, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996.
Findings Of Fact Respondent-Principal, a licensed dealer in agricultural products, routinely ordered plants from Petitioner by telephone for pick up at Petitioner's warehouse in Apopka. Petitioner issued invoice statements on each order individually, which Respondent-Principal customarily paid by check, with a notation on each instrument showing the invoice number(s) to which payment applied. The transaction at issue commenced with a telephone order for tropical foliage placed on June 28, 1979. Petitioner began preparing this order on June 29 by removing plants from its greenhouse, but did not complete assembly of the foliage until sometime after June 29. Respondent-Principal picked up the shipment on July 2, 1979, as agreed. Concurrently, Petitioner billed Respondent-Principal for $2,647.34 on a two-page document identified as invoice 21561 (page 1) and 21562 (page 2). Petitioner continued to receive and fill Respondent-Principal's plant orders through August 20, 1979, after which sales transactions ceased. However, Respondent-Principal continued to make payments against various outstanding invoices. Respondent-Principal issued a check for $2,000.00 dated November 26, 1979, with no notation other than "pd on acct." Petitioner's president received this check on November 28, and instructed the bookkeeper to apply it to the largest invoice balance. Although the $2,647.34 due on invoice 21561/21562 was the oldest debt outstanding, the $3,489.31 due on invoice 21588 was the largest invoice balance, and the bookkeeper applied the payment to the latter debt accordingly. By letter dated January 11, 1980, Respondent-Principal advised Petitioner that it had ceased operations and would make a final payment on all of its debts to Petitioner in April or May, 1980. However, no payments were received after the November 26, 1979, check for $2,000.00.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Agriculture and Consumer Services enter its final order finding that Petitioner, Blalock Foliage, Inc., is due $2,647.34 from the sale of tropical foliage to Respondent, Exotic Plant Sales, Inc., as stated in Petitioner's Invoice 21561/21562; and, further, discharging Respondent, Fidelity & Deposit Company of Maryland, from liability under Chapter 604, Florida Statute, on this sale. DONE AND ENTERED this 22nd day of August, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1980. COPIES FURNISHED: Blalock Foliage, Inc. Mr. Timothy J. Blalock Post Office Drawer F West Kelly Park Drive Apopka, Florida 32703 Exotic Plant Sales, Inc. 1902 Charles Houston, Texas 77093 Fidelity & Deposit Company of Maryland 777 South Post Oak Building Suite 700 Houston, Texas 77903 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
The Issue Whether C. Fullerton and Landscaping Co., Inc., is indebted to Other Side Sod, LLC, for the purchase of sod and pallets; and, if so, in what amount.
Findings Of Fact Petitioner is a Florida Limited Liability Corporation located in Arcadia, Florida, and at all times relevant hereto was a producer of agricultural products, as defined by section 604.15(9), Florida Statutes. Petitioner is also a “dealer in agricultural products” within the meaning of section 604.15(2). Respondent, during all times relevant hereto, was a “dealer in agricultural products,” within the meaning of section 604.15(2). At all times relevant to this proceeding, Great American served as surety for Respondent. At all times relevant to this proceeding, Respondent was a customer of Other Side Sod. Respondent purchased sod from Petitioner and thereafter resold and installed the sod to Respondent’s customers. Petitioner sold sod to its customers on wooden pallets. An integral part of each transaction involved the pallets. There are 10 invoices in dispute which cover the period October 14, 2016, through February 10, 2017. For the underlying transactions that relate to the invoices in question, the following language is contained on each field/delivery ticket: Terms of Sale: Payment due upon receipt. All payment[s] applied to pallet balance first. Interest at the rate of 1 1/2% per month will be charged on unpaid invoice amounts after 14 days. Invoices will be charged $0.02 per square foot additional after 30 days. Purchaser agrees to pay all costs of collection, including attorney fees, in [the] event it is necessary to institute suit for collection. Venue will be in DeSoto County, Florida. All Sales F.O.B. Shipping Point. On or about October 14, 2016, Petitioner sent Respondent invoice 47293, which showed a balance due of $462 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 83,200 units of Bahia sod related to the transaction ($1,664). Petitioner also added to the invoice a charge of $124.80 for sales tax related to the late payment penalty ($1,664 x 7.50 percent). On or about October 23, 2016, Petitioner sent Respondent invoice 47378, which showed a balance due of $224 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 70,400 units of Bahia sod related to the transaction ($1,408). Petitioner also added to the invoice a charge of $105.60 for sales tax related to the late payment penalty ($1,408 x 7.50 percent). On or about October 24, 2016, Petitioner sent Respondent invoice 47420, which showed a balance due of $280 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 16,000 units of Bahia sod related to the transaction ($320). Petitioner also added to the invoice a charge of $24 for sales tax related to the late payment penalty ($320 x 7.50 percent). On or about November 13, 2016, Petitioner sent Respondent invoice 47549, which showed a balance due of $1,526 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 103,200 units of Bahia sod related to the transaction ($2,064). Petitioner also added to the invoice a charge of $154.80 for sales tax related to the late payment penalty ($2,064 x 7.50 percent). On or about December 6, 2016, Petitioner sent Respondent invoice 47755, which showed a balance due of $434 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 30,400 units of Bahia sod related to the transaction ($608). Petitioner also added to the invoice a charge of $45.60 for sales tax related to the late payment penalty ($608 x 7.50 percent). On or about January 8, 2017, Petitioner sent Respondent invoice 48093, which showed a balance due of $1,256 for 12,800 units of Bahia sod, $224 for a pallet deposit, and $72 for sales tax. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 12,800 units of Bahia sod related to the transaction ($256). Petitioner also added to the invoice a charge of $19.20 for sales tax related to the late payment penalty ($256 x 7.50 percent). On or about December 13, 2016, Petitioner sent Respondent invoice 48166, which showed a balance due of $343 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 163,200 units of Bahia sod related to the transaction ($3,264). Petitioner also added to the invoice a charge of $244.80 for sales tax related to the late payment penalty ($3,264 x 7.50 percent). On or about January 29, 2017, Petitioner sent Respondent invoice 48285, which showed a balance due of $3,000 for 40,000 units of Bahia sod, $308 for a pallet deposit, and $225 for sales tax (total = $3,533). On February 3, 2017, Respondent submitted to Petitioner partial payment in the amount of $3,210.50, which left an unpaid balance of $322.50. The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 40,000 units of Bahia sod related to the transaction ($800). Petitioner also added to the invoice a charge of $60 for sales tax related to the late payment penalty ($800 x 7.50 percent). On or about January 31, 2017, Petitioner sent Respondent invoice 48301, which showed a balance due of $390 for 5,200 units of Bahia sod, $91 for a pallet deposit, and $29.25 for sales tax (total = $510.25). On February 15, 2017, Respondent submitted to Petitioner partial payment in the amount of $468.33, which left an unpaid balance of $41.92.1/ The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 5,200 units of Bahia sod related to the transaction ($104). Petitioner also added to the invoice a charge of $7.80 for sales tax related to the late payment penalty ($104 x 7.50 percent). On or about February 10, 2017, Petitioner sent Respondent invoice 48409, which showed a balance due of $390 for 5,200 units of Bahia sod, $21 for a pallet deposit, and $29.25 for sales tax (total = $440.25). On February 15, 2017, Respondent submitted to Petitioner partial payment in the amount of $398.33, which left an unpaid balance of $41.92. The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 5,200 units of Bahia sod related to the transaction ($104). Petitioner also added to the invoice a charge of $7.80 for sales tax related to the late payment penalty ($104 x 7.50 percent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Other Side Sod, LLC, against C. Fullerton and Landscaping Co., Inc., in the amount of $4,981.34. DONE AND ENTERED this 7th day of November, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 7th day of November, 2017.
The Issue The issue is whether, as provided by the relevant statutes, Respondents owe Petitioner money for the sale of agricultural products.
Findings Of Fact At all material times, Petitioner, which is located in Homestead, Florida, has been a producer of agricultural products. At all material times, Respondent Small Indian Corporation (Respondent) has been a dealer in agricultural products. Respondent Cumberland Casualty and Surety Company, as surety (Surety), issued a bond to Respondent, as principal, in the amount of $27,600 for the period, November 26, 1999, through November 25, 2000. Surety also issued a bond to Respondent in the same amount for the following bond year. During the periods covered by this case, Petitioner sold to Respondent numerous avocados, limes, and papayas. The shipments were timely and conformed in quality and quantity to the orders. Petitioner timely issued invoices to Respondent for the sales of these agricultural products, but Respondent never paid any portion of these invoices. On May 25, 2001, Petitioner filed a complaint with the Department of Agriculture and Consumer Services (Department) for the period from November 22, 2000, through February 5, 2001. The Department required Petitioner to file separate complaints by bond year. Thus, Petitioner filed an amended complaint for $1190 for the bond year ending November 25, 2000, and an amended complaint for $54,591.25 for the bond year ending November 25, 2001. The date of the lone invoice within the bond year ending November 25, 2000, was November 22, 2000. The amended complaint concerning the bond year ending November 25, 2000, commenced DOAH Case No. 01-3320, and the amended complaint concerning the bond year ending November 25, 2001, commenced DOAH Case No. 01-3321. The allegations as to dates and amounts of invoices are all correct.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the amended complaint in DOAH Case No. 01-3320 and finding Respondent liable to Petitioner in DOAH Case No. 01-3321 for the sum of $54,591.25. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2001. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt Bureau Chief Bureau of License and Bond Department of Agriculture 514 East Tennessee Street India Building Tallahassee, Florida 32308 Carolann Swanson General Counsel Brooks Tropical, Inc. Post Office Box 900160 Homestead, Florida 33090 W. Sam Holland Hinshaw and Culbertson 200 South Biscayne Boulevard Suite 800 First Union Financial Center Miami, Florida 33131 Deborah A. Meek Cumberland Casualty and Surety Company 4311 West Waters Avenue, Suite 401 Tampa, Florida 33614
Findings Of Fact By letter dated December 27, 1977, VIRGINIA E. BELL, of VIRGINIA BELL REALTY, INC., forwarded to Mr. and Mrs. George Kuruzovich a contract for sale and purchase of real estate which had been executed by Robert and Patricia Gaudet. The cover letter from this respondent to Mr. and Mrs. Kuruzovich, stated that the contract provided for ". . . a net cash to you of not less than $7,500. This contract provided in paragraph twenty-two, "It is agreed that the seller shall net not less than $7,500 cash from sale herein upon closing." By letter dated January 3, 1978, Mr. George Kuruzovich informed Virginia E. Bell that the sellers approved the terms of the contract, with the understanding that they would receive net cash not less than $7,500. The contract dated December 27, 1977, was not consummated. However, a new contract, dated February 18, 1978, was executed by the sellers, George and Loretta Kuruzovich, with purchaser Patricia A. Gaudet. This contract likewise provided in paragraph twenty-two, ". . . sell [sic] shall net no less than $7,500 cash from sale herein payable upon closing." The contract dated February 18, 1978, was executed by all parties. The matter proceeded to closing, with the sellers authorizing Virginia E. Bell, to act as their agent. On May 4, 1978, Virginia E. Bell signed a letter to American Title Insurance Company stating that: "I, Virginia Bell, hereby certify that the proceeds of sale regarding the above captioned property is $7,053.34 and not $7,500.00 as required under the special provisions of the Sales Contract and that Virginia Bell Realty will assume any liability as far as payment concerning the net proceeds to Mr. and Mrs. George Kuruzovich, and furthermore, I will not hold American Title Insurance Company responsible for same." On May 4, 1978, the closing on the February 18, 1978, contract was consummated. Mr. and Mrs. George Kuruzovich, the sellers, received $7,053.34 in cash for the sale of their home. By letter dated May 5, 1978, to Mr. and Mrs. Kuruzovich the Respondent, Virginia Bell, explained that the cash discrepancy was due to prorations of $155 for taxes, $219.60 for interest in addition to the mortgage balance, and $94.22 for an FHA insurance premium paid by Respondent. In mitigation, Virginia E. Bell contends that she informed the sellers that the net cash required by the contract did not include tax, interest and insurance prorations, but this self-serving oral representation must be disregarded as contrary to the expressed terms of the contract and against the weight of the evidence. This respondent admits that the transaction which is the subject of this proceeding was not handled properly, and she asserts that it will not happen again.
Recommendation Upon Consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Virginia E. Bell be fined the sum of $500.00. It is further RECOMMENDED that the administrative Complaint against Virginia Bell Realty, Inc., be dismissed. THIS RECOMMENDED ORDER entered on this 16th day of September, 1980. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904)488-1779 Filed with the Clerk of the Division of Administrative Hearings this 16thday of September, 1980. COPIES FURNISHED: S. Ralph Fetner, Esquire 2009 Apalachee Parkway Tallahassee, Florida 32301 Virginia E. Bell 1927 U.S. Highway 17 Orange Park, Florida 32073 George E. Marcellus 64 Sleepy Hollow Road Middleburg, Florida 32068
The Issue The issue in this case is whether the license of Allen Franklin Meredith (Respondent) should be disciplined by the Department of Insurance and Treasurer (Petitioner) for allegedly allowing others to use his general lines insurance agent license, and to sign his name to insurance policy applications while Respondent was not present, as more particularly set forth in the Administrative Complaint issued herein on or about October 12, 1989.
Findings Of Fact At all times material hereto, Respondent has been licensed, and eligible for licensure, in the State of Florida as a life and health insurance agent, health insurance agent, and a general lines insurance agent. During April, 1989, Respondent approached Gordon Rowan, owner of Gordon Rowan Real Estate and Insurance in Winter Haven, Florida, to inquire whether Rowan would assist Respondent in obtaining a renewal of his general lines insurance agent license. Respondent was residing with his family in Georgia at the time, and told Rowan that his Florida general lines agent license was about to expire, and he needed to get licensed with a Florida company in order to apply for renewal. Rowan agreed to pay for Respondent's renewal fee, and for licensing him with a Florida Company doing business through Rowan's agency. On or about April 30, 1987, Rowan applied to National Insurance Associates for licensure on behalf of Respondent, and paid the applicable license fee. On or about May 20, 1987, Respondent was licensed with National Insurance Associates as a general lines insurance agent, and his Florida general lines license was renewed. Respondent admitted in an affidavit executed on November 16, 1987, that he did authorize Rowan to use his general lines license from the beginning of May to the end of June, 1987, while he was still living in Georgia. This authorization was in exchange for Rowan's assistance in obtaining Respondent's licensure with National Insurance Association, and renewal of his Florida license. However, at hearing Respondent testified that he never authorized Rowan to "use" his license, only to "place" his license with Rowan's agency. Rowan testified that Respondent had, in fact, told him that he could use his license and write business under it, including signing Respondent's name to policy applications, even though Respondent was not in the office and did not participate in these transactions. Rowan's assistant, May Satava, was present when Rowan and Respondent discussed their arrangement, and confirmed Rowan's testimony. Based upon the demeanor of the witnesses, as well as the affidavit executed by the Respondent shortly after the events involved in this matter, it is found that Respondent's uncorroborated testimony at hearing is not credible, while that of Rowan and Satava is found to be credible and consistent with statements made to Luis Rivera, the Petitioner's investigator, in October, 1987. Respondent did tell Rowan that he could use his general lines license to write business, and to sign his name to applications in exchange for Rowan's assistance in obtaining the renewal of his Florida general lines agent license. Working under Rowan's control and supervision, Satava did sign Respondent's name to approximately 48 policy applications from May through July, 1987, while Respondent actually signed only 3 additional policy applications during this period. Thus, the vast majority of business written under Respondent's license during this time was actually completed by Satava, an unlicensed person working under the control and supervision of Rowan, without any involvement of Respondent, pursuant to his agreement with Rowan that Rowan could use his license. Respondent did receive a commission payment in the amount of $200 from Rowan for June and July commissions. This represented Rowan's estimate of a reasonable payment to Respondent for the use of his license during this time when Satava signed Respondent's name to approximately 48 policy applications.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's general lines agent license, and eligibility for licensure, for a period of six months. DONE AND ENTERED this 9th Florida. day of March, 1990 in Tallahassee, DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1990. APPENDIX Rulings on the Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. 5-6. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Gordon T. Nicol, Esquire 412 Larson Building Tallahassee, FL 32399-0300 Allen Franklin Meredith 140 Flamingo Drive Auburndale, FL 33823 Don Dowdell, Esquire General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The ultimate issue for determination in this proceeding is whether Petitioner should withdraw Respondent's approval as an Eligible Surplus Lines Insurer in Florida for the reasons stated in the Order To Show Cause.
Findings Of Fact Petitioner is the administrative agency charged with responsibility for administering and enforcing the provisions of Chapter 626, Florida Statutes. Respondent is an alien insurer subject to the provisions of Section 626.918, Florida Statutes. Respondent is organized under the laws of Antigua and Barbuda, B.W.I. Respondent's port of entry is in Florida. Respondent is an unauthorized insurer in the state. An unauthorized insurer is not issued a certificate of authority or license to sell insurance in the state. An unauthorized insurer is made eligible to conduct business in the state pursuant to the Unauthorized Insurer Process Law in Sections 626.904 through 626.912, Florida Statutes. Respondent is eligible to sell surplus lines insurance pursuant to Sections 626.913 through 626.937, Florida Statutes. There are approximately 215 surplus lines insurers in the state. They do not participate in the Florida Guaranty Fund. /1 Surplus lines insurers are not eligible to sell life insurance, basic workers' compensation, or primary automobile liability insurance. Surplus lines insurers are eligible to write only those risks that a licensed carrier in Florida will not write. Respondent derives 100 percent of its business from the sale of insurance in Florida. Respondent's annual premium volume in 1990 was approximately $11.2 million. Of the total premiums received in 1990, approximately $7 million was attributable to physical damage premiums for private passenger automobiles and approximately $4.2 million was attributable to other liability insurance. Respondent filed an annual report for the fiscal year ending December 31, 1990, and quarterly reports for the quarters ending September 30, 1990, and March 31, 1991. Admitted assets on all three reports was comprised primarily of cash and common stock. The reported value of common stock exceeded 10 percent of the reported value of admitted assets in each report. The reported value of admitted assets in the annual report was $13,457,506. Cash and common stock were valued in the respective amounts of $3,490,701 and $8,385,365. The reported value of common stock was approximately 62 percent of the reported value of admitted assets. The reported value of admitted assets in the quarterly report ending September 30, 1990, was $10,450,539. /2 Cash and common stock were valued in the quarterly report for September 30, 1990, in the respective amounts of $1,365,129 and $5,811,711. The reported value of common stock was approximately 55.6 percent of the reported value of admitted assets. The reported value of admitted assets in the quarterly report ending March 31, 1991, was $10,022,106. 3/ Cash and common stock were valued in the quarterly report for March 31, 1991, in the respective amounts of $3,635,626 and $4,676,645. The reported value of common stock was approximately 46.6 percent of the reported value of admitted assets. The date of acquisition, cost, or market value of the common stock cannot be determined from the reports filed with Petitioner or from the other evidence presented during this proceeding. Petitioner would normally use the Securities Valuation Office as an indicator of the proper value of common stock listed in the financial reports. Respondent was requested to submit the particular stock for valuation and failed to do so. 4/ Respondent reported the value stock of subsidiaries and related corporations to be $403,000. The projected ratio of written premiums to surplus as to policyholders was 8.33 percent, or approximately 4.3 percent over the statutory limit imposed on authorized insurers. 5/ The actual ratios for the year, however, were in compliance with statutory limits. Respondent increased its capital by approximately $2.5 million dollars. The infusion of capital in that approximate amount brought Respondent into statutory compliance with respect to both subsidiary stock and net written premium ratios. Respondent is required by law to maintain a trust fund for the protection of its policy holders in an amount equal to the capital and surplus required of authorized insurers. Respondent established a trust fund in the amount of $1 million when it was approved as an eligible surplus lines insurer on August 11, 1988. The amount of the trust fund was equal to the capital and surplus required of authorized insurers at that time and satisfied all state requirements. The amount of capital and surplus required of authorized insurers has subsequently been increased to $1.150 million. Respondent was not charged in the Order To Show Cause with failing to maintain its trust fund in an amount of capital and surplus required of authorized insurers and that issue is irrelevant for the purposes of this proceeding. /6 The trust fund must consist of investments of the same general character and quality as are eligible investments for like funds of like domestic insurers. The trust fund maintained by Respondent is not required to be reflected as a line item in the financial statements contained in any of the reports required to be filed by Respondent and is not separately stated. There is no way to determine from the required financial reports what assets are contained in the trust fund or whether the trust fund assets consist entirely of cash, entirely of common stock, or some combination thereof. Admitted assets include cash on deposit in an amount sufficient to capitalize the trust fund Respondent is required to maintain. Cash on deposit increased $2,125,572 from September 30, 1990, to December 31, 1990, and $144,925 from December 30, 1990, to March 31, 1991. The value of common stock increased $2,573,654 from September 30, 1990, to December 30, 1990, and decreased $3,708,720 from December 30, 1990, to March 31, 1991.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent not guilty of the allegations in the Order To Show Cause and imposing no disciplinary action against Respondent's eligibility as an unauthorized alien surplus lines insurer. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st of January 1992. DANIEL MANRY 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 21st day of January 1992.
Conclusions THIS CAUSE, arising under Florida’s “Agricultural License and Bond Law” (Sections 604.15-604.34), Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action. On October 21, 2008, the Petitioner, Ricky A. Branch, III, a producer of agricultural products as defined by Section 604.15(9), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $31,296.18 for eggplants they sold to Respondent, a licensed dealer in agricultural products. Respondent’s license for the time in question was supported by a surety bond required by Section 604.20, Florida Statutes, written by Fidelity and Deposit Company of Maryland in the amount of $100,000. On January 7, 2009, a Notice of Filing of ‘an Amended Claim was mailed to Respondent and Co-Respondent. On January 27, 2009, the Respondent filed an ANSWER OF RESPONDENT with attachments wherein they denied the claim as being valid, admitted no indebtedness and requested a hearing. Therefore, this matter was referred to the Division of Administrative Hearings (DOAH) for an administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. An administrative hearing was scheduled in this matter for April 17, 2009. Attached to the NOTICE OF HEARING was an ORDER OF PRE-HEARING INSTRUCTIONS with instructions for the parties to follow prior to and at the hearing. On March 30, 2009, the Respondent filed a ' MOTION TO CONTINUE FINAL HEARING. The Administrative Law Judge (“Judge”) issued an ORDER GRANTING CONTINUANCE (“Order”) on April 3, 2009. In the Judge’s Order, he asked the parties to confer and advise him on the status of the matter among other things. An ORDER RE-SCHEDULING. HEARING was issued on April 16, 2009 and a new hearing date was set for June 9, 2009. Prior to the hearing, on June 5, 2009, the Respondent filed a RESPONDENT’S MOTION TO DISMISS claiming their efforts to contact the Claimant have been futile. Additionally, Respondent asserts that Claimant failed to comply with the ORDER GRANTING CONTINUANCE, the ORDER RE-SCHEDULING HEARING and the ORDER OF PRE-HEARING INSTRUCTIONS issued by DOAH. For the aforesaid reasons, the Respondent feels the Claimant’s claim should be denied and the claim dismissed with prejudice. On June 16, 2009, the Judge issued a RECOMMENDED ORDER OF DISMISSAL, a copy of which is attached hereto as EXHIBIT “A”, to which neither party filed written exceptions with this Department. . Upon the consideration of the foregoing and being otherwise fully advised in the premises, it is ORDERED: Based on the fact that the Claimant failed to appear at the final hearing with DOAH on June 9, 2009 and failed to meet his burden of proof in presenting evidence in support of his claim, the Department adopts the Judge’s RECOMMENDED ORDER OF DISMISSAL. The Department hereby dismisses the captioned claim and the file is closed without further action. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to Section 120.68, Florida Statutes (2002) and Rule 9.110, Florida Rules of Appellate Procedure (2003). Review proceedings must be instituted by filing a petition or notice of appeal with the Agency Clerk, 5" Floor, Mayo Building, Tallahassee, FL 32399-0800. A copy of the petition for review or notice of appeal, accompanied by the filing fees prescribed by law must also be filed with the appropriate District Court of Appeal within thirty (30) days of the date this Final Ondet yas filed with the Agency Clerk. DONE AND ORDERED this77_ day of , 2009. ES H. BRONSON TERRY/L. RHODES Assi Commissioner of Agriculture Ke Filed with Agency Clerk this? _ day of , 2009. (pL Vb AM Agency Clerk COPIES FURNISHED TO: Judge Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 2604 4626) Mr. Gary Wishnatzki, Registered Agent Wishnatzki, Inc., d/b/a Wishnatzki Farms 100 Stearn Avenue Plant City, FL 33566 (Certified Receipt No. 7160 3901 9848 2605 1259) Mr. Ricky A. Branch, IIT Post Office Box 42 Webster, FL 33597 (Certified Receipt No. 7160 3901 9848 2605 1266) Ms. Kathy Alves, Claims Specialist Fidelity & Deposit Company of Maryland Post Office Box 87 , Baltimore, MD 21203-0087 (Certified Receipt No. 7160 3901 9848 2605 1273) (Claim No. 6380046897) Thomas F. Munro, Esquire FOLEY & LARDNER LLP 100 North Tampa Street, Suite 2700 Tampa, FL 33602 (Certified Receipt No. 7160 3901 9848 2605 1280) . Mr. Bedford Wilder General Counsel Staff Mayo Building, M-11 Tallahassee, Florida 32399-0800 Ms. Stephenie Butscher and Mr. Mark Moritz, Field Representatives
The Issue Whether the Petitioner's application for licensure as a nonresident general lines insurance agent and a nonresident surplus lines insurance agent should be approved or denied.
Findings Of Fact On August 4, 2006, the Petitioner filed an application for licensure as a "09-20" nonresident general lines insurance agent and a "91-20" nonresident surplus lines insurance agent. By Notice of Denial dated December 11, 2006, the Respondent denied the Petitioner's application for licensure. The Notice of Denial, in material part, sets forth the factual basis for the denial as follows: You, Brian D. Boneck, at all times pertinent to the facts set below, were licensed in this state as a resident general lines insurance agent. You, Brian D. Boneck, at all times pertinent to the facts set forth below, were the owner of Brooke Agency Services of Bradenton, Florida. You, Brian D. Boneck, at all times pertinent to the facts set forth below, were the President and owner of Sierra Insurance Underwriters, Inc. On or about the last week of December, 2005, Christopher Waters of Port Charlotte, Florida, called the Brooke Agency in Bradenton, Florida, and spoke to you, Brian D. Boneck, regarding the renewal of a commercial general liability insurance policy for Waters Developers, LLC. On or about, January 4, 2006, Mr. Waters delivered a check to you in the amount of $809.30, payable to Sierra Underwriters. This check was to pay the down payment on the premium for renewal of Mr. Waters' general liability policy. Sometime in April 2006, Mr. Waters was notified by Mid-Continental [sic] Casualty Company that the policy was cancelled for non-payment of premium. You, Brian D. Boneck, failed to submit the money paid to you by Mr. Waters to the insurer, Mid-Continental [sic] Casualty Company, or to the insurer's general agent, Florida Homebuilders Insurance Agency, Inc. You, Brian D. Boneck, misappropriated the down payment made to you by Mr. Waters. To this date, you have not returned the money to Mr. Waters or paid the money to Mid- Continental [sic] Casualty Company, or to the Florida Homebuilders Insurance Agency, Inc. Your ownership of Brooke Agency Services of Bradenton, Florida, was through a franchise agreement with Brooke Franchise Corporation. Brook Insurance and Financial Services is a subsidiary corporation that manages business for Brooke Franchise Corporation. Pursuant to this relationship, you, Brian D. Boneck, were required to pay a share of the commissions received by Brooke Agency Service of Bradenton to Brooke Insurance and Financial Services and were required to provide information on insurance sales to Brooke Insurance and Financial Services. According to a sworn affidavit by Marian Ann Eupizi, who was formerly employed by you at Brooke Agency Services, you, Brian D. Boneck, also misappropriated premium payments made to you by other customers whose insurance was written by you or other agents of Brooke Agency Services of Bradenton, Florida, through the Florida Homebuilders Insurance Agency. You, Brian D. Boneck, did this by having customers write premium checks payable to your other company, Sierra Insurance Underwriters, Inc. By doing so, Brooke Insurance and Financial Services was unaware of your actions and you also misappropriated commissions owed to them. Also according to Ms. Eupizi, you, Brian D. Boneck, in mid- 2005, misappropriated a refund check issued for a policy on Callis Construction in the amount of approximately $1200. The Respondent offered no reliable evidence at the hearing to support the allegations which served as the factual basis for the denial. As to the allegation that Christopher Waters delivered the check to the Petitioner, the Respondent offered only the sworn affidavit of Mr. Waters and various attachments in support of the allegation. At the hearing, the Petitioner testified that he did not accept premium checks from customers and that the office staff accepted and processed premium checks. The Respondent offered no credible evidence to the contrary, and, for purposes of this Order, the Petitioner's testimony is credited. The Petitioner testified that the Waters account was one of 35 transferred to the corporate franchisor when the Petitioner sold the agency back to the Brooke Agency Services. Negotiations for the sale occurred over a period of time and concluded with a bill of sale executed in August 2006. Although the Petitioner's testimony regarding the chronology of the sale was poorly defined, there was no evidence that the Waters account was not included within those transferred. As to the allegation that the premium was misappropriated and not forwarded to Mid-Continent Casualty Insurance Company, the Respondent offered a copy of a sworn statement wherein a Mid-Continent Casualty representative alleged that the company's investigation indicated that the Waters premium was never forwarded through the Brook Agency to the Florida Homebuilders Insurance Agency, which initially issued and then ultimately cancelled the policy. Additionally, the Respondent offered a copy of an email to the Respondent's investigator from a representative of Florida Home Builders Insurance, Inc., wherein the representative restates information provided to the email writer from unidentified representatives of the Brooke Agency and AmGro Premium Finance Company (with whom the remaining premium due from Mr. Waters had been financed). The Respondent also offered banking records apparently provided in response to a subpoena that indicate the Waters check was deposited into the Sierra Insurance Underwriters Account, to whom the check was made payable. The Respondent offered no credible evidence that the deposit of the Waters check into the Sierra account was improper. As to the allegation that no money had been refunded to Mr. Waters as of the December 11, 2006, Notice of Denial, the Petitioner testified that the money was refunded by a check to Mr. Waters and had a check to Waters Developers from Sierra Underwriters, Inc., dated July 24, 2006, for $1,471 admitted into evidence. It is unclear why the refund amount exceeded the initial premium amount, but there is no evidence contrary to the Petitioner's testimony that the check was issued as a premium refund. As to the allegations related to the ownership structure of the Petitioner's agency, the Respondent offered no credible evidence regarding the interrelationship between the Brooke entities or how the Brooke entities operated with the Petitioner’s Sierra Underwriters, Inc. Regarding the allegations attributed to sworn affidavit of Marian Ann Eupizi, the Petitioner testified that Ms. Eupizi was a customer service representative who was not involved in the fiscal operation of the agency and whom he had fired for falsification of documents. There was no credible evidence contrary to the Petitioner's testimony, and it is credited. Ms. Eupizi’s affidavit has been disregarded in its entirety. There was no credible evidence to support the assertion in the affidavit that the Petitioner misappropriated premium payments from other customers, misappropriated commissions due to Brooke Insurance and Financial Services, or misappropriated a refund check to an entity identified as Callis Construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order granting the application of Brian D. Boneck for licensure as a nonresident general lines insurance agent and a nonresident surplus lines insurance agent. DONE AND ENTERED this 18th day of September, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of September, 2007. COPIES FURNISHED: Brian D. Boneck 70 East Horizon Ridge Parkway, No. 140 Henderson, Nevada 89002 William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol Plaza Level 11 Tallahassee, Florida 32399-0307
