11-002793PL Department Of Financial Services vs. Dominick Paul Belinchak
 Status: Closed
Recommended Order on Monday, January 30, 2012.


View Dockets  
Summary: Petitioner proved the violations alleged; Respondent aided or assisted a public adjuster apprentice in soliciting business without Respondent's direct supervision or guidance. A period of suspension is recommended.

1FILED

2APR 272012

4CHIEF FINANCIAL OFFICER

7Docketed JEFF STATE ATWATER OF FWRIDA

13IN THE MATTER OF

17Case No. 115862-11-AG

20DOAH No. 11-2793PL

23DOMINICK PAUL BELINCHAK

26___ --- ,1

29FINAL ORDER

31This cause came on for consideration of and final agency action on the

44Recommended Order entered on January 30,2012, by Administrative Law Judge Lynne

56A. Quimby-Pennock after a formal hearing concluded on September 27, 2011.

67Respondent Dominick Paul Belinchak timely filed exceptions to which the Department

78timely filed a Response. The Recommended Order, the transcript of proceedings, the

90admitted exhibits, the exceptions and responses, and applicable law have all been

102considered in the promulgation of this Final Order.

110RULINGS ON THE EXCEPTIONS

114Belinchak's first exception contends that the statutory phrase "under the direct

125supervision and guidance of the supervisory public adjuster" is too and

136ambiguous to be found to require his physical presence when an apprentice public

149adjuster under apprenticeship to him solicits for or executes acontract for his services

162as a fUlly licensed public adjuster. Consequently, he contends, the ALJ erred by finding

176that he violated Section 626.8651 (11), Fla. Stat. because of the lack of his physical

191presence when his apprentice solicited for and executed a contract with a homeowner

204Filed April 27, 2012 3:26 PM Division of Administrative Hearings

214for the public adjusting services of Public Adjuster Hotline (PAH) then owned by

227Belinchak.

228Belinchak misapprehends the ALJ's findings and conclusions. It is clear from the

240Recommended Order that the lack of Belinchak's physical presence on the occasion in

253question is but one indicia of his lack of direct supervision of and guidance to his

269apprentice. Other indicia are that he routinely sent his apprentice out on solicitation runs

283with pre-signed contracts, indicating that he did not intend to supervise or guide the

297solicitations or contract executions, that the apprentice was located in Orlando, while

309Belinchak and PAH were located in Palm Bay, an hour away, thereby making his

323personal presence on any particular occasion difficult at best, and that Belinchak did not

337participate in the solicitation or execution in question by any other means such as

351telephone or text messaging. Thus, the ALJ concluded upon her review of the facts that

366Belinchak's supervision of his apprentice's work was "minimal at best". (RO, paragraph

3794.) In short, the ALJ correctly found as a matter of fact, supported by competent

394substantial record evidence in the form of the apprentice's testimony (Tr. 108-235), that

407Belinchak provided no form of direct supervision over or guidance to his apprentice

420during her solicitation of the homeowner and the subsequent execution of the contract

433between PAH and the homeowner. Accordingly, this exception is rejected.

443Belinchak's second exception is that the element of willfulness was not

454established by the evidence adduced at the hearing. In so positing, Belinchak's

466exception goes outside the record and makes arguments based on uncorroborated

477hearsay. That is an improper method of excepting to a finding of fact or a conclusion of

494law, and is disregarded. Moreover, the record clearly establishes that Belinchak's

505decisions to equip his apprentice with PAH business cards, brochures, a MagicJack

517telephone service, magnetic car signs with PAH advertising, pre-signed PAH contracts,

528and instructions to market PAH to various tradespersons when not working on a specific

542claim, were done intentionally, and not negligently or accidentally. Thus, there is

554competent substantial evidence in the record to support the Conclusion of Law that his

568actions in those regards were willful. Accordingly, this exception is rejected.

579Therefore, IT IS HEREBY ORDERED that the Findings of Fact and Conclusions

591of Law set forth in the Recommended Order are adopted as the Department's Findings

605of Fact and Conclusions of Law.

611However, the Department does not concur in the recommended penalty of a

623seven month suspension. Belinchak violated Sections 626.611 (13), 626.621 (12),

633626.851, Fla. Stat. and Rule 69B-220.051, FAC. Rule 69B-231.080 prescribes a six

645month suspension for violating Section 626.611(3), Fla. Stat.; Rule 69B-231.090

655prescribes a six month suspension for violating Section 626.621(12), Fla. Stat.; Rule

66769B-231.120 prescribes a six month suspension for willful violations of Insurance Code

679provisions such as Section 626.8651, Fla. Stat., that are not provided for elsewhere in

693the Florida Administrative Code, and Rule 69B-231.130 prescribes a six month

704suspension for the willful violation of department rules such as Rule 69B-220.051 (3)(a),

717FAC. All of those suspension periods are prescribed without consideration of the

729aggravating or mitigating factors set forth in Rule 69B-231.160, FAC. The ALJ found

742the aggravating factor of willfulness to be present in Belinchak's actions, but that factor

756is already present in two of those instances noted above, so it is disregarded as to

772those violations. However, as to the violations of Sections 626.611 (13) and

784626.621(12), Fla. Stat., consideration of the aggravating factor of willfulness is

795appropriate. In consideration of that factor, and abiding by the "Penalty Per Count"

808provisions of- Rule 69B-231.040, FAC., applicable to the one-count Administrative

818Complaint filed in this action, the imposition of an additional six month suspension

831period to the standard six month penalty is warranted to enforce the necessity of

845providing meaningful "direct supervision and guidance" to apprentice public adjusters,

855rather than, as here, simply using them as commercial marketers with little to no direct

870supervision or guidance in the solicitation and execution of public adjuster contracts.

882IT IS THEREFORE FURTHER ORDERED that Dominick Paul Belinchak's

891license(s) and eligibility for licensure under the Florida Insurance Code is suspended for

904a period of 12 months from the date hereof. Pursuant to Section 626.641, Fla. Stat.,

919during the suspension period Belinchak shall not engage or attempt or profess to

932engage in any transaction or business for which a license or appointment is required

946under the Florida Insurance Code, or directly or indirectly own, control, or be employed

960in any manner by any insurance agent or agency or adjuster or adjusting firm.

974DONE AND ORDERED this 11-t1\\ day of April, 2012.

983Robert C. Kneip, Chi of Staff

989NOTICE OF RIGHTS

992Any party to these proceedings adversely affected by this Order is entitled to seek

1006. review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla. R.

1022App. P. Review proceedings must be instituted by filing a petition or notice of appeal with

1038JUlie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building,

1050200 East Gaines Street Tallahassee, Florida, 32399-0390, and a copy of the same with

1064the appropriate district court of appeal, within thirty (30) days of rendition of this Order.

1079Filing may be accomplished via U.S. Mail, express overnight delivery, or hand delivery,

1092facsimile transmission, or electronic mail.

1097Copies to:

1099David J. Busch

1102Dominick Paul Belinchak

1105ALJ Lynne Quimby-Pennock

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/27/2012
Proceedings: Agency Final Order
PDF:
Date: 04/27/2012
Proceedings: (Agency) Final Order filed.
PDF:
Date: 01/30/2012
Proceedings: Recommended Order
PDF:
Date: 01/30/2012
Proceedings: Recommended Order (hearing held September 19 and September 27, 2011). CASE CLOSED.
PDF:
Date: 01/30/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/17/2012
Proceedings: Petitioner's Proposed Recommended Order filed.
Date: 12/15/2011
Proceedings: Transcript Volume I-II (not available for viewing) filed.
Date: 10/18/2011
Proceedings: Transcript (not available for viewing) filed.
Date: 09/27/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/21/2011
Proceedings: Notice of Hearing by Video Teleconference (hearing set for September 27, 2011; 2:00 p.m.; Melbourne and Tallahassee, FL).
PDF:
Date: 09/21/2011
Proceedings: Notice as to Hearing Date filed.
Date: 09/19/2011
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
PDF:
Date: 09/19/2011
Proceedings: Tower Hill Select Insurance Company's Motion to Quash Respondent's Subpoena Duces Tecum and Motion for Entry of Protective Order Regarding Deposition of Tonja Grey filed.
PDF:
Date: 09/19/2011
Proceedings: Respondent's Motion for Additional Documentation Based on Newly Discovered Information filed.
PDF:
Date: 09/16/2011
Proceedings: Respondent's Reply to Kevin Cote's Motion for Continuance and Protective Order filed.
PDF:
Date: 09/16/2011
Proceedings: Respondent's Reply to Motion for Protective Order filed.
PDF:
Date: 09/16/2011
Proceedings: Tower Hill Select Insurance Company's Motion to Quash Respondent's Subpoena Duces Tecum and Motion for Entry of Protective Order Regarding Deposition of Tonja Grey filed.
PDF:
Date: 09/15/2011
Proceedings: Motion for Protective Order filed.
PDF:
Date: 09/14/2011
Proceedings: Notice of Ex-parte Communication.
PDF:
Date: 09/13/2011
Proceedings: Letter to DOAH from K. Cote requesting more time to produce the items filed.
Date: 09/13/2011
Proceedings: Respondent's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 09/13/2011
Proceedings: Notice of Ex-parte Communication.
Date: 09/12/2011
Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 09/12/2011
Proceedings: Petitioner's Witness and Exhibit Lists filed.
PDF:
Date: 09/12/2011
Proceedings: Witness List for Dominick Belinchak filed.
PDF:
Date: 09/07/2011
Proceedings: Notice of Transfer.
PDF:
Date: 08/02/2011
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for September 19, 2011; 9:00 a.m.; Orlando and Tallahassee, FL; amended as to hours of hearing).
PDF:
Date: 07/25/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for September 19, 2011; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 07/19/2011
Proceedings: Motion for Continuance filed.
PDF:
Date: 07/13/2011
Proceedings: Order Severing Cases and Closing File (DOAH Case Nos. 11-2659 and 11-2793 are severed, and DOAH Case No. 11-2659PL is Closed).
PDF:
Date: 07/12/2011
Proceedings: Department's Motion to Relinquish Jurisdiction filed.
PDF:
Date: 06/14/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/14/2011
Proceedings: Notice of Hearing by Video Teleconference (hearing set for July 29, 2011; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 06/14/2011
Proceedings: Order of Consolidation (DOAH Case Nos. 11-2659PL and 11-2793PL).
PDF:
Date: 06/03/2011
Proceedings: Initial Order.
PDF:
Date: 06/02/2011
Proceedings: Agency referral filed.
PDF:
Date: 06/02/2011
Proceedings: Election of Proceeding filed.
PDF:
Date: 06/02/2011
Proceedings: Administrative Complaint filed.

Case Information

Judge:
LYNNE A. QUIMBY-PENNOCK
Date Filed:
06/02/2011
Date Assignment:
09/07/2011
Last Docket Entry:
04/27/2012
Location:
Mayo, Florida
District:
Northern
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
PL
 

Counsels

Related Florida Statute(s) (14):

Related Florida Rule(s) (7):