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 August 26, 2009, the Petitioner, Dixie Growers, Inc., an Agent for producers of Florida agricultural products as defined by Section 604.15(10), Florida Statutes, timely filed an administrative claim pursuant to Section 604.21, Florida Statutes, to collect $176,869.20 (including the $50 claim filing fee) for strawberries 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 Lincoln General Insurance Company in the amount of $100,000. On September 2, 2009, a Notice of Filing of an Amended Claim was mailed to Respondent and Co-Respondent. The September 2, 2009 certified claim mailing to the Respondent was returned by the United States postal service on October 5, 2009 marked “UNCLAIMED”. A second certified mailing was sent by the Department to the Respondent at another address of record on October 9, 2009 and it was received by the Respondent on October 23, 2009. On November 10, 2009, the Respondent filed an ANSWER OF RESPONDENT with an attachment to the Department and requested a hearing. Accordingly, this case was referred to the Division of Administrative Hearings (“DOAH”) for a administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. DOAH issued a NOTICE OF HEARING on December 2, 2009 for a hearing to be held on February 25, 2010. The hearing was held with DOAH on February 25, 2010 and the Administrative Law Judge (the “ALJ”) entered her RECOMMENDED ORDER (“R.O.”) on March 24, 2010, 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: The Department adopts the ALJ’s R.O. in toto including the following technical corrections to the R.O.: 1. In the caption on page one (1) of the R.O. the Respondent is shown as America Growers, Inc. and it should read American Growers, Inc. 2. On page one (1), paragraph (1) of the R.O., it states Counsel for Respondent, the witness and court reporter appeared ... . It should read Counsel for Petitioner, the witness and court reporter appeared ... . 3. On page two (2) under PRELIMINARY STATEMENT, paragraph (2), it states Petitioner filed a response on the Department’s form titled, .... It should read Respondent filed a response on the Department’s form titled ... . 4. On page three (3) under FINDINGS OF FACT, paragraph number one (1), it states; Petitioner, Dixie Growers, Inc., is a producer of agricultural products in Florida, i.e.., strawberries. It should read; Petitioner, Dixie Growers, Inc., is an Agent for the Producer(s) of agricultural products in Florida, i.e., strawberries. 5. On page five (5), paragraph eleven (11), under CONCLUSIONS OF LAW, it states; Petitioner is a “producer” of agricultural products as defined in subsection 604. 15(9), Florida Statutes. It should read; Petitioner is a “producer’s agent” for the producer(s) of agricultural products as defined in subsection 604.15(10), Florida Statutes. The ALJ’s recommendation that the Respondent, American Growers, Inc., pay Petitioner, $176,819.20 and the $50 filing fee is hereby adopted. For purposes of this Final Order consistent with the requirements of Sections 604.21(7) and (8), Florida Statutes, the ALJ’s recommendation is modified to include that payment shall be made within fifteen (15) days after this Final Order is adopted. In the event Respondent fails to pay Petitioner $176,869.20 within fifteen (15) days of the Final Order, Lincoln General Insurance Company, as Surety for Respondent, is hereby ordered to provide payment under the conditions and provisions of the Bond to CHARLES H. BRONSON, COMMISSIONER OF AGRICULTURE AND CONSUMER SERVICES, as Obligee on the Bond. The Department will notify the Surety in the event it (the Surety) is required to pay. This Order is final and effective on the date filed with the Agency Clerk of the Department. 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 Order was filed with the Agency Clerk. = DONE AND ORDERED this27_ day of Frrnach , 2010. TERRY L.’RHODES Assistant Commissioner of Agriculture WA. Filed with Agency Clerk this”? _ day of Bel , 2010. Agency Clerk COPIES FURNISHED TO: Judge Carolyn S. Holifield Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Certified Receipt No. 7160 3901 9848 8028 7649) Mr. Glenn C. Thomason, Registered Agent American Growers, Inc. P. O. Box 1207 Loxahatchee, FL 33470 (Certified Receipt No. 7160 3901 9848 8028 7656) Ms. Rene Herder, Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Blvd., Suite 155 Tampa, FL 33634 (Certified Receipt No. 7160 3901 9848 8028 7663) Mr. John Northrop, Surety Bond Claims Lincoln General Insurance Company 4902 Eisenhower Blvd., Suite 155 Tampa, FL 33634 (Certified Receipt No. 7160 3901 9848 8028 9230) Gregg E. Hutt, Attorney for Petitioner Dixie Growers, Inc. TRENAM, KEMKER, SCHARF, BARKIN, FRYE, O’NEILL & MULLIS, P.A. 101 East Kennedy Boulevard, Suite 2700 P. O. Box 1102 Tampa, FL 33601-1102 (Certified Receipt No. 7160 3901 9848 8028 9247) Ms. Linda Terry Lawton, Vice President Dixie Growers, Inc. P. O. Box 1686 Plant City, FL 33564-1686 (Certified Receipt No. 7160 3901 9848 8028 9254) Steven Hall, Attorney Florida Department of Agriculture and Consumer Services, Suite 520 Mayo Building, M-11 Tallahassee, FL 32399-0800 Mr. Mark Moritz and Mr. Brad Robson, Field Representatives
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged statutory violations set forth in the Administrative Complaint.
Findings Of Fact Respondent is currently licensed in this state as a life insurance agent, a health insurance agent, and a life and health insurance agent. At all times relevant to the dates and occurrences set forth in the Administrative Complaint, Respondent was licensed in this state as a life insurance agent, a health insurance agent, and a life and health insurance agent. On December 9, 1991, the court entered its Order of Liquidation, Injunction and Notice of Automatic Stay in State ex.rel. Department of Insurance v. Great Oaks Casualty Insurance Company, et al., Case No. 91-4746, 2nd Judicial Circuit in and for Leon County, Florida. On October 12, 1994, the Receiver filed its Petition for Summary Order Directing Immediate Delivery of Funds in Case No. 91-4746 (referenced in paragraph 3, above), against Respondent, Hugo Oliva, and Inter-American Insurance Agency, Inc., which sought recovery of unearned commissions. On January 6, 1995, a final judgment was entered against Respondent and Inter-American Insurance Agency, Inc., jointly and severally, to pay the principle sum of $4,352.32, accrued interest through December 23, 1994, in the amount of $1,592.59, plus $300.00 in attorney's fees pursuant to Section 631.154, Florida Statutes, for a total sum of $6,244.91. Respondent did not pay the judgment referred to in paragraph five, within thirty days of the date of entry of the judgment. Inter-American Insurance Agency, Inc., did not pay the judgment referred to in paragraph 5, within thirty days of the date of entry of the judgment. As of the date of the hearing, no payment had been made toward the satisfaction of the judgment. Inter-American Insurance Agency, Inc., was a Florida corporation which was incorporated by Jose Bello and Jose Calderon on January 28, 1991. 10 The initial board of directors of Inter-American Insurance Agency, Inc., consisted of: Jose Bello, president; Jose Calderon, vice-president; and Hugo Oliva, 2nd vice-president. Neither Jose Bello nor Jose Calderon was ever licensed in the State of Florida as an insurance agent. Respondent was the only person licensed by the Department to transact insurance at Inter-American Insurance Agency, Inc. Inter-American Insurance Agency, Inc., and Flagship Insurance Underwriters, Inc. ("Flagship"), entered in a brokering agent's agreement dated March 8, 1991. Respondent acknowledged the existence of agreements between himself and Great Oaks Casualty Insurance Company and Flagship Insurance Underwriters, Inc. In conjunction with the brokering agent's agreement, someone completed Flagship's "agency questionnaire" form regarding the Inter-American Insurance Agency, Inc. The Flagship agency questionnaire for Inter-American Insurance Agency, Inc., is accurate in the names of the "principals, partners or corporate officers," and in the particulars regarding Respondent. Flagship Underwriters, Inc., was the managing general agent for Great Oaks Casualty Insurance Company. The Department's Receivers took control of Great Oaks Insurance Casualty Company's records, including insurance policy files that had been submitted by Inter-American Insurance Agency, Inc. In order for Inter-American Insurance Agency, Inc., to bind insurance coverage with Great Oaks Casualty Insurance Company through Flagship Insurance Underwriters, Inc., the agent would call the company and obtain a "telephone binder number" which was to be written on the application form in the space provided. When binding insurance coverage, a "brokering agent's register number" was assigned by Great Oaks Casualty Insurance Company. The "brokering agent's register number" was placed on the application for insurance as well as in the binder book (brokering agent's register) that was maintained at Inter-American Insurance Agency, Inc. The "brokering agent's register" entries were required to be entered sequentially. Respondent never saw any entries in the "brokering agent's register" that were entered by persons other than himself. Despite over thirty days actual notice of the entry of the Final Judgment in Case No. 91-4746, in the 2nd Judicial Circuit in and for Leon County, Florida, Respondent did not seek to have the Final Judgment set aside or nullified in any way, nor did Respondent make any payment toward satisfaction of the Final Judgment. Respondent admitted that his actual signature appears on at least ten applications submitted to Great Oaks Casualty Insurance Company. Respondent signed at least ten applications submitted to Great Oaks Casualty Insurance Company where coverage was bound on dates ranging from March 23, 1991, through October 25, 1991, and with broker's register numbers ranging from 91-0031 to 91-0522. Since broker's register numbers were entered sequentially, even if other persons at Inter-American Insurance Agency, Inc., did not make register entries, Respondent would have made entries (bound coverage) for 491 policies during the period March 23, 1991, through October 25, 1991. Of the applications that Respondent denied signing, the coverage was bound during the period of April 1, 1991, through October 25, 1991, and with broker's register numbers ranging from 91-0047 through 91-0590 (543 entries apart).
Recommendation Based on all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case finding that the Respondent committed the acts alleged in paragraphs 1 through 8 of the Administrative Complaint and, on the basis of those findings, revoking the Respondent's licenses. DONE AND ENTERED this 28th day of February 1996 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 28th day of February 1996. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner Paragraphs 1 through 16: Accepted. Paragraph 17: Rejected as subordinate and unnecessary details. Paragraphs 18 and 19: Accepted. Paragraph 20: Rejected as subordinate and unnecessary details and as unnecessary commentary regarding evidentiary details. Paragraph 21: Accepted Paragraph 22: Rejected as summaries of testimony rather than proposed findings of fact; also rejected as subordinate and unnecessary details. Paragraphs 23 through 26: Accepted. Paragraph 27: Rejected as subordinate and unnecessary details. Paragraphs 28 and 29: Accepted in substance, but with some modifications in the interest of clarity. Paragraphs 30 and 33: Accepted. Paragraphs 34 through 36: Rejected as subordinate and unnecessary details. Paragraph 37: Rejected as irrelevant, because the Respondent cannot be found guilty of or be subjected to penalties as a result of conduct which was not charged in the Administrative Complaint. See, Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So.2d 312 (Fla. 1st DCA 1983); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324 (Fla. 1st DCA 1985). Proposed findings submitted by Respondent (None were submitted.) COPIES FURNISHED: Ross S. Burnaman, Esquire Department of Insurance and Treasurer Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mr. Hugo Oliva 14383 Southwest 38th Street Miami, Florida 33175 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner, General Counsel Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue By these consolidated actions, the Petitioners seek to recover attorney's fees and costs as alleged prevailing small business parties under authority set forth in Section 57.111, Florida Statutes.
Findings Of Fact In accordance with Chapter 380, Florida Statutes, the Department of Community Affairs (Department), at times relevant to this inquiry, has maintained the duty and responsibility to enforce and administer that law. Following entry of the subject Development Order on March 23, 1976, Leon County, Florida, became responsible for administering that Development Order in accordance with Chapter 380, Florida Statutes. The Development Order had been issued upon application by Killearn Properties, Inc., the principal developer. Through property conveyance, the principals within Kinhega Landing and Kinhega Oaks purchased parcels within the geographical boundaries of the development of regional impact (DRI) authorized by Chapter 380, Florida Statutes, and the subject of the Development Order. The property transactions pertaining to the parcels purchased by the Kinhega landing and Kinhega Oaks groups, when recorded in the property records for Leon County, Florida, did not reflect the existence of the Development Order, nor did any history of the chain of title indicate that the parcels were within the DRI. The record does not reflect that the developer, Killearn Properties, Inc., and other persons subsequently involved with the conveyance of the subject parcels purchased by the Kinhega Landing and Kinhega Oaks principals made the Kinhega Landing and Kinhega Oaks groups aware that the parcels being purchased were within the DRI. The Development Order contained a requirement that the DRI be served by a wastewater treatment facility from the inception. The Development Order did not allow the use of septic tanks for individual lots as an interim measure pending the availability of wastewater treatment service through a central plant. Contrary to the requirements set forth in the Development Order, certain restrictive covenants recorded within the public records of Leon County, Florida, pertaining to the parcels purchased by the Kinhega Landing and Kinhega Oaks groups indicated that septic tanks could be utilized. The Kinhega Landing and Kinhega Oaks groups were mindful of the restrictive covenants which allowed the use of septic tanks. This knowledge was gained through an examination of the public records of Leon County, Florida. Moreover, in seeking preliminary plats, the principals for Kinhega Landing and Kinhega Oaks were subsequently issued preliminary plats, pursuant to conditions which allowed the use of septic tanks for individual homeowners and lots pending the availability of wastewater treatment through a central service. Notwithstanding the fact that Leon County was responsible for administering the Development Order and acting consistent with its terms, the Leon County employees who issued the preliminary plats knowingly acted contrary to the terms set forth in the Development Order by allowing septic tanks, instead of requiring the provision of wastewater treatment through central service. Neither did the Leon County employees apprise the Kinhega Landing and Kinhega Oaks groups that the Development Order existed, and thereby allow those groups to make their own determination concerning the consistency of the preliminary plats when measured against the requirements set forth in the Development Order. Chapter 380, Florida Statutes, as it existed when the Development Order was issued did not mandate that the Development Order be recorded in the public records of Leon County, Florida. The amendments which were made to Chapter 380, Florida Statutes, following the date upon which the Development Order was entered did not retroactively mandate the need to record the existence of the Development Order in the public records of Leon County, Florida. That fact taken together with the inability to ascertain the existence of the Development Order through property records related to the specific parcels purchased by the Kinhega Landing and Kinhega Oaks groups, the failure by the initial developer, Killearn Properties, Inc., and others who had been involved with the subject parcels to advise the Kinhega Landing and Kinhega Oaks groups that the parcels being purchased were subject to a Development Order, and the failure by Leon County officials to advise the Kinhega Landing and Kinhega Oaks principals that the parcels were subject to a Development Order, establishes that the Kinhega Landing and Kinhega Oaks groups were without actual or constructive notice of the requirement to provide central wastewater service. To the contrary, Leon County employees provided advice that specifically violated the terms set forth in the Development Order, in a setting in which the Leon County officials were charged with the responsibility to act consistent with the terms set forth in the Development Order. This leads to the conclusion that the Kinhega Landing and Kinhega Oaks groups could not reasonably have ascertained that the Development Order existed as a means of avoiding actions that were inconsistent with the Development Order. This finding also takes into account that the property records reflecting restrictive covenants, as they would inform the public, allowed the use of septic tanks and coincided with the development permission given by the planning officials within Leon County. When investigating and deciding to bring the Notice of Violation, the Department spent considerable time in discussion with the Killearn Properties, Inc., principals. It had no contact with the Kinhega Landing and Kinhega Oaks principals. The Department also met with Leon County concerning the County's administration of the terms of the Development Order. The Department never asked anyone employed by Leon County whether County employees had told the Kinhega Landing and Kinhega Oaks groups that a Development Order had been entered which limited the manner in which development could be pursued, to include the inability to use septic tanks on individual homeowner lots. Neither does it appear that the Department interrogated the principals for Killearn Properties, Inc. concerning whether those individuals had told the principals at Kinhega Landing and Kinhega Oaks that the parcels purchased by the latter groups were under restrictions and were subject to requirements set forth in the Development Order. Nor does it appear that the Department interrogated anyone else concerning advice to these groups about the existence of the Development Order. The Department was aware that the preliminary plats for Kinhega Landing and Kinhega Oaks allowed the use of septic tanks until central sewer service became available and held the opinion that this arrangement violated the requirement to provide wastewater treatment service from a central location from the inception of the DRI. Although the Department has stated that it decided to name Kinhega Landing and Kinhega Oaks in the Notice of Violation to bring before the administrative tribunal all parties necessary for an adjudication of rights and remedies in the overall DRI, in fact, the Department did not name all parties who had property rights subject to the DRI when seeking enforcement through the Notice of Violation. Moreover, it did not occur to the Department that it would be advisable to inquire of the principals within Kinhega Landing and Kinhega Oaks concerning their knowledge of the existence of the Development Order. As stated, the Department had no realization concerning whether the County had advised the principals within Kinhega Landing and Kinhega Oaks regarding the existence of the Development Order when those entities applied for preliminary plats. The Department, when deciding to bring the Notice of Violation against Kinhega Landing and Kinhega Oaks, made note of the conditions associated with the issuance of the preliminary plats wherein it was anticipated that the individual homeowners would need to tie into central sewer service when it was made available. The Department then assumed that it was common knowledge in the development community that the property encompassed within the DRI, to include Kinhega Landing and Kinhega Oaks parcels, was under a Development Order. In addition to looking at the Leon County plat records concerning the Kinhega Landing and Kinhega Oaks parcels, which reflected the permission to use septic tanks subject to availability of central wastewater service, the Department did "some title work" related to the Kinhega Landing and Kinhega Oaks parcels. None of the activities can be seen to educate the Department as to the existence of a Development Order which knowledge could be imputed to Kinhega Landing and Kinhega Oaks principals. The Department was aware that the Development Order had been issued in 1976 at a time when there was no requirement to record the Development Order in the public records of Leon County, Florida. Further, the Department knew that the Development Order had not been recorded in the public records of Leon County, Florida. At the point in time where the decision was being reached to name Kinhega Landing and Kinhega Oaks in the Notice of Violation, the Department assumed, without rational basis, that Leon County affirmatively stated to Kinhega Landing and Kinhega Oaks that the parcels held by those entities were within the DRI. At hearing, concerning the request to be reimbursed for attorney's fees and costs, counsel for the Department who was principally responsible for the case involving the Notice of Violation was uncertain whether the Department of Community Affairs had inquired of Leon County concerning whether Leon County had made Kinhega Landing aware of the existence of the Development Order. Moreover, the Department of Community Affairs assumed that because the Development Order did not allow the use of septic tanks and that the preliminary plats allowed the use of septic tanks on an interim basis, this was seen as evidence that Leon County had brought the existence of the Development Order to the attention of Kinhega Landing and Kinhega Oaks. Such assumption lacked any rational basis. The present Petitioners learned of the existence of the Development Order when served with the Notice of Violation. The Department of Community Affairs became aware that the Kinhega Landing and Kinhega Oaks groups did not know of the Development Order after the Department of Community Affairs had filed the Notice of Violation, and notwithstanding that knowledge continued to pursue the underlying action. When deciding to file the Notice of Violation against Kinhega Landing and Kinhega Oaks, the Department was not aware of any specific legal authority which would support the conclusion that purchasers without notice of the existence of the Development Order would nonetheless be bound by the Development Order and could not defend themselves against acts taken contrary to the Development Order, such as installation of septic tanks in a setting in which the Development Order only allowed wastewater treatment through a central service. Without regard for specific precedent concerning the legal question of whether bona fide purchasers for value, purchasers without knowledge of the Development Order, could defend their actions which were inconsistent with the Development Order, the Department proceeded with its Notice of Violation because it declined to resolve the question of whether those purchasers would nonetheless be held to comply with the Development Order. The Kinhega Landing and Kinhega Oaks principals are prevailing same business parties whose respective expenses in defending the notice of violation exceed $15,000.00. In summary, the Department of Community Affairs was aware that Kinhega Landing and Kinhega Oaks principals were not subject to constructive notice concerning the existence of the Development Order when charging Kinhega Landing and Kinhega Oaks principals with the notice of violation. The Department of Community Affairs failed to establish whether the Kinhega Landing and Kinhega Oaks principals had actual knowledge of the existence of the Development Order prior to bringing the Notice of Violation against those parties and the assumptions which the Department of Community Affairs made concerning actual notice by Kinhega Landing and Kinhega Oaks principals were not reasonable assumptions, especially when relying on Leon County to impart knowledge in a setting in which the Department of Community Affairs had concluded that Leon County had violated the Development Order in its own right, when allowing septic tanks to be used in lieu of wastewater treatment through central service. Misfeasance by Leon County in relation to that topic did not create the proper inference that Kinhega Landing and Kinhega Oaks principals were willing participants in that course of conduct. Kinhega Landing and Kinhega Oaks principals were not aware of the existence of the Development Order prior to being charged with the Notice of Violation.
The Issue As to DOAH Case No. 03-1447PL, whether the licensure as an insurance agent in Florida held by Respondent Jerrod Keith Zelanka (Jerrod Zelanka) should be disciplined based on the allegations of the Administrative Complaint filed against him and, if so, the extent of such discipline. As to DOAH Case No. 03-1448PL, whether the licensure as an insurance agent in Florida held by Respondent Fredric Stuart Zelanka (Fredric Zelanka) should be disciplined based on the allegations of the Administrative Complaint filed against him and, if so, the extent of such discipline.
Findings Of Fact Jerrod Zelanka is currently eligible for licensure and licensed in Florida as a general lines insurance agent. Fredric Zelanka is currently eligible for licensure and licensed in Florida as a general lines insurance agent. American Insurance Management, Inc. (AIM) was incorporated as a Florida corporation on December 16, 1994. AIM was dissolved as a corporation on August 23, 1996. At all times pertinent to this proceeding, Accredited Insurance Group, Inc. (AIG) was an active Florida corporation and Fredric Zelanka was a director and officer of that corporation. At all times pertinent to this proceeding, American Professional Insurance Services, Inc. (APIS) was an active Florida corporation and Jerrod Zelanka was a director and officer of that corporation. There was no evidence as to any formal relationship between AIG (Fredric Zelanka's corporation) and APIS (Jerrod Zelanka's corporation), although the two corporations shared the same offices. At all times pertinent to this proceeding, Explorer was an insurance company doing business in Florida. On May 13, 1999, Explorer, as insurer, entered into an agency agreement with "Accreditted (sic) Insurance Group, Inc.: DBA American Insurance Management," as agent (the Agency Agreement).2 Fredric Zelanka signed the Agency Agreement on behalf of the agent. At all times pertinent to this proceeding, Fredric Zelanka was the agent of record with Explorer. The Agency Agreement authorized the agent to bind policies of insurance on behalf of Explorer. Paragraph 4 of the Agency Agreement was as follows: 4. The Company (Explorer) authorizes the Agent to collect, receive and receipt for premiums on insurance submitted by the Agent to, and accepted by, the Company. All premiums and return premiums received by the Agent either before or after the termination of this Agreement shall be held by the Agent in a fiduciary capacity as trustee for the Company until delivered to the Company, or in the case of return premiums, to the insured. Paragraph 5.B.(2) of the Agency Agreement required the agent to send to Explorer the required premium down payment or payment in full for the policy within five days of binding an insurance policy. Explorer received nine checks drawn on an account held by APIS at the MetroBank branch office located in Lighthouse Point, Florida. The first of these nine checks was dated August 9, 2001, and the last was dated September 14, 2001. Jerrod Zelanka signed eight of these checks. Each check represented the total or partial payment of premium for a policy of insurance bound pursuant to the Agency Agreement. MetroBank dishonored each of these checks because the check was not properly signed (one check), the account did not have sufficient funds to pay the check (three checks), the funds were uncollected3 (one check), or the account was closed when the checks were presented for payment (four checks). Explorer received ten checks drawn on an account held by APIS at the BankAtlantic branch office located in Deerfield Beach, Florida. The first of these ten checks was dated September 24, 2001, and the last was dated October 28, 2001. Jerrod Zelanka signed each check. Each check represented the total or partial payment of premium for a policy of insurance bound pursuant to the Agency Agreement. BankAtlantic dishonored each check because the account did not have sufficient funds to pay the check when it was presented. The 19 dishonored checks totaled $5,597.00. Fredric Zelanka was not a signatory on the account at MetroBank or on the account at BankAtlantic. Although the checks remitted by APIS to Explorer were dishonored, Explorer issued the policies of insurance that had been bound pursuant to the Agency Agreement. After the checks were dishonored, Explorer demanded payment of the premiums from Respondents. Explorer thereafter terminated the Agency Agreement because Respondents failed to remit the premiums to Explorer. After the termination of the Agency Agreement, Explorer withheld from Respondents commissions that had been earned pursuant to the Agency Agreement, which reduced the debt Respondents owed Explorer. On April 17, 2003, Jerrod Zelanka, on behalf of American Insurance Management, agreed that it owed Explorer the sum of $1,699.11 and agreed to a payment schedule. At the time of the final hearing, Respondents owed Explorer approximately $1,600.00. Fredric Zelanka was hospitalized with health problems and unable to work when the checks at issue in this proceeding were written by Jerrod Zelanka.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Jerrod Zelanka guilty of violating the provisions of Sections 626.561(1) and 626.611(7), (9), and (10), Florida Statutes. As penalty for these violations, it is RECOMMENDED that Petitioner suspend Jerrod Zelanka's insurance licenses and eligibility for licensure for a period of nine months. It is FURTHER RECOMMENDED that Petitioner enter a final order finding Fredric Zelanka guilty of violating the provisions of Sections 626.561(1), 626.611(10), and 626.621(4), Florida Statutes. As penalty for these violations, it is recommended that Petitioner suspend Fredric Zelanka's insurance licenses and eligibility for licensure for a period of three months. DONE AND ENTERED this 15th day of August, 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 15th day of August, 2003.
The Issue The issue for determination at formal hearing was whether proposed amendments to Rule 4J-2.002, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
Findings Of Fact An admitted or authorized insurance company is a foreign insurance company which is licensed to do business in its home state and another state which is Florida in the case at hand, or is a domestic insurance company licensed to do business in its home state, here Florida. Examples of such insurance companies are Hartford, Travelers and USF&G. A non-admitted or surplus lines insurance company writes coverage for risks which are not normally written by admitted companies. An example of such a company is Lloyd's of London. A risk is eligible to be placed with a surplus lines insurer if, after diligent effort, the full amount of insurance required to cover the risk cannot be placed with admitted insurers, if the rate offered is not less than or broader than that offered by the admitted insurers, and if the policy offered is not more favorable to the insurer than those offered by admitted insurers which actually write similar coverages on similar risks. The surplus lines' premium is usually higher than the admitted insurer's premium. If an insurance agent is unable to place a risk with either an admitted insurer or a surplus lines insurer, the agent can certify the inability to the Market Assistance Plan (MAP) and request assistance from MAP in placing the risk, which has access to all admitted and surplus lines brokers doing business in Florida. MAP was legislatively created to assist those who are unable to obtain property or casualty insurance and is comprised of all insurers licensed to do business in Florida. The Florida Legislature also created the Florida Property and Casualty Joint Underwriting Association (FPCJUA) to provide coverage for certain risks when the risk cannot be placed in the admitted market, the surplus lines market and MAP, i.e., the voluntary market. The FPCJUA is a residual market or market of last resort. It is comprised of all insurers licensed by the State of Florida to write property and casualty insurance coverage in Florida. After the devastation to Florida from Hurricane Andrew in 1992, the premiums for commercial residential coverage greatly increased and became virtually unaffordable. However, coverage was possible if an applicant could afford the premiums being charged. Commercial residential coverage became a hard market which meant that it was hard to obtain insurance for such coverage. Attempting to address the dilemma involving insurance coverage of commercial residential property, in the November 1993 Special Session, the Florida Legislature specifically activated temporary coverage under the Joint Underwriters Association (JUA) for commercial residential properties, i.e., condominium associations, apartment buildings, common elements of homeowners associations and other commercial coverages of residences. As of May 1994, the JUA had not written any coverages for commercial residential properties. Out of approximately 300 to 400 admitted insurance companies in Florida qualified to write commercial residential coverage, only two to five were writing such coverage after Hurricane Andrew. In May 1994, the Department of Insurance by emergency order directed the JUA to write coverages for commercial residential properties under specified guidelines. Without the emergency order, the JUA would not have written coverages for such properties because coverage was being written even though it was being done by only two to five admitted insurance companies and even though the premiums were virtually unaffordable. Finally, the Department of Insurance resorted to a more enduring remedy by seeking to amend Rule 4J-2.002, Florida Administrative Code, to address the dilemma of coverage for commercial residential properties. Foremost, the proposed amendments would modify the FPCJUA's Plan of Operation by temporarily making the coverage for commercial residential property automatically eligible for the FPCJUA without first seeking coverage from the voluntary market. This change would, therefore, transform the FPCJUA, as far as coverage for commercial residential property is concerned, into a market of first resort instead of last resort. Secondly, the proposed amendments would provide for specific deductibles for such coverage. And thirdly, the proposed amendments would provide for the FPCJUA to conduct periodic surveys regarding premiums for such coverage to determine if rates should be adjusted. Standing is not an issue in this proceeding.
The Issue Whether Respondent owes payment to Petitioner in the amount of $60,748.78 for watermelons sold by Petitioner to Respondent.
Findings Of Fact Between May 18 and June 5, 1990, Petitioner James G. Young sold a total of 40 truckloads of watermelons to Respondent Maddox Brothers Produce, Inc. Petitioner was to have received a price of five cents per pound through May 26, 1990 and four cents per pound through the remainder of the shipping season. Respondent has failed to pay $60,748.78 of the amount owed to Petitioner for such produce. At no time did Petitioner received any complaint that the watermelons were unsatisfactory. Respondent is a licensed agricultural dealer engaged in the business of brokering agricultural products, Florida license #0030. Respondent is subject to regulation by the Department. Respondent has posted a Fireman's Fund Insurance Company surety bond #11141308327 in the amount of $50,000 with the Department. Respondent did not appear at the hearing. No evidence was presented to contradict the testimony of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that The Florida Department of Agriculture and Consumer Services enter a Final Order requiring Maddox Brothers Produce, Inc., to pay to Petitioner the sum of $60,748.78. DONE and RECOMMENDED this 26th day of April, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1991. COPIES FURNISHED: The Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, Florida 32399-0800 James G. Young Route 3 Box 272-A Wildwood, Florida 34758 Patricia M. Harper, President Maddox Brothers Produce, Inc. 2124 Forest Avenue Knoxville, Tennessee 37916 Fireman's Fund Insurance Company Surety Claims Center Post Office Box 193136 San Francisco, Florida 94119-3136
The Issue Whether the Respondent committed the violations alleged in the administrative complaint dated March 22, 1995; and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Mark Edward McKinley, is licensed in Florida as a general lines insurance agent. At all times material to the allegations of the administrative complaint the Respondent was so licensed. The Petitioner, Department of Insurance and Treasurer, has jurisdiction over insurance licenses issued in this state. On or about December 9, 1991, an Order of Liquidation, Injunction and Notice of Automatic Stay was entered in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, regarding the receivership of Great Oaks Casualty Insurance Company (Great Oaks). Pursuant to such order all policies written with Great Oaks were cancelled effective January 9, 1992. Subsequent to the order the Department conducted an audit of the Respondent's agent account. The audit consisted of a calculation of the unearned commissions on all Great Oaks policies issued through Respondent. Such unearned commissions were due and owed to the Department as the receiver. On or about June 10, 1992, a statement of the amounts owed together with a letter outlining what the commission statement consisted of was mailed to the Respondent. On or about December 22, 1992, after the Respondent failed to respond to the first letter, the Department mailed a first demand letter to the Respondent. On or about July 2, 1993, when the Respondent failed to respond to the first demand letter, the Department issued, by certified mail, a demand letter to the Respondent requesting remittance of the monies owed to the receiver. The certified receipt was returned to the Department, and it is found the Respondent received the demand letter of July 2, 1993. The Respondent failed or otherwise refused to pay the amount owed. As a result, a Summary Order directing immediate delivery of funds was entered against the Respondent on December 21, 1993. The Respondent failed to pay after entry of the Summary Order and a Final Order was issued on April 8, 1994. The Respondent failed to pay the final judgment within thirty (30) days of entry of the judgment. To the date of hearing the Respondent has failed or otherwise refused to make payment on the amount owed.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order revoking Respondent's license as a general lines insurance agent. DONE AND RECOMMENDED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2363 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 13 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Mr. Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Mr. Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399-0300 Michael K. McCormick, Esq. Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Mr. Mark Edward McKinley 2641 South University Drive Davie, FL 33314
The Issue The issue in this case is whether the Homeowner’s Association of Eagle Creek, Inc., (Respondent) discriminated against Stanley Byrdsell (Petitioner) based on race or disability.
Findings Of Fact At all times material to this case, the Petitioner was a homeowner at, and resident of, a residential community identified as “Eagle Creek” in Orlando, Florida. The Petitioner is an African-American male. On occasions during his residency at Eagle Creek, the Petitioner relied on a wheelchair for mobility following surgeries related to injuries sustained in automobile accidents. The Respondent is the legal entity created, in relevant part, to manage common areas at Eagle Creek, to enforce various Eagle Creek property restrictions, and to collect assessments from Eagle Creek homeowners. The Petitioner’s complaint of discrimination by the Respondent was essentially focused on his interactions with Maria Loffredo, the Respondent’s manager during the time the Petitioner resided at Eagle Creek. Ms. Loffredo is no longer employed by the Respondent. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, discriminated against the Petitioner in any manner based on his race or disability. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, treated the Petitioner in any manner differently than any other resident of Eagle Creek. UNPAID ASSESSMENTS Collection of assessments from Eagle Creek homeowners appears to have been a substantial issue for the Respondent. At one point during the relevant period, approximately 60 percent of Eagle Creek homeowners, including the Petitioner, were delinquent in paying assessments to the Respondent. The Respondent routinely provided delinquent homeowners with an opportunity to become current on unpaid assessments by making periodic installment payments of the funds due. The periodic payment plans were documented by written agreements executed between the Respondent and the participating homeowners. The Petitioner was offered the opportunity to enter into such an installment payment plan to satisfy the unpaid assessments, but did not do so. The evidence fails to establish that the Respondent’s efforts to collect the unpaid assessments from the Petitioner were in any manner different from the collection efforts routinely applied to all Eagle Creek homeowners who were in arrears on assessment payments. The Petitioner testified that he and Ms. Loffredo entered into a verbal agreement whereby he would provide web design services to the Respondent in an amount equal to his unpaid assessments. The Petitioner offered no documentation to support the assertion. Ms. Loffredo denied entering into such an agreement and testified that she had no authority to enter into a contract with the Petitioner without approval by the Respondent’s board of directors. There is no evidence that the board of directors ever considered any such agreement between the Petitioner and the Respondent. The evidence fails to establish the existence of any agreement between the Petitioner and the Respondent regarding web design services. THE PLYWOOD RAMP As previously stated, the Petitioner occasionally relied on a wheelchair for mobility. During those times, the Petitioner placed a sheet of plywood across an entry step at the front of his house to facilitate his entry into the home. On more than one occasion, Ms. Loffredo contacted the Petitioner to inquire about his use of the plywood ramp. The Petitioner has asserted that Ms. Loffredo harassed him about the ramp, and that her inquiries were discriminatory. At the hearing, the Petitioner’s former girlfriend testified that she believed Ms. Loffredo was rude or disrespectful during the inquiries. The evidence fails to establish that Ms. Loffredo’s inquiries were discriminatory in any manner. The Respondent took no action whatsoever to prohibit or restrict the Petitioner’s use of the ramp. COMMUNITY INSPECTIONS The Petitioner has asserted that Ms. Loffredo targeted his home for various inspections in order to harass or intimidate him because of his race or disability. The evidence fails to establish that the Petitioner’s residence was inspected more frequently than that of other homeowners in Eagle Creek, or that the Petitioner was subjected to property restrictions different from those applied to other homeowners. RACIAL SLUR The Petitioner has asserted that, on one occasion, he observed Ms. Loffredo parked in front of his house, and alleged that when he approached her to ask about her presence, she responded by directing a racial slur towards him and then driving off. Ms. Loffredo testified that she routinely went through the Eagle Creek community to monitor homeowner compliance with property restrictions, but denied making the statement attributed to her by the Petitioner. The evidence is insufficient to establish that the alleged racial statement occurred. ENTRY GATE REMOTE CONTROLS Eagle Creek is a private community. Entry into Eagle Creek is through gated and guarded access points. Residents entering the community use coded electronic devices to open the gate. Residents, as well as non-residents, can also gain entry into the community by stopping at a guardhouse, where security personnel are present on a 24-hour basis. The Respondent’s governing documents provide that a resident’s electronic gate access can be suspended for non- payment of assessments. At some point after the Petitioner became delinquent in payment of assessments, the Respondent disabled the Petitioner’s entry codes, thereby suspending the Petitioner’s ability to enter the development through the electronic gate. The Respondent suspended electronic gate access for numerous residents who were delinquent in paying assessments. The evidence fails to establish that the suspension of the Petitioner’s electronic access codes was related to the Petitioner’s race or disability. Notwithstanding the Petitioner’s non-payment of assessments, the Petitioner’s ability to enter through the electronic gate system was restored after he provided a letter to the Respondent asserting that one of the Petitioner’s children had a medical condition. GATE INCIDENT At some point as the Petitioner drove a vehicle through an open electronic entry gate, the wooden gate came down onto the Petitioner’s vehicle before it had cleared the entry point. The gate was damaged as the Petitioner continued to drive as the gate came down. Ms. Loffredo became aware of the incident when witnesses who observed the Petitioner driving through the entry reported it to her. The gates are common property owned by the Respondent. Ms. Loffredo thereafter contacted law enforcement authorities to document the incident, and she went to the gate to observe the damaged gate. The evidence fails to explain why the gate closed while the Petitioner’s vehicle was proceeding through it. Although the Petitioner generally asserted that Ms. Loffredo committed some type of discriminatory act towards him in relation to these events, there is no evidence to support the assertion. VANDALISM On one occasion, a group of juveniles accompanied by an adult drove through a part of Eagle Creek while tossing raw eggs at presumably random houses and cars. The Petitioner’s residence and vehicle were hit and damaged by the eggs. Before the vandals managed to escape from Eagle Creek, the Petitioner and a neighbor managed to stop and detain them, and then contacted local law enforcement authorities. Ms. Loffredo became aware of the incident, and came to the scene while the law enforcement authorities were present. Ms. Loffredo determined that there was no damage to the Respondent’s property and apparently so advised the law enforcement authorities. The Petitioner has asserted that Ms. Loffredo also told law enforcement officers to refrain from prosecuting the vandals for the apparent damage to private property caused by the event, and that her actions in this regard were discriminatory towards him. There is no evidence that the Petitioner filed any complaint with local law enforcement or pursued any legal action against the vandals. Ms. Loffredo denied telling the law enforcement authorities not to prosecute the vandals for damage to private property. There is no evidence that Ms. Loffredo had any authority to prevent the prosecution of the vandals. Even presuming that Ms. Loffredo somehow had the authority to prevent prosecution of neighborhood vandals, the Petitioner’s claim that Ms. Loffredo discriminated against him based on race or disability would suggest that the vandals were prosecuted for damage to houses or vehicles owned by other residents of Eagle Creek. There was no evidence presented that the vandals were prosecuted on behalf of any Eagle Creek homeowner. The evidence fails to establish that Ms. Loffredo had any authority or took any action to prevent criminal prosecution of the vandals for damage to the Petitioner’s private property, or to that of any other Eagle Creek resident. LOCAL GOVERNMENT CODE ENFORCEMENT The Petitioner has asserted that the Respondent targeted his residence by frequently filing various complaints with the local housing code enforcement agency. While local housing code enforcement inspectors apparently received a number of complaints about the condition of the Petitioner’s residence, the evidence fails to establish that the Respondent was the source of the complaints. Further, there is no evidence that such complaints were related to the Petitioner’s race or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Stanley Byrdsell. DONE AND ENTERED this 15th day of December, 2014, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2014. COPIES FURNISHED: Karen Wonsetler, Esquire Suite 135 860 North Orange Avenue Orlando, Florida 32601 (eServed) Stanley Byrdsell Post Office Box 1645 Windermere, Florida 34786 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 (eServed) Sarah Elizabeth Gammon, Esquire Law Office of Karen Wonsetler, P.A. Suite 135 860 North Orange Avenue Orlando, Florida 32801-1011 (eServed)
The Issue Whether Respondent, FYV, Inc., d/b/a Miami Tropical Nursery, Inc. (Respondent or Buyer), owes Petitioner, Bud Sod, LLC (Petitioner or Seller), the sum of $7,168.09 for pallets of sod sold to the Buyer by the Seller.
Findings Of Fact At all times material to the instant case, Petitioner and Respondent were involved in the purchase and sale of an agricultural product grown and delivered in Florida. Under the terms of their on-going business relationship, Petitioner supplied Respondent with sod. There is no disagreement that Petitioner produced and sold the sod to Respondent. In fact, the parties had numerous dealings that covered many tickets noting deliveries and invoices noting the monies owed. Prior to July 7, 2010, the parties met without their attorneys to try and agree upon an amount owed by Respondent. At that time, they went through the volumes of paperwork related to the claim and reached a mutually-acceptable decision. Petitioner maintains that Respondent owes $17,168.09 as a compromised sum for the sod sold by Petitioner to Respondent. Of that amount, Petitioner acknowledges that Respondent remitted $10,000 to the Seller. Accordingly, Petitioner asserts that the sum of $7,168.09 is owed and unpaid for the sod purchased by Respondent. Respondent presented no evidence to refute this amount.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving Petitioner's complaint against Respondent in the amount of $7,168.09. DONE AND ENTERED this 9th day of August, 2010, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 August, 2010. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Kathy Alves Fidelity & Deposit Company of Maryland Post Office Box 968036 Schaumberg, Illinois 60196 Steven J. Polhemus, Esquire Post Office Box 2188 LaBelle, Florida 33975 Yolanda More FYV, Inc., d/b/a Miami Tropical Nursery, Inc. 104475 Overseas Highway Key Largo, Florida 33037 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
