07-003434PL Department Of Financial Services vs. Victoria Nolen Colon Status: Closed Recommended Order on Wednesday, April 30, 2008.

Summary: Recommend a 30-day suspension for sliding.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07-3434PL

)

VICTORIA NOLEN COLON, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in West

Palm Beach, Florida, on November 30, 2007, and January 28, 2008.

The hearing on November 30, 2007, was by videoconference with

the Administrative Law Judge participating from Tallahassee.

The hearing on January 28, 2008, was in West Palm Beach.

APPEARANCES

For Petitioner: William Gautier Kitchen

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

For Respondent: Jed Berman

Infantino and Berman

Post Office Drawer 30

Winter Park, Florida 32790

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of an unfair or

deceptive trade practice by selling ancillary insurance products

to customers without adequate disclosure, in violation of

Sections 626.9541(1)(z) and 626.621(6), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 27, 2007,

Petitioner alleged that Respondent, as a licensed general lines

agent, was employed by Econo Insurance Agency in Deerfield

Beach.

At the start of the hearing, Petitioner announced that it

was dropping all allegations concerning delays in issuing

refunds to customers because Respondent lacked the authority to

sign the checks. The remaining allegations are set forth below.

Count I of the Administrative Complaint alleges that, on

July 27, 2004, Denise Parker visited the Econo Insurance Agency

to renew her automobile insurance. Respondent allegedly sold

Ms. Parker an accidental medical supplement with National Safe

Drivers without informing her that she was purchasing such

coverage or that such coverage was not required under Florida

law. Count I alleges that Ms. Parker did not want an accidental

medical supplement and would not have purchased such coverage,

if it had been offered to her.

Count I alleges that Respondent thus willfully used her

license to circumvent requirements or prohibitions contained in

the Insurance Code, in violation of Section 626.611(4), Florida

Statutes; demonstrated a lack of fitness or trustworthiness to

engage in the business of insurance, in violation of Section

626.611(7), Florida Statutes; engaged in fraudulent or dishonest

practices in the conduct of business, in violation of Section

626.611(9), Florida Statutes; willfully failed to comply with

any proper order or rule of the department or willfully violated

any provision of the Insurance Code, in violation of Section

626.611(13), Florida Statutes; violated any provision of the

Insurance Code or other law applicable to the business of

insurance in the course of dealing under the license, in

violation of Section 626.621(2), Florida Statutes; violated any

lawful order of the department, in violation of Section

626.621(3), Florida Statutes; in conducting business under the

license, engaged in unfair methods of competition or in unfair

or deceptive acts or practices or otherwise showed herself to be

a source of injury or loss to the public or detrimental to the

public interest, in violation of Section 626.621(6), Florida

Statutes; represented to the applicant that a specific ancillary

coverage or product is required by law in conjunction with the

purchase of insurance when such coverage or product is not

required, in violation of Section 626.9541(1)(z)1. Florida

Statutes; represented to the applicant that a specific ancillary

coverage or product is included in the policy without an

additional charge when such charge is required, in violation of

Section 626.9541(1)(z)2. Florida Statutes; and charged the

applicant for a specific ancillary coverage or product, in

addition to the cost of the insurance coverage applied for,

without the informed consent of the applicant, in violation of

Section 626.9541(1)(z)3. Florida Statutes.

Count II of the Administrative Complaint alleges that, on

August 21, 2004, Luery Moreno visited the Econo Insurance Agency

to purchase automobile insurance. Respondent allegedly sold

Ms. Moreno an accidental medical supplement without informing

her that she was purchasing such coverage or that such coverage

was not required under Florida law. Count II alleges that

Ms. Moreno did not want an accidental medical supplement and

would not have purchased such coverage, if it had been offered

to her. Count II alleges that Respondent thus violated the same

provisions as cited in Count I.

Count III of the Administrative Complaint alleges that, on

July 30, 2004, Megan McCartin visited the Econo Insurance Agency

to renew her automobile insurance. Respondent allegedly sold

Ms. McCartin an accidental medical supplement without informing

her that she was purchasing such coverage or that such coverage

was not required under Florida law. Count III alleges that

Ms. McCartin did not want an accidental medical supplement and

would not have purchased such coverage, if it had been offered

to her. Count III alleges that Respondent thus violated the

same provisions as cited in Count I.

Count IV of the Administrative Complaint alleges that, on

October 26, 2004, Ashley McCartin visited the Econo Insurance

Agency to renew her automobile insurance. Respondent allegedly

sold Ms. McCartin an accidental medical supplement without

informing her that she was purchasing such coverage or that such

coverage was not required under Florida law. Count IV alleges

that Ms. McCartin did not want an accidental medical supplement

and would not have purchased such coverage, if it had been

offered to her. Count IV alleges that Respondent thus violated

the same provisions as cited in Count I.

Count V of the Administrative Complaint alleges that, on

November 19, 2004, Alta Thayer visited the Econo Insurance

Agency to purchase automobile insurance for her 1990 Lincoln

Continental. Respondent allegedly sold Ms. Thayer a motor club

membership plan without informing her that she was purchasing

such a plan or that such a plan was not required under Florida

law. Count V alleges that Ms. Thayer did not want a motor club

membership plan and would not have purchased such a plan, if it

had been offered to her. Count V alleges that Respondent thus

violated the same provisions as cited in Count I.

Respondent denied the allegations and requested a formal

hearing.

At the hearing, Petitioner called five witnesses, and

Respondent called one witness. Both parties' exhibits, which

were all admitted, are identified in the transcript.

The court reporter filed the transcript on February 15,

2008. The parties filed proposed recommended orders by

March 17, 2008.

FINDINGS OF FACT

1. At all material times, Respondent has been a licensed

general lines agent, holding license number A192887. She has

been licensed for 15 years and has not been disciplined.

2. From January 2000 to July 2007, Respondent was employed

by Econo Insurance Agency in Deerfield Beach. She was employed

to sell insurance and otherwise serve customers. Econo

Insurance Agency paid Respondent a salary, but she earned

commissions from the sales of ancillary products. This case

involves the sale of two products ancillary to personal injury

protection (PIP) coverage: an accidental medical supplement

(also known as an accidental medical protection plan) to pay the

$1000 deductible under the PIP policy commonly sold by the

agency and a motor club membership plan to pay for towing and a

rental car.

3. On July 27, 2004, Denise Parker visited Econo Insurance

Agency to renew her PIP coverage. She had obtained her

insurance from Econo Insurance Agency for 17 years. Ms. Parker

initially testified that she did not meet with Respondent, but

instead met with another woman, Crystal Fowler. Ms. Parker

testified unequivocally that she dealt with Respondent on other

occasions, but did not on July 27 and that Ms. Parker did not

purchase insurance from Respondent "that year." At the hearing,

Ms. Parker looked at Respondent and stated that she was not the

woman with whom she had dealt on the day in question.

4. After a short break, Ms. Parker testified that

Respondent, not Ms. Fowler, sold her the product in question, an

accidental medical supplement. The confusion may be

attributable to the fact that Ms. Parker made two visits to the

agency. The first was on July 27 to arrange for the renewal of

her PIP coverage, and the second was on August 2, 2004, to pay

for and obtain her policy. However, the testimony of Ms. Parker

precludes assigning responsibility to Respondent, rather than

Ms. Fowler, for any acts or omissions that may have taken place

during the July 27 and August 2 office visits. Although

documentation, described below, bears Respondent's signature,

this fact does not preclude a division of responsibilities

between Respondent and Ms. Fowler, who may nonetheless have

presented the coverage options to Ms. Parker.

5. On July 27, Ms. Parker signed a number of documents at

the agency. One of the documents is an application to purchase

an accidental medical protection plan for up to $1000 in

benefits for a premium of $110. According to the application,

this coverage is administered by National Insurance

Underwriters, Inc., in Deerfield Beach and, according to the

policy, the coverage is underwritten by "certain Underwriters at

Lloyd's, London (not incorporated)." (The telephone number for

claims is the same as the telephone number shown in the motor

club membership plan, described below, administered by "National

Safe Drivers" or "Nation Safe Drivers," so Petitioner and

Respondent have tended to refer to National Safe Drivers as the

obligor, or its agent, under both ancillary products.)

6. The application clearly discloses the optional nature

of the accidental medical supplement coverage. Immediately

above Ms. Parker's signature is a statement: "The purchase of

this plan is optional and is not required with your auto

insurance policy." Beside Ms. Parker's signature and bearing

the same date is the signature of Respondent, attesting that

three other carriers denied this coverage.

7. The premium finance agreement and disclosure statement,

which is a single form signed by Ms. Parker on July 27, 2004,

shows a premium for PIP coverage and a $110 premium to Nations

Safe Drivers for accidental medical supplement coverage. The

renewal premium notice discloses, immediately above Ms. Parker's

signature, which is dated July 27, that she has elected the

$1000 deductible on her PIP coverage.

8. On August 21, 2004, Luery Moreno visited the Econo

Insurance Agency to purchase automobile insurance. She met with

Respondent and agreed to purchase the insurance from her. On

this day, Ms. Moreno purchased an accidental medical supplement,

even though she testified that Respondent never mentioned the

accidental medical supplement that she purchased, or that this

coverage was not required under Florida law.

9. Initially, Ms. Moreno stated that this was her first

visit to the Econo Insurance Agency, but, on cross-examination,

she admitted that her recollection of the events of August 21

was not "clear." Upon the presentation of coverage that she had

purchased in June 2003 from Econo Insurance Agency, Ms. Moreno

recalled that she had purchased automobile insurance from the

same agency in June 2003, that she had purchased the accidental

medical supplement at that time, and that she might have asked

Respondent for the same coverages when she visited the office in

August 2004. In fact, Ms. Moreno had submitted a claim under

the motor club membership plan that she had purchased in June

2003.

10. As in June 2003, Ms. Moreno completed an application

on August 21, 2004, for accidental medical supplement coverage.

The applications both state, above her signature: "The purchase

of this plan is optional and is not required with your auto

insurance policy." The premium finance agreement and disclosure

statement show the separate premiums for the PIP and accidental

medical supplement coverages and is signed by Ms. Moreno.

Because Ms. Moreno secured coverage with the Florida Automobile

Joint Underwriting Association (JUA), she obtained a summary of

coverages and premium, which clearly reveals that she was

purchasing PIP (as well as property damage), medical payments,

and towing and car rental reimbursement, although the summary of

coverages and premium form fails to itemize premiums for each

product, instead showing a gross premium for all coverages.

Although Ms. Moreno disputed her signature on one or more of the

documents, the evidence failed to establish that she did not

sign all of the relevant documents.

11. On July 30, 2004, Megan McCartin visited Econo

Insurance Agency to obtain PIP coverage. She met with

Respondent and agreed to purchase insurance from her.

Ms. McCartin selected Econo because her family had purchased

insurance from this agency in the past. Initially, Ms. McCartin

testified that this was the first time that she had obtained

insurance, so she brought her mother with her to help with the

transaction. When presented with documents showing that she had

purchased insurance from Econo Insurance Agency in July 2003,

Ms. McCartin recalled that the July 2004 visit was for the

renewal of the coverage that she had purchased the prior year.

12. Most of Ms. McCartin's testimony on direct concerned

the transaction in which her mother helped her, which was

probably the July 2003 transaction. The documentation from the

July 2003 transaction discloses that Ms. McCartin had purchased

the accidental medical supplement coverage and towing and car

rental reimbursement for the prior year. On July 30, 2004,

Ms. McCartin renewed these coverages for the year in question.

Both years, Ms. McCartin signed the applications for the

accidental medical supplement with the same disclosure noted

above. The premium finance agreement and disclosure statement

shows the separate premiums for the PIP and accidental medical

supplement coverages and the signature of Ms. McCartin. Because

Ms. McCartin was purchasing insurance from the JUA, she also

received a summary of coverages of premium, which clearly

discloses the existence of medical payments and towing and car

rental, in addition to PIP.

13. On October 26, 2004, Ashley McCartin, Megan's sister,

visited the Econo Insurance Agency to renew her automobile

insurance. She met with Respondent and agreed to purchase

insurance from her. Ms. Ashley McCartin testified that she had

purchased automobile insurance previously from the agency and

wanted only the minimum coverage required by law. Ms. Ashley

McCartin recalls speaking with Respondent for nearly an hour and

listening to Respondent's description of the towing package, but

testified that Respondent said nothing about an accidental

medical supplement or accidental medical protection plan.

14. Ms. Ashley McCartin testified that Respondent told her

that, with this insurance, she obtained towing coverage, which

Ms. McCartin thought would be useful because her car was

unreliable. At all times, though, Ms. McCartin intended to

purchase only what the law required due to her strained

financial circumstances.

15. The documentation discloses that Ms. Ashley McCartin

purchased a motor club membership plan in 2003 and 2004 and that

she signed an application for an accidental medical supplement

with the same disclaimer as contained in the applications

described above. She also signed a JUA summary of coverages and

premium, which shows, as separate items, PIP, medical payments,

and towing and car rental. Likewise, Ms. McCartin signed a

premium finance agreement and disclosure statement, which shows

separate premiums for the PIP and accidental medical supplement

coverages. The PIP coverage cost her $1450, and the accidental

medical supplement cost her $110.

16. On November 19, 2004, Alta Thayer visited Econo

Insurance Agency to purchase automobile insurance. She met with

Respondent and agreed to purchase insurance from her. Now 74

years old, Ms. Thayer admitted that she did not recall

purchasing insurance in 2004, but seemed to recall generally a

transaction with Respondent, subject to the limitations noted

below.

17. Ms. Thayer drove to the agency in a 2002 Hyundai,

which was insured through the Marlin Insurance Agency, but she

wanted to insure another car, a Lincoln Continental. While

testifying, Ms. Thayer displayed irritation with many aspects of

her transaction with Respondent. Ms. Thayer testified that

other insurance agents all took photographs of the insured

vehicle and checked the odometer, but Respondent did not try--it

is unclear whether, when Respondent declined to photograph the

car, Ms. Thayer had already informed her that the vehicle to be

insured was not parked outside the office. At first, Ms. Thayer

testified that Respondent had been "nasty" from the start, but

then changed her testimony to say that Respondent became

irritable when, the next day, Ms. Thayer returned in connection

with some tag work. Ms. Thayer testified that the insurer

canceled her insurance on the day after she had obtained it, on

the ground that she had another car, presumably the Hyundai,

insured with another company. While Ms. Thayer sat and waited

to be taken care of, she complained that the receptionist and

Respondent chatted. When Ms. Thayer complained, she claimed

that Respondent told her to file a complaint, "you old bag."

18. Ms. Thayer testified that she and Respondent never

discussed a motor club membership plan, nor did she need one.

Perhaps again confusing the two cars, Ms. Thayer "explained"

that the Hyundai was only two years old and had come with a

five-year roadside assistance program. When reminded that she

was insuring the Lincoln, Ms. Thayer testified that it had never

given her problems.

19. On November 19, 2004, Ms. Thayer signed an automobile

service contract for a motor club membership plan for a "1990"

Lincoln Continental. The contract calls for the payment of a

$50 fee in return for towing and emergency road service and car

rental reimbursement. Unlike the application for the accidental

medical supplement, the application for the motor club

membership plan includes no disclaimer that this plan is

optional and not required with the PIP coverage. On the same

date, Ms. Thayer also signed a summary of coverages and premium,

which shows separate PIP and towing and car rental coverages.

20. Four of these five transactions fail to present cases

of liability without regard to the testimony of Respondent.

Ms. Moreno's recollection of her transaction is impossible to

separate from her recollection of the prior year's transaction.

Ms. Moreno's admission that she may have asked merely for the

same coverage from the prior year undermines the remainder of

her testimony. Ms. Parker's recollection of her transaction is

flawed by her misidentification of Respondent and the resulting

possibility that Ms. Fowler, not Respondent, is guilty of the

acts and omissions of which Ms. Parker complains. Ms. Megan

McCartin's recollection of her transaction is impossible to

separate from her recollection of the prior year's transaction.

As is the case with Ms. Moreno's transaction, Ms. Megan

McCartin's transaction renewed the same accidental medical

supplement coverage that she had obtained the prior year with

the same documentation, so it is more difficult, on this ground

as well, to find Respondent guilty of any concealment or

misrepresentation as to the accidental medical supplement.

21. Ms. Thayer displayed serious credibility problems--of

confusion, not prevarication. Ms. Thayer's testimony was

confused at several points, as in her "explanation" that her new

Hyundai did not require towing coverage when she was insuring a

14-year-old Lincoln. Repeatedly, Ms. Thayer referred to her

Lincoln as a 1980 model, then a 1990 model, then a 1980 model,

even after inquiry by the Administrative Law Judge intended to

draw her attention to the issue and resolve it.

22. Ms. Thayer was visibly angry at Respondent at the

hearing and was decidedly adversarial as a witness. Perhaps her

anger stemmed from the immediate cancelation and the agency's

mishandling of her transaction, as her application revealed, on

its face, that she owned another vehicle for which she was not

seeking insurance. But Ms. Thayer seemed to be looking for

things with which to fault Respondent, such as her failure to

get up out of her chair and walk outside to photograph and

inspect the car that Ms. Thayer had driven to the agency, even

though this was not the car to be insured. Still working four

days each week in the fitting room at Marshall's department

store, Ms. Thayer proved an energetic, though not always

responsive, witness, whose eagerness to bolster her own

credibility extended to the assertion, late in her testimony,

that she had a top secret clearance from the Korean War. After

observing Respondent's demeanor during testimony and at hearing

and comparing it to the demeanor of Ms. Thayer, it is highly

unlikely that Respondent called Ms. Thayer an "old bag"--a fact

that raises grave problems with the reliability of the rest of

Ms. Thayer's testimony.

23. The transaction with Ms. Ashley McCartin presents the

only case of sliding undisclosed coverages carrying extra

premiums by Respondent. Seeming to bear no grudge against

Respondent, Ms. Ashley McCartin testified frankly that she told

Respondent that she wanted the minimum coverage, and Respondent

said nothing about an accidental medical supplement or

accidental medical protection plan. However, Ms. McCartin

clearly signed forms asking for this coverage and acknowledging

the fact that it was not included in her PIP premium.

24. Respondent testified that she sold 100-150 policies

per month and was responsible for the tag and title work

associated with these sales. A typical customer never asked

just for PIP, but asked instead for minimum coverage.

Respondent would take 10-15 minutes per transaction to explain

bodily injury and underinsured motorist coverages and the

consequences of not purchasing these items, which also offered

Respondent commission income.

25. Respondent offered accidental medical supplement and

the motor club membership plan to most of her customers.

Respondent testified that she told her customers that these

ancillary products were "included" with their coverages. She

recalled that one of the McCartins was "delighted" upon hearing

that such coverage was "included," clearly suggesting that

Respondent's "explanation" implied that the ancillary coverage

was at no additional expense, or at least that the customer so

inferred.

26. There is some discrepancy between the versions of

Ms. Ashley McCartin and Respondent. Ms. McCartin testified that

Respondent never mentioned the accidental medical supplement,

and Respondent testified that she always assured the customer

that the ancillary coverage was "included" in the primary

coverage. However, Ms. McCartin's testimony reveals little

knowledge of insurance products and is consistent with her

"understanding" that the medical coverage of $1000 was just part

of PIP. Such a misunderstanding would be facilitated by

Respondent's misleading assurance--repeated more than once at

the hearing--that the accidental medical supplement is

"included" with the PIP.

27. Respondent's testimony that she assured her customers

that ancillary products were "included" with the PIP coverage

does not override the deficiencies noted above as to the other

four customers. Ms. Parker essentially cannot say who said what

to her, so, even if Respondent were misleading her customers at

the time as to the relationship between ancillary products and

PIP, nothing establishes that she did so with Ms. Parker.

Ms. Moreno may well have told Respondent to give her the same

coverage as she had the prior year, during which she had filed a

claim under the motor club membership plan, so Respondent would

never have had the need to "explain" to Ms. Moreno the

relationship of the ancillary products to the PIP product.

28. Ms. Thayer is the only customer who did not purchase

both ancillary products, which suggests either discernment on

her part or restraint on the part of Respondent--but, either

way, Ms. Thayer may have obtained what she wanted. She is also

the only customer for whom the alleged ancillary product is the

motor club membership plan, which might reasonably have

represented an attractive purchase to Ms. Thayer given the age

of her Lincoln.

29. Ms. Megan McCartin presents the closest case among the

four remaining customers, but her inability to differentiate

between the 2003 and 2004 transactions precludes a finding of

sliding by the requisite standard of proof.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

Fla. Stat. (2007).

31. Section 626.611, Florida Statutes, provides:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, title agency, adjuster,

customer representative, service

representative, or managing general agent,

and it shall suspend or revoke the

eligibility to hold a license or appointment

of any such person, if it finds that as to

the applicant, licensee, or appointee any

one or more of the following applicable

grounds exist:

* * *

(4) If the license or appointment is

willfully used, or to be used, to circumvent

any of the requirements or prohibitions of

this code.

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

* * *

(9) Fraudulent or dishonest practices in

the conduct of business under the license or

appointment.

* * *

(13) Willful failure to comply with, or

willful violation of, any proper order or

rule of the department or willful violation

of any provision of this code.

* * *

32. Section 626.621, Florida Statutes, provides:

The department may, in its discretion, deny

an application for, suspend, revoke, or

refuse to renew or continue the license or

appointment of any applicant, agent,

adjuster, customer representative, service

representative, or managing general agent,

and it may suspend or revoke the eligibility

to hold a license or appointment of any such

person, if it finds that as to the

applicant, licensee, or appointee any one or

more of the following applicable grounds

exist under circumstances for which such

denial, suspension, revocation, or refusal

is not mandatory under s. 626.611:

* * *

(2) Violation of any provision of this code

or of any other law applicable to the

business of insurance in the course of

dealing under the license or appointment.

(3) Violation of any lawful order or rule

of the department, commission, or office.

* * *

(6) In the conduct of business under the

license or appointment, engaging in unfair

methods of competition or in unfair or

deceptive acts or practices, as prohibited

under part IX of this chapter, or having

otherwise shown himself or herself to be a

source of injury or loss to the public.

33. Section 626.9541(1)(z), Florida Statutes, provides:

The following are defined as unfair methods

of competition and unfair or deceptive acts

or practices:

* * *

(z) Sliding. --Sliding is the act or

practice of:

1. Representing to the applicant that a

specific ancillary coverage or product is

required by law in conjunction with the

purchase of insurance when such coverage or

product is not required;

2. Representing to the applicant that a

specific ancillary coverage or product is

included in the policy applied for without

an additional charge when such charge is

required; or

3. Charging an applicant for a specific

ancillary coverage or product, in addition

to the cost of the insurance coverage

applied for, without the informed consent of

the applicant.

34. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

35. In Mack v. Department of Financial Services , 914 So.

2d 986, 989 (Fla. 1st DCA 2005), sliding violated Sections

and (12), Florida Statutes. In Thomas v. Department of

Insurance and Treasurer , 559 So. 2d 419, 421 (Fla. 2d DCA), rev.

denied , 570 So. 2d 1307 (1990), sliding violated Sections

626.611(5), (7), and (9) and 626.621(6), Florida Statutes.

36. The efficacy of the documentation in this case is

partly addressed by Thomas , supra . In that case, the agency had

each customer sign, among multiple other forms, an "election of

accidental death and/or motor club towing coverage." Evidently,

the only language in the Thomas form that indicated that the

coverage was optional was in the use of "election" in the title.

In the present case, each application clearly discloses that the

accidental medical supplement is optional, although the motor

club membership plan application contains no such disclaimer.

The summary of coverages and premium forms, which are present in

all but the Parker transaction, show the PIP as distinct from

both ancillary coverages, but fail to state separate premiums

for each product, instead showing a single total at the bottom

of each form.

37. Although the present documentation better discloses

the optional nature of the ancillary product, at least as to the

accidental medical supplement, it does not provide Respondent an

absolute defense against professional liability. As the Thomas

court warned, the principle that one is bound by what one signs-

applicable to relationships between an insured and an insurer--

does not insulate an insurance agent from the disciplinary

consequences of his wrongful acts and omissions with a customer.

Thomas , 559 So. 2d at 421.

38. This case is unusual in two respects. First, the

complaints of all but Ms. Ashley McCartin fail without regard to

the testimony of Respondent. Second, the complaint of

Ms. Ashley McCartin is not a case of the testimony of a customer

against the testimony of the insurance agent and the force of

the exculpatory agency documents. In the case of Ms. Ashley

McCartin, it is the testimony of the customer and that of the

insurance agent opposed to the exculpatory agency documents. On

these facts, Petitioner has proved sliding in this transaction.

39. The specific definitional statutes at issue are

Section 626.9541(1)(z)2. and 3., Florida Statutes. The statute

best defining the wrongful acts and omissions is Section

626.621(6), Florida Statutes, which references Section 626.9541.

It is the violation of these statutes that provides the ground

for discipline.

40. Florida Administrative Code Rule 69B-231.100 provides

for a suspension of six months for a violation of Section

626.9541(1)(z), Florida Statutes. Florida Administrative Code

Rule 69B-231.160 recognizes aggravating and mitigating factors.

Relevant mitigating factors are the degree of actual and

potential injury to the victim, which is only $110 and a small

fraction of the actual cost of the required coverage (as

distinguished from the situation in Thomas ) and the lack of

previous discipline over 15 years. The only aggravating factor

is that Respondent earned a commission on the ancillary products

and only salary on the primary products. These factors suggest

that an appropriate penalty would be a 30-day suspension.

RECOMMENDATION

It is

RECOMMENDED that the Department of Financial Services enter

a final order finding Respondent guilty of one count of

violating Sectios 626.9541(1)(z)2. and 3., Florida Statutes,

and, thus, Section 626.621(6), Florida Statutes, and imposing a

thirty-day suspension.

DONE AND ENTERED this 30th day of April, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2008.

COPIES FURNISHED:

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

William Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

Jed Berman, Esquire

Infantino and Berman

Post Drawer 30

Winter Park, Florida 32790

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.