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

- Date
- Proceedings
-
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.
- 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).
- 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: 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: 09/13/2011
- 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)
- Date: 09/12/2011
- Proceedings: Petitioner's Proposed Exhibits (exhibits not available for viewing)
-
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: 07/13/2011
- 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).
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
-
Dominick Belinchak
Address of Record -
David J. Busch, Esquire
Address of Record