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

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.

FILED

APR 272012

CHIEF FINANCIAL OFFICER

Docketed JEFF STATE ATWATER OF FWRIDA

IN THE MATTER OF

Case No. 115862-11-AG

DOAH No. 11-2793PL

DOMINICK PAUL BELINCHAK

___ --- ,1

FINAL ORDER

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

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

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

Respondent Dominick Paul Belinchak timely filed exceptions to which the Department

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

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

considered in the promulgation of this Final Order.

RULINGS ON THE EXCEPTIONS

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

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

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

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

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

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

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

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

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

Belinchak.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

exception goes outside the record and makes arguments based on uncorroborated

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

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

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

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

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

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

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

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

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

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

of Fact and Conclusions of Law.

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

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

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

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

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

69B-231.120 prescribes a six month suspension for willful violations of Insurance Code

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

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

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

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

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

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

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

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

626.621(12), Fla. Stat., consideration of the aggravating factor of willfulness is

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

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

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

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

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

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

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

IT IS THEREFORE FURTHER ORDERED that Dominick Paul Belinchak's

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

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

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

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

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

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

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

Robert C. Kneip, Chi of Staff

NOTICE OF RIGHTS

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

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

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

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

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

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

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

facsimile transmission, or electronic mail.

Copies to:

David J. Busch

Dominick Paul Belinchak

ALJ Lynne Quimby-Pennock