05-001146PL Department Of Financial Services vs. Clinton Mitchell Alford Status: Closed Recommended Order on Wednesday, September 14, 2005.

Summary: Respondent committed nine separate and fraudulent misrepresentations regarding the terms of annuity policies sold to nine customers. Recommend revocation of Respondent`s license and an administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1146PL

)

CLINTON MITCHELL ALFORD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 20 and 21, 2005, in Orlando, Florida, before Bram D. E.

Canter, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Calvin J. Domenico , Jr. , Esquire

W illiam R. Klein , P.A.

1900 Main Street, Suite 310

Sarasota, Florida 34236

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses alleged in

the Amended Administrative Complaint, and, if so, the penalty

that should be imposed.

PRELIMINARY STATEMENT

In a thirteen - count Amended Administrative Complaint dated

October 1, 2003, the Department of Financial Services

("Department") charged Clinton Mitchell Alford with having

violated several state laws regulating insurance agents and

involving misrepresenta tions and forgery related to the sale of

variable annuity policies. At the final hearing, the Department

stipulated to the dismissal of Counts I, III, and VI of its

Amended Administrative Complaint (hereinafter referred to as the

"Complaint").

Count II of the Complaint, regarding an annuity sold to

Peter Dempsey, alleges that Mr. Alford prepared an annuity

application without the knowledge or consent of Mr. Dempsey,

made an unauthorized withdrawal from Mr. Dempsey's bank account

to fund the annuity, and la ter forged a request by Mr. Dempsey

to cancel the annuity.

Counts IV and V of the Complaint, involving annuities sold

to Barbara Kirkland and Richard Wissusik, respectively, allege

that Mr. Alford misrepresented a key term of the annuity

policies and forge d Ms. Kirkland's and Mr. Wissusik's signatures

on documents to conceal the misrepresentations.

Counts VII through XIII of the Complaint, involving

annuities sold to Beaver Street Foundation, Inc.; Riverside and

Associates, Ltd.; the Alfred Frisch Living Tr ust (three separate

annuities); the Steven M. Frisch Trust; and the Hans Frisch

Living Trust, allege that Mr. Alford misrepresented a key term

of the annuity policies and fabricated documents to conceal the

misrepresentations.

The Department presented the testimony of Samantha Daniels,

an investigator with the Department; Emory Mullen, a complaint

analyst with Lincoln Beneficial Life Insurance Company; Thomas

Vastrick, an expert in forensic document examination; and four

persons to whom Mr. Alford is allege d to have made

misrepresentations: Barbara Kirkland, Paulette Rocher, Richard

Wissusik, and Peter Dempsey. The Department's Exhibits 1

through 6, 8 through 10, 12, 12A through 12G, 17, and 27 through

44 were received into evidence. The Respondent presen ted no

witnesses or exhibits. Mr. Alford did not attend the hearing.

The Department was permitted to conduct a post - hearing

deposition of Peter Dempsey and to file the transcript of the

deposition with the Division as part of the case record. The

Transcr ipt of the Dempsey deposition was filed August 24, 2005.

A t hree - volume Transcript of the hearing was filed with the

Division. The parties timely filed proposed findings of fact

and conclusions of law on September 6, 2005, which have been

considered in th e preparation of this Recommended Order.

FINDINGS OF FACT

At the final hearing, the Department made allegations in

its opening statement and presented evidence regarding wrongful

acts of the Respondent that were not specifically alleged in its

Complaint. As explained in the Conclusions of Law, below, only

the specific factual allegations in the Department's Complaint

are properly in dispute in this case. The f indings of f act in

this Recommended Order must be confined to the proof or lack of

proof of tho se factual allegations. Evidence regarding wrongful

acts of the Respondent not specifically alleged in the

Department's Complaint will not support a finding of fact or a

recommendation for disciplinary action.

Based on the oral and documentary evidence pr esented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

Findings Applicable to All Counts

1. The Department is the state agency charged with

administration of the Insurance Code of the State of Fl orida,

including Chapter 626, Florida Statutes (2004).

2. Clinton Mitchell Alford is licensed in Florida as an

insurance agent. He holds license number A003524, under which

he is authorized to handle several lines of insurance, including

variable annuiti es.

3. Mr. Alford was employed by and maintained an office at

Mercantile Bank in Orlando, Florida. Customers of Mercantile

Bank were sometimes directed to Mr. Alford by bank employees if

the customers had questions about or expressed an interest in

inves tment products that Mr. Alford handled.

4. Mr. Alford was also an employee of UVEST Financial

Services ("UVEST"), a financial investment firm that provides

investment advisory services.

5. Mr. Alford was not an employee of Lincoln Benefit Life

Company ( "Lincoln Life") of Lincoln, Nebraska, but he was an

authorized agent for Lincoln Life. All of the counts in the

Department's Complaint involve annuities handled by Mr. Alford

as the agent for Lincoln Life.

6. Lincoln Life paid commissions to UVEST when M r. Alford

acted as agent in the sale of a Lincoln Life annuity policy.

How those commissions were then divided between Mr. Alford and

UVEST would have been pursuant to an agreement between Mr.

Alford and UVEST. No evidence was presented regarding the ter ms

of that agreement.

7. Mr. Alford also received "production bonuses" from

Lincoln Life, in the form of cash and a vacation cruise, for the

sale of policies for which Mr. Alford acted as the agent.

8. The annuity policies sold by Lincoln Life that are the

subject of this case involved the deposit of "initial premiums"

with Lincoln by the purchasers of the annuities, in return for

which the purchasers, or "annuitants," would receive a

guaranteed rate of interest for a stated time period, the

"guarantee period." Upon the death of the annuitant, the

policies provide a stream of payments to the annuitant's

beneficiaries.

9. Each annuity policy involved in this case included

terms to discourage the early withdrawal of funds deposited with

Lincoln Life. In general, an annuitant could withdraw his or

her money from Lincoln Life after the guarantee period without

restriction. If an annuitant withdrew funds before the end of

the guarantee period, however, a "surrender charge," also called

a "withdrawal charge ," would be imposed by Lincoln Life.

10. The surrender charge was a stated percentage of the

funds withdrawn. This surrender charge was greatest in the

first year of the guarantee period and then decreased in

subsequent years so that a withdrawal near th e end of the

guarantee period had the smallest associated surrender charge.

The shorter the guarantee period in which a surrender charge

would be imposed, the more advantageous and attractive the

annuity would be to a customer.

11. The procedure generall y applicable to the sale of

annuity policies by Lincoln Life was as follows: an annuity

application would be prepared by an agent in a meeting with the

customer; the agent would then send the application to Lincoln

Life along with a check for the initial premium to be deposited

to the customer's account; Lincoln Life would determine whether

the application was sufficient and, if so, print out a policy

for the customer; Lincoln Life would then send the policy to the

agent for delivery to the customer.

12. When Lincoln Life discovered discrepancies in annuity

application and policy documents, as described below, it honored

the terms of the policies as represented to the annuitants and

allowed the annuitants to elect to terminate the policies

without penalty. No damages other than frustration and anxiety

were suffered by these annuitants as a result of the alleged

unlawful acts of Mr. Alford. They suffered no financial losses.

Count II - Peter Dempsey

13. In November 2002, Lincoln Life received an applicati on

for an annuity policy prepared and signed by Mr. Alford that

purported to be on behalf of Peter Dempsey and signed by Mr.

Dempsey. Following its receipt of the annuity application for

Mr. Dempsey and a $100,000 cashier's check issued by Mercantile

Bank for the initial premium payment, Lincoln Life issued

annuity policy LBF1111304 to Mr. Dempsey.

14. Peter Dempsey says he has no recollection of ever

meeting Mr. Alford.

15. Mr. Dempsey says he had no knowledge of and did not

consent to the annuity appli cation that was received by Lincoln

Life.

16. Mr. Dempsey says he had no knowledge of and did not

consent to the withdrawal of $100,000 from his Mercantile Bank

account and the submittal of a cashier's check in that amount to

Lincoln Life for the purchase of an annuity policy.

17. Lincoln Life subsequently received a hand - written

letter purported to be from Mr. Dempsey and signed by Mr.

Dempsey requesting that his annuity policy be canceled. Mr.

Dempsey denies creating or signing the letter. The lette r was

undated, but refers to a "10 day free look" allowed under the

terms of the annuity policy, suggesting that the letter was

prepared soon after the issuance of the annuity policy by

Lincoln Life. Lincoln Life cancelled Mr. Dempsey's policy and

returne d his $100,000 premium payment.

18. Pursuant to the policies and procedures of Lincoln

Life, Mr. Alford could have received credit for the sale of a

Lincoln Life policy to Mr. Dempsey even though the policy was

subsequently cancelled. Although any commi ssion paid to an

agent by Lincoln Life would normally have to be repaid when a

policy was cancelled, the agent could still receive credit

toward a production bonus.

19. The theory behind Count II of the Department's

Complaint is that Mr. Alford, in order to get credit from

Lincoln Life toward a production bonus, created the bogus

application for Mr. Dempsey, managed to withdraw $100,000 from

Mr. Dempsey's bank account to send to Lincoln Life with the

application, then quickly cancelled the policy with a fo rged

letter and deposited the $100,000 back into Mr. Dempsey's bank

account. There are some holes in this theory.

20. A deposit of $101,428 was made to Mr. Dempsey's

Mercantile Bank account on January 7, 2003, using a deposit slip

pre - printed with Mr. De mpsey's name. The deposit slip indicates

that the total amount deposited comprised three checks: $100,000

(from Lincoln Life), $950 (a check to Mr. Dempsey's wife) and

$478 (a check to Mr. Dempsey). The use of a personal deposit

slip and the deposit of t wo other checks strongly suggests that

Mr. Dempsey or his wife (it was a joint account) made the

deposit, not Mr. Alford. The Department did not present

evidence to the contrary.

21. Mr. Dempsey says he was not aware of the $100,000

transaction until it was brought to his attention by the

Department in 2004 in the course of its investigation of annuity

policies for which Mr. Alford acted as agent. However, if Mr.

Dempsey was not involved in the $100,000 transaction, it is

difficult to understand why he w as not perplexed and did not

make inquiries to find out why he had received a $100,000 check

from Lincoln Life, a company he supposedly had no dealings with.

There is a more credible explanation - Mr. Dempsey purchased the

Lincoln Life annuity policy in 20 02 and then cancelled it, but

he has since forgotten that he did.

22. Mr. Dempsey was 80 years old in 2004 when the

Department interviewed him as part of its investigation of

Mr. Alford's alleged unlawful acts. He admitted that his memory

sometimes fails him. His mental acuity might also be

diminished. He stated that it was not his signature on a

document that the Department's investigator testified she saw

him sign in her presence. Obviously, if Mr. Dempsey does not

recognize his own signature, it cal ls into question his

testimony that the signatures on the Lincoln Life annuity

application and cancellation letter were not authentic.

23. It appears plausible from the record evidence that

when the Department contacted Mr. Dempsey in 2004 to inquire

abou t his dealings with Mr. Alford, Mr. Dempsey denied any

knowledge of the Lincoln Life annuity because he had forgotten

the transaction. The Department accepted Mr. Dempsey's denial

because the Department had other evidence of wrongdoing by Mr.

Alford. The Department deduced, therefore, that Mr. Alford had

fabricated and forged Mr. Dempsey's annuity documents and

withdrew the $100,000 from Mr. Dempsey's bank account to fund

the annuity.

24. The circumstances surrounding Mr. Dempsey's annuity

policy remain uncertain on this record. The Department's

evidence was not clear and convincing that Mr. Alford prepared

the annuity application without Mr. Dempsey's knowledge or

consent, withdrew money from Mr. Dempsey's bank account without

Mr. Dempsey's knowledge or consent, or forged a letter

requesting that the annuity policy be cancelled.

Count IV - Barbara Kirkland

25. Mr. Alford was the insurance agent who assisted

Barbara Kirkland in purchasing an annuity policy from Lincoln

Life in January 2004. The policy n umber was LBF1129343.

26. Mr. Alford told Ms. Kirkland that the guarantee period

for the Lincoln Life annuity she purchased, during which she

would not be able to withdraw her money without a surrender

charge, was two years. That was a misrepresentation because

Lincoln Life did not sell an annuity with a guarantee period of

only two years. The actual guarantee period for the annuity

purchased by Ms. Kirkland was six years.

27. In Ms. Kirkland's presence, Mr. Alford filled out a

Lincoln Life annuity appl ication form for Ms. Kirkland that

contained, along with other information, the two - year guarantee

period he had misrepresented to her. Ms. Kirkland signed the

application form.

28. Based on Mr. Alford's misrepresentation that the

guarantee period was tw o years, Ms. Kirkland purchased an

annuity policy from Lincoln Life and deposited an initial

premium of $100,000.

29. Ms. Kirkland would not have purchased the Lincoln Life

annuity but for Mr. Alford's misrepresentation that the

guarantee period was only two years.

30. Lincoln Life did not receive the annuity application

Mr. Alford prepared in the presence of Ms. Kirkland and that

Ms. Kirkland signed. Lincoln Life received a different

application that indicated the correct six - year guarantee period

offer ed by Lincoln Life under the particular annuity policy

purchased by Ms. Kirkland.

31. Ms. Kirkland had no knowledge of and did not consent

to the altered annuity application that was received by Lincoln

Life.

32. Thomas Vastrick, an expert forensic docum ent examiner,

compared the hand printing on Ms. Kirkland's altered application

with samples of Mr. Alford's hand printing and concluded that

the hand printing had "common authorship." Therefore, it was

proven that Mr. Alford prepared the altered Kirkland

application.

33. Mr. Alford's preparation of the altered application

proves that his statement to Ms. Kirkland that the guarantee

period was two years was not merely a mistake, but was a willful

misrepresentation and a willful deception.

34. However, Mr. Alford's alteration of the annuity

application will not support a finding that he lacked fitness or

trustworthiness, or that he engaged in a fraudulent or dishonest

practice, because the Department did not allege in its Complaint

that Mr. Alford altered M s. Kirkland's annuity application.

35. Similarly, evidence presented by the Department that

Mr. Alford altered the annuity policy issued by Lincoln Life

before delivering it to Ms. Kirkland in order to conceal the

six - year guarantee period in the policy , will not support a

finding of fact because the Department did not allege in its

Complaint that Mr. Alford altered the annuity policy.

36. The Department alleged in its Complaint that

Mr. Alford forged Ms. Kirkland's signature on a "related

document." T he Respondent stipulated that the signature on the

altered application was a forgery. The Department presented no

evidence, however, regarding the identity of the person who

forged Ms. Kirkland's signature. The circumstantial evidence in

the record is no t sufficient in this disciplinary case to prove

that Mr. Alford was the person who forged Ms. Kirkland's

signature on the Benefits Summary.

Count V - Richard Wissusik

37. Mr. Alford was the insurance agent that assisted

Richard Wissusik in purchasing an a nnuity policy from Lincoln

Life in March 2003. The policy number was LBF1118978.

38. Mr. Alford told Mr. Wissusik that the guarantee period

for the annuity he purchased from Lincoln Life, during which he

would not be able to withdraw his money without a surrender

charge, was two years. That was a misrepresentation because

Lincoln Life did not sell an annuity with a guarantee period of

only two years. The actual guarantee period for the annuity

purchased by Mr. Wissusik was five years.

39. In Mr. Wissus ik's presence, Mr. Alford filled out a

Lincoln Life annuity application form for Mr. Wissusik that

contained, along with other information, the two - year guarantee

period he had misrepresented to Mr. Wissusik. Mr. Wissusik

signed the application form.

40. Based on Mr. Alford's misrepresentation that the

guarantee period was two years, Mr. Wissusik purchased an

annuity policy from Lincoln Life with an initial premium deposit

of $30,016.73.

41. Mr. Wissusik would not have purchased the Lincoln Life

annuity but for Mr. Alford's misrepresentation that the

guarantee period was only two years.

42. Mr. Alford did not send the annuity application he

prepared in the presence of Mr. Wissusik and that was signed by

Mr. Wissusik to Lincoln Life. Lincoln Life receive d a different

application that indicated the correct five - year guarantee

period offered by Lincoln Life under the particular annuity

policy purchased by Mr. Wissusik.

43. Mr. Wissusik had no knowledge of and did not consent

to the altered annuity applicat ion that was received by Lincoln

Life.

44. Thomas Vastrick, an expert forensic document examiner,

compared the hand printing on Mr. Wissusik's altered application

with samples of Mr. Alford's hand printing and concluded that

the hand printing had "common authorship." Therefore, it was

proven that Mr. Alford prepared the altered Wissusik

application.

45. Mr. Alford's preparation of the altered application

proves that his statement to Mr. Wissusik that the guarantee

period was two years was not merely a m istake, but was a willful

misrepresentation and a willful deception.

46. However, Mr. Alford's alteration of the annuity

application to indicate a five - year guarantee period will not

support a finding that he lacked fitness or trustworthiness, or

that he engaged in a fraudulent or dishonest practice, because

the Department did not allege in its Complaint that Mr. Alford

altered the guarantee period stated in the application.

47. Similarly, evidence presented by the Department that

Mr. Alford altered the a nnuity policy issued by Lincoln Life

before delivering it to Mr. Wissusik in order to conceal the

five - year guarantee period in the policy, will not support a

finding of fact because the Department did not allege in its

Complaint that Mr. Alford altered th e annuity policy.

48. The Department alleged in its Complaint that

Mr. Alford forged Mr. Wissusik's signature on the altered

annuity application. The Respondent stipulated that the

signature on the altered application was a forgery. The

Department prese nted no evidence, however, regarding the

identity of the person who forged Mr. Wissusik's signature. The

circumstantial evidence in the record is not sufficient in this

disciplinary case to prove that Mr. Alford was the person who

forged Mr. Wissusik's si gnature on the altered annuity

application.

Count VII - Beaver Street Foundation, Inc.

49. Mr. Alford was the insurance agent that assisted

Beaver Street Foundation, Inc. ("the Foundation"), in purchasing

an annuity policy from Lincoln Life in January 200 3. The policy

number was LBF1114198.

50. Paulette Rocher is an employee of Beaver Street

Fisheries and was the administrative assistant to Hans Frisch

and Alfred Frisch, the owners of Beaver Street Fisheries. Hans

Frisch and Alfred Frisch are directors of the Foundation.

Ms. Rocher worked directly with Mr. Alford in discussing by

telephone the terms of the Lincoln Life annuity policy purchased

by the Foundation.

51. Mr. Alford told Ms. Rocher that the guarantee period

for the annuity purchased by the F oundation, during which it

would not be able to withdraw its money from Lincoln Life

without a surrender charge, was two years. That was a

misrepresentation because Lincoln Life did not sell an annuity

with a guarantee period of only two years. The actua l guarantee

period for the annuity purchased by the Foundation was five

years.

52. Based on Mr. Alford's misrepresentation that the

guarantee period was two years, the Foundation purchased an

annuity policy with Lincoln Life with an initial premium deposi t

of $560,000.

53. The Foundation would not have purchased the Lincoln

Life annuity but for Mr. Alford's misrepresentation that the

guarantee period was only two years.

54. Based on her discussions with Mr. Alford, and using a

Lincoln Life annuity applic ation form, Ms. Rocher typed in the

information for the Foundation, including the two - year guarantee

period. Hans Frisch signed the application on behalf of the

Foundation.

55. Mr. Alford did not send the annuity application typed

by Ms. Rocher and signe d by Hans Frisch to Lincoln Life.

Lincoln Life received a hand - written application that indicated

the correct five - year guarantee period offered by Lincoln Life

under the particular annuity policy purchased by the Foundation.

56. The Foundation had no kn owledge of and did not consent

to the altered annuity application that was received by Lincoln

Life.

57. Thomas Vastrick, an expert forensic document examiner,

compared the hand printing on six altered annuity applications

with samples of Mr. Alford's han d printing and concluded that

Mr. Alford had prepared the six altered applications. However,

Mr. Vastrick apparently was not provided the Foundation's

altered annuity application to include in his analysis.

Nevertheless, I find that Mr. Alford prepared t he altered

Foundation annuity application based on 1) the obvious

similarity of the hand printing, 2) the pattern established by

Mr. Alford's fabrication of annuity applications for six other

annuitants under almost identical circumstances, and 3) Mr.

Alfo rd's submittal of the Foundation's altered application to

Lincoln Life.

58. Mr. Alford's preparation of the altered application

proves that his statement to Ms. Rocher regarding the two - year

guarantee period was a willful misrepresentation and a willful

d eception.

59. However, Mr. Alford's alteration of the annuity

application to indicate a five - year guarantee period will not

support a finding that he lacked fitness or trustworthiness, or

that he engaged in a fraudulent or dishonest practice, because

the Department did not allege in its Complaint that Mr. Alford

altered the annuity application.

60. There was some evidence presented by the Department

regarding the forgery of Hans Frisch's signature on the altered

annuity application. The Department, howev er, did not allege in

its Complaint that Mr. Alford forged Han Frisch's signature.

Therefore, no finding is made as to forgery.

61. The Department alleged in Count VII of its Complaint

that Mr. Alford "fabricated an Annuity Data document" for the

Foundat ion. The Annuity Data document was admitted into

evidence as part of Petitioner's Exhibit 27, but there was no

testimony elicited from any witness to explain who created the

document, its purpose, how it was used, or who received it. The

evidence in the record is insufficient to prove Mr. Alford

fabricated the document.

Count VIII - Riverside and Associates, Ltd.

62. Mr. Alford was the insurance agent that assisted

Riverside and Associates, Ltd. ("Riverside"), in purchasing an

annuity policy from Lincol n Life in January 2003. The policy

number was LBF1115101.

63. Paulette Rocher was the administrative assistant to

Hans Frisch and Alfred Frisch who were officers of Riverside.

Ms. Rocher worked directly with Mr. Alford by telephone in

discussing the ter ms of the Lincoln Life annuity policy

purchased by Riverside.

64. Mr. Alford told Ms. Rocher that the guarantee period

for the annuity purchased by Riverside, during which it would

not be able to withdraw its money from Lincoln Life without a

surrender ch arge, was two years. That was a misrepresentation

because Lincoln Life did not sell an annuity with a guarantee

period of only two years. The actual guarantee period for the

annuity purchased by Riverside was five years.

65. Based on her discussions wit h Mr. Alford, and using a

Lincoln Life annuity application form, Ms. Rocher typed in the

information for Riverside, including the two - year guarantee

period. Alfred Frisch signed the application on behalf of the

Riverside.

66. Based on Mr. Alford's misrep resentation that the

guarantee period was two years, Riverside purchased an annuity

policy with Lincoln Life with an initial deposit of $900,000.

67. Riverside would not have purchased the Lincoln Life

annuity but for Mr. Alford's misrepresentation that t he

guarantee period was only two years.

68. Mr. Alford did not send the annuity application typed

by Ms. Rocher and signed by Alfred Frisch to Lincoln Life.

Lincoln Life received a hand - written application that indicated

the correct five - year guarantee p eriod offered by Lincoln Life

under the particular annuity policy purchased by Riverside.

69. Riverside had no knowledge of and did not consent to

the altered annuity application that was received by Lincoln

Life.

70. Thomas Vastrick, an expert forensic document examiner,

compared the hand printing on six altered annuity applications

with samples of Mr. Alford's hand printing and concluded that

Mr. Alford had prepared the six altered applications. However,

Mr. Vastrick apparently was not provided Riversi de's altered

annuity application to include in his analysis. Nevertheless, I

find that Mr. Alford prepared the altered Riverside annuity

application based on 1) the obvious similarity of the hand

printing, 2) the pattern established by Mr. Alford's fabric ation

of annuity applications for six other annuitants under almost

identical circumstances, and 3) Mr. Alford's submittal of

Riverside's altered application to Lincoln Life.

71. Mr. Alford's preparation of the altered application

proves that his statemen t to Riverside regarding the two - year

guarantee period was a willful misrepresentation.

72. However, Mr. Alford's alteration of the annuity

application to indicate a five - year guarantee period will not

support a finding that he lacked fitness or trustwort hiness, or

that he engaged in a fraudulent or dishonest practice, because

the Department did not allege in its Complaint that Mr. Alford

altered the annuity application.

73. There was some evidence presented by the Department

regarding the forgery of Alfr ed Frisch's signature. The

Complaint, however, did not allege that Mr. Alford had forged

Alfred Frisch's signature. Therefore, no finding is made as to

forgery.

74. The Department alleged in Count VIII of its Complaint

that Mr. Alford "fabricated an Ann uity Data document" for the

Riverside. The Annuity Data document was admitted into evidence

as part of Petitioner's Exhibit 29, but there was no testimony

elicited from any witness to explain who created the document,

its purpose, how it was used, or who received it. The evidence

in the record is insufficient to prove Mr. Alford fabricated the

document.

Counts IX, XII, and XIII - Alfred Frisch Living Trust

75. Three separate Lincoln Life annuity policies were

purchased by the Alfred Frisch Living Trust i n February, May,

and June 2003. Mr. Alford was the insurance agent for all three

annuities. The policy numbers for the three annuity policies

were LBF1116531 (issued February 26, 2003), LBF1121912 (issued

May 29, 2003), and LBF1121839 (issued June 16, 20 03).

76. Paulette Rocher was the administrative assistant to

Hans Frisch and Alfred Frisch. Alfred Frisch died in

December 2004. Ms. Rocher worked directly with Mr. Alford by

telephone in discussing the terms of the three Lincoln Life

annuity policies purchased by the Alfred Frisch Living Trust.

Mr. Alford told Ms. Rocher that the guarantee period for the

annuity policies purchased by the Alfred Frisch Living Trust,

during which the Trust would not be able to withdraw its money

from Lincoln Life withou t a surrender charge, was two years.

That was a misrepresentation because Lincoln Life did not sell

an annuity with a guarantee period of only two years. The

actual guarantee period for the three annuity policies purchased

by the Alfred Frisch Living Tru st was five years.

77. Based on her discussions with Mr. Alford, and using a

Lincoln Life annuity application form, Ms. Rocher typed in the

information on the annuity application for the Alfred Frisch

Living Trust, including the two - year guarantee period. Alfred

Frisch signed all three applications on behalf of the Trust.

78. Based on the misrepresentations by Mr. Alford that the

guarantee period was two years, the Alfred Frisch Living Trust

purchased the three annuity policies with Lincoln Life with

ini tial premium deposits of $375,000 for policy LBF1116531;

$330,000 for policy LBF1121912; and $290,000 for policy

LBF1121839.

79. The Alfred Frisch Living Trust would not have

purchased the Lincoln Life annuity policies but for the

misrepresentations of Mr . Alford that the guarantee period was

only two years.

80. Mr. Alford did not send the three annuity applications

typed by Ms. Rocher for the Alfred Frisch Living Trust to

Lincoln Life. Lincoln Life received different hand - written

applications that conta ined the correct five - year guarantee

period offered by Lincoln Life under the particular annuity

policies purchased by the Alfred Frisch Living Trust.

81. The Alfred Frisch Living Trust had no knowledge of and

did not consent to the altered annuity applic ations that were

received by Lincoln Life.

82. Thomas Vastrick, an expert forensic document examiner,

compared the hand printing on the altered annuity applications

dated January 31, 2003 , and May 27, 2003 , for the Alfred Frisch

Living Trust with samples of Mr. Alford's hand printing and

concluded that they were of "common authorship." Therefore, it

was proven that Mr. Alford prepared these two altered

applications for the Alfred Frisch Living Trust.

83. Mr. Vastrick apparently was not provided the alter ed

annuity application for the third annuity policy purchased by

the Alfred Frisch Living Trust (LBF1121839) to include in his

hand printing analysis. Nevertheless, I find that Mr. Alford

prepared the third altered annuity application based on 1) the

obvi ous similarity of the hand printing, 2) the pattern

established by Mr. Alford's fabrication of annuity applications

for six other annuitants under almost identical circumstances,

and 3) Mr. Alford's submittal of the third altered application

for the Alfred Frisch Living Trust to Lincoln Life.

84. Mr. Alford's preparation of the altered application

proves that he knew his statements to Ms. Rocher regarding the

two - year guarantee period in the three annuity policies were

willful misrepresentations and willfu l deceptions.

85. However, Mr. Alford's alteration of the annuity

applications to indicate a five - year guarantee period will not

support findings that he lacked fitness or trustworthiness, or

that he engaged in a fraudulent or dishonest practice, because

the Department did not allege in its Complaint that Mr. Alford

altered the annuity application.

86. There was some evidence presented by the Department

regarding the forgery of Alfred Frisch's signature on the

altered annuity application for the Alfred Fr isch Living Trust.

The Complaint, however, did not allege that Mr. Alford had

forged Alfred Frisch's signature. Therefore, no finding is made

as to forgery.

87. The Department alleged in Counts IX, XII, and XIII of

its Complaint that Mr. Alford had "fab ricated an Annuity Data

document" for each of the three Alfred Frisch Living Trust

annuities. The Annuity Data documents were admitted into

evidence as part of Petitioner's Exhibits 31, 37, and 39,

respectively, but there was no testimony elicited from an y

witness to explain who created the documents, their purpose, how

they were used, or who received them. The evidence in the

record is insufficient to prove Mr. Alford fabricated the

documents.

Count X - Steven M. Frisch Trust

88. Stephen M. Frisch is th e grandson of Hans Frisch.

Mr. Alford was the insurance agent that assisted the Steven M.

Frisch Trust in purchasing an annuity policy from Lincoln Life

in May 2003. The policy number was F0187626.

89. Paulette Rocher was the administrative assistant to

Alfred Frisch and Hans Frisch. Ms. Rocher worked directly with

Mr. Alford in discussing by telephone the terms of the Lincoln

Life annuity policy purchased by the Steven M. Frisch Trust.

Mr. Alford told Ms. Rocher that the guarantee period for the

ann uity purchased by the Steven M. Frisch Trust, during which it

would not be able to withdraw its money from Lincoln Life

without a surrender charge, was two years. That was a

misrepresentation because Lincoln Life did not sell an annuity

with a guarantee p eriod of only two years. The actual guarantee

period for the annuity purchased by the Steven M. Frisch Trust

was five years.

90. Based on her discussions with Mr. Alford, and using a

Lincoln Life annuity application form, Ms. Rocher typed in the

informat ion for the Steven M. Frisch Trust, including the two -

year guarantee period. Eldad Frisch and Benjamin Frisch (the

father and uncle of Steven Frisch) signed the annuity

application on behalf of the Steven M. Frisch Trust.

91. Based on Mr. Alford's misrep resentation that the

guarantee period was two years, the Steven M. Frisch Trust

purchased a Lincoln Life annuity policy with an initial premium

deposit of $50,000.

92. The Steven M. Frisch Trust would not have purchased

the Lincoln Life annuity but for Mr . Alford's misrepresentation

that the guarantee period was only two years.

93. Mr. Alford did not send the annuity application typed

by Ms. Rocher and signed by Eldad Frisch and Benjamin Frisch to

Lincoln Life. Lincoln Life received a different applicati on

that contained the correct five - year guarantee period offered by

Lincoln Life under the particular annuity policy purchased by

the Steven M. Frisch Trust.

94. The Steven M. Frisch Trust had no knowledge of and did

not consent to the altered annuity app lication that was received

by Lincoln Life.

95. Thomas Vastrick, an expert forensic document examiner,

compared the hand printing on the altered application for the

Steven M. Frisch Trust with samples of Mr. Alford's hand

printing and concluded that the h and printing had "common

authorship." Therefore, it was proven that Mr. Alford prepared

the altered application for the Steven M. Frisch Trust.

96. Mr. Alford's preparation of the altered application

proves that his statement to Ms. Rocher regarding the two - year

guarantee period was a willful misrepresentation and a willful

deception.

9 7 . However, Mr. Alford's alteration of the annuity

application to indicate a five - year guarantee period will not

support a finding that he lacked fitness or trustworthine ss, or

that he engaged in a fraudulent or dishonest practice, because

the Department did not allege in its Complaint that Mr. Alford

altered the annuity application.

9 8 . There was some evidence presented by the Department

regarding the forgery of Steven Frisch's signature. The

Complaint, however, did not allege that Mr. Alford had forged

Steven Frisch's signature. Therefore, no finding is made as to

forgery.

9 9 . The Department alleged in Count X of its Complaint

that Mr. Alford had "fabricated an Annu ity Data document" for

the Steven M. Frisch Trust. The Annuity Data document was

admitted into evidence as part of Petitioner's Exhibit 33, but

there was no testimony elicited from any witness to explain who

created the document, its purpose, how it was u sed, or who

received it. There is insufficient evidence in the record to

prove Mr. Alford fabricated the document.

Count XI - Hans Frisch Living Trust

100 . Mr. Alford was the insurance agent that assisted the

Hans Frisch Living Trust in purchasing an ann uity policy from

Lincoln Life in May 2003. The policy number was F0187627.

10 1 . Paulette Rocher is the administrative assistant to

Hans Frisch and Alfred Frisch. Ms. Rocher who worked directly

with Mr. Alford in discussing the terms of the annuity polic y

purchased by the Hans Frisch Living Trust. Mr. Alford told Ms.

Rocher that the guarantee period for the annuity purchased by

the Hans Frisch Living Trust, during which it would not be able

to withdraw its money from Lincoln Life without a surrender

char ge, was two years. That was a misrepresentation because

Lincoln Life did not sell an annuity with a guarantee period of

only two years. The actual guarantee period for the annuity

purchased by the Hans Frisch Living Trust was five years.

10 2 . Based on h er discussions with Mr. Alford, and using a

Lincoln Life annuity application form, Ms. Rocher typed in the

information for the Hans Frisch Living Trust, including the

two - year guarantee period. Hans Frisch signed the annuity

application on behalf of the Trust.

10 3 . Based on Mr. Alford's misrepresentations that the

guarantee period was two years, the Hans Frisch Living Trust

purchased an Lincoln Life annuity policy with an initial deposit

of $80,000.

10 4 . The Hans Frisch Living Trust would not have purch ased

the Lincoln Life annuity but for Mr. Alford's misrepresentation

that the surrender period was only two years.

10 5 . Mr. Alford did not send the annuity application typed

by Ms. Rocher and signed by Hans Frisch to Lincoln Life.

Lincoln Life received a different application that indicated the

correct five - year guarantee period offered by Lincoln Life under

the particular annuity policy purchased by the Hans Frisch

Living Trust.

10 6 . The Hans Frisch Living Trust had no knowledge of and

did not consent t o the altered annuity application that was

received by Lincoln Life.

10 7 . Thomas Vastrick, an expert forensic document

examiner, compared the hand printing on the altered application

for the Hans Frisch Living Trust with samples of Mr. Alford's

hand print ing and concluded that the hand printing had "common

authorship." Therefore, it was proven that Mr. Alford prepared

the altered application for the Hans Frisch Living Trust.

10 8 . Mr. Alford's preparation of the altered application

proves that his statem ent to the Hans Frisch Living Trust

regarding the two - year guarantee period was a willful

misrepresentation and a willful deception.

10 9 . However, Mr. Alford's alteration of the annuity

application to indicate a five - year guarantee period will not

support a finding that he lacked fitness or trustworthiness, or

that he engaged in a fraudulent or dishonest practice, because

the Department did not allege in its Complaint that Mr. Alford

altered the annuity application.

1 10 . There was some evidence presented by the Department

regarding the forgery of Hans Frisch's signature on the altered

annuity application. The Complaint, however, did not allege

that Mr. Alford had forged Han Frisch's signature. Therefore,

no finding is made as to forgery.

11 1 . The Depart ment alleged in Count XI of its Complaint

that Mr. Alford "fabricated an Annuity Data document" for the

Hans Frisch Living Trust. The Annuity Data document was

admitted into evidence as part of Petitioner's Exhibit 35, but

there was no testimony elicited from any witness to explain who

created the document, its purpose, how it was used, or who

received it. There is insufficient evidence in the record to

prove Mr. Alford fabricated the document.

CONCLUSIONS OF LAW

11 2 . The Division of Administrative Heari ngs has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (2004).

11 3 . An administrative complaint seeking disciplinary

action must allege the specific acts or omissions that form the

grounds for the violations charged in the administrative

complaint. An agency cannot find a licensee guilty of a charged

violation based on evidence of acts or omissions not alleged in

the administrative complaint. Ghani v. Department of Health ,

714 So. 2d 1113 (Fla. 1st DCA 1998); Cottrill v. Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996).

11 4 . The Cottrill case involved an administrative

complaint that identified certain statutes that the agency

alleged ha d been violated, but did not allege the facts that

constituted violations of the statutes. The court reversed and

explained:

Predicating disciplinary action against a

licensee on conduct never alleged in an

administrative complaint . . . violates the

Admi nistrative Procedure Act. To

countenance such a procedure would render

nugatory the right to a formal

administrative proceeding to contest the

allegations of an administrative complaint.

Cottrill , 685 So. 2d at 1372.

11 5 . In Ghani , the administrative complaint charged a

physician with violating Section 458.331 by failing to practice

medicine with the requisite standard of care. As grounds for

the charged violation, the administrative complaint alleged that

the physician attempted to treat a patient's serious medical

condition in the physician's office before transporting the

patient to the hospital. The final order also found the

physician had violated the requisite standard of care by having

his wife transport the patient to the hospital instead of

arranging for ambulance transport.

11 6 . The court reversed the agency's action with regard to

the physician's failure to call for an ambulance because that

allegation did not appear in the administrative complaint. The

court rejected the agency's argumen t that the physician's

private - transport decision was included in the general charge of

substandard care in the administrative complaint. Ghani , 714

So. 2d at 1114. See also Sternberg v. Department of

Professional Regulation, Board of Medical Examiners , 465 So. 2d

1324 (Fla. 1st DCA 1985)(Agency cannot find the licensee guilty

of performing four unnecessary tests when the administrative

complaint alleged three unnecessary tests were performed);

Hunter v. Department of Professional Regulation , 458 So. 2d 8 42

(Fla. 2d DCA 1984)(Agency cannot charge the licensee with

abandoning one construction project but later find licensee

abandoned a second project not alleged in the administrative

complaint); Wray v. Department of Professional Regulation, Board

of Medica l Examiners , 435 So. 2d 312 (Fla. 1st DCA 1983)(Agency

cannot charge the licensee with professional misconduct based on

prescribing excessive and improper medications and later find

the licensee also guilty of misconduct for an un - alleged failure

to refer a patient).

11 7 . In its Complaint, the Department seeks, inter alia ,

to suspend or revoke Mr. Alford's license as an insurance agent.

Accordingly, the Department has the burden of proving the

allegations in the Complaint by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996). The clear and convincing evidence standard has

been described as follows:

The evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief of conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Evans Packing Co. v. Department of Agriculture and Consumer

Services , 550 So. 2d 112, 116 (Fla. 1st D CA 1989).

11 8 . The Department failed to prove the allegations of

Count II of the Complaint, dealing with Mr. Dempsey, by clear

and convincing evidence. The paragraphs that follow address the

other nine surviving counts of the Complaint.

11 9 . The Departm ent alleges in Counts IV, V, and VII

through XIII of the Complaint that Mr. Alford violated

Subsection 624.11(1), Florida Statutes (2003):

No person shall transact insurance in this

state, or relevant to the subject of

insurance resident, located, or to pe rformed

in this state, without complying with the

applicable provisions of this code.

The Department proved by clear and convincing evidence that Mr.

Alford violated certain subsections of Section 626.611, Florida

Statutes (2003), which is a part of the Florida Insurance Code.

Therefore, the Department met its burden to prove a violation of

Subsection 624.11(1), Florida Statutes (2003), for all nine

counts.

1 20 . The Department alleges in Counts IV, V, and VII

through XIII of the Complaint that Mr. Alfor d violated

Subsections 626.611(4),(5),(7),(9) and (13), Florida Statutes

(2003):

The department or office shall deny an

application for, suspend, revoke, or refuse

to renew or continue the license or

appointment of any applicant, agent, title

agency, adjus ter, 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 mor e 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.

(5) Willful misrepresentation of any

insurance policy or a nnuity contract or

willful deception with regard to any such

policy or contract, done either in person or

by any form of dissemination of information

or advertising.

* * *

(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, commission, or

office or willful violation of any provision

of this code.

12 1 . The Department did not explain in its Complaint, at

the hearing, or in its proposed recommended order how Mr. Alford

used his license to circumvent any of the requirements or

prohibiti ons of the Insurance Code, a violation of Subsection

626.611(4), Florida Statutes (2003). It is assumed that this

subsection is intended to address some specific wrongful act,

since it is placed in a list of specific wrongful acts.

Otherwise, any wrongfu l act of a licensee would be a violation

of this subsection. Because doubt exists as to whether Mr.

Alford used his license to circumvent the requirements of the

Insurance Code, the Department failed to meet its burden of

proof as to this charge.

12 2 . Th e Department met its burden to prove by clear and

convincing evidence that, with regard to Counts IV, V, and VII

through XIII of the Complaint, Mr. Alford misrepresented the

guarantee period of the annuity policy, constituting a willful

misrepresentation, a willful deception, and a fraudulent or

dishonest practice under Subsections 626.611(5) and (9), Florida

Statutes (2003).

12 3 . The number and pattern of Mr. Alford's

misrepresentations and deceptions demonstrate his lack of

fitness and trustworthiness to engage in the business of

insurance under Subsection 626.611(7), Florida Statutes (2003).

12 4 . The Department did not explain in its Complaint, at

the hearing, or in its proposed recommended order how Mr. Alford

willfully violated a proper order or rule of the Department, a

violation of Subsection 626.611(13), Florida Statutes (2003).

If, by this charge, the Department intended to incorporate its

allegation that Mr. Alford violated Florida Administrative Rule

69B - 215.230(2), the charge must fail because, as explained

below, the evidence is not sufficient to prove a violation of

that R ule. The Department did not meet its burden to prove by

clear and convincing evidence that Mr. Alford violated

Subsection 626.611(13), Florida Statutes (2003).

12 5 . The Department alleges in Counts IV, V, and VII

through XIII of the Complaint that Mr. Alford violated

Subsections 626.621(2), (3), (6), and (9), Florida Statutes

(2003) :

The department or office may, in its

discretion, 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 may suspend or revoke the eligibility

to hold a license o r 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, or refusal is not

mandatory under s. 626.11:

* * *

(2) Violation of any provision of this code

or 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 to be a sour ce of

injury or loss to the public or detrimental

to the public interest.

* * *

(9) If a life agent, violation of the code

of ethics.

The Department met its burden to prove by clear and convincing

evidence that Mr. Alford violated Subsections 626.6 21(2), (6),

and (9), Florida Statutes (2003). For the reasons stated

previously, the Department did not meet its burden of proof with

regard to Subsection 626.621(3), Florida Statutes (2003).

12 6 . The Department alleges in Counts IV, V, and VII

through XIII of its Complaint that Mr. Alford violated Florida

Administrative Code Rule 69B - 215.230(2):

No person shall make, publish, disseminate,

circulate, or place before the public, or

cause, directly or indirectly, to be made,

published, disseminated, circu lated, or

placed before the public, in a newspaper,

magazine, or other publication, or in the

form of a notice, circular, pamphlet, letter

or poster, or over any radio or television

station, or in any other way, any

advertisement, announcement or statement

containing any assertion, representation or

statement with respect to the business of

insurance or with respect to any person in

the conduct of his insurance business, which

is untrue, deceptive or misleading.

12 7 . Florida Administrative Code Rule 69B - 215.230 is

entitled "Misrepresentations." Section (2) of the R ule appears

to apply exclusively to misrepresentations that are communicated

to the general public, as opposed to misrepresentations made to

an individual. All of the described acts invol ve false

statements "placed before the public" and examples of public

communication media are listed, such as newspaper, magazine,

television and radio. In contrast, S ection (1) of the R ule does

not use the words "placed before the public," and does not r efer

to public media . Section (1) of the R ule would have been the

appropriate citation for the wrongful acts by Mr. Alford proved

in this case. The Department failed to prove by clear and

convincing evidence that Mr. Alford violated Florida

Administrativ e Code Rule 69B - 215.230(2).

12 8 . Florida Administrative Code Rule 69B - 231.080, sets

forth the penalties to be assessed for violations of

Section 626.611, Florida Statutes (2003). The penalty for a

violation of Subsection 626.611(5), Florida Statutes (2 003), is

suspension of the agent's license for a period of six months.

The penalty for a violation of Subsection 626.611(7), Florida

Statutes (2003), is a six - month license suspension. The penalty

for a violation of Subsection 626.611(9), Florida Statute s

(2003), is a nine - month license suspension. The penalty for a

violation of Subsection 626.611(13), Florida Statutes (2003), is

a six - month license suspension.

12 9 . Florida Administrative Code Rule 69B - 231.040(1)(a)

provides that the penalty for each co unt in an administrative

complaint is to be calculated based on the violation carrying

the highest penalty. In this case, the violation of

Subsection 626.611(9), Florida Statutes (2003), carries the

highest penalty, suspension of the license for nine mont hs.

1 30 . Florida Administrative Code Rule 69B - 231.040(2)

provides that the penalties for each count are to be added

together to arrive at the total penalty to be assessed. In this

case, the Department has proven that Mr. Alford violated

Subsection 616.61 1(9), Florida Statutes (2003), with respect to

nine counts in the Complaint. Consequently, the total period of

suspension under the rule guidelines would be 81 months.

13 1 . Section 626.641, Florida Statutes (2003), however,

prohibits the Department from suspending a license for more than

two years. Three instances of a fraudulent or dishonest

practice would warrant a total suspension longer than the

two - year limitation. Mr. Alford engaged in nine separate

fraudulent and dishonest acts. Therefore, the appropriate

penalty for Mr. Alford, one that is within the permissible range

of penalties under the law, is revocation of his license. See

Fla. Real Estate Comm. v . Webb , 367 So. 2d 201 (Fla. 1978).

13 2 . Mr. Alford's nine separate acts of misrepresentati on

constitute deceptive acts or practices as defined in Subsection

626.9541(1)(a)1., Florida Statutes (2003):

(1) UNFAIR METHODS OF COMPETITION AND

UNFAIR OR DECEPTIVE ACTS. -- The following are

defined as unfair methods of competition and

unfair or decepti ve acts or practices:

(a) Misrepresentation and false advertising

of insurance policies. -- Knowingly making,

issuing, circulating, or causing to be made,

issued, or circulated, any estimate,

illustration, circular, statement, sales

presentation, omission, or comparison which:

1. Misrepresents the benefits, advantages,

conditions, or terms of any insurance

policy.

13 3 . Section 626.9521, Florida Statutes (2003), provides

that any person who engages in a deceptive act or practice shall

be subject to a f ine not greater than $20,000 for each willful

violation, up to an aggregate amount of $100,000 for all willful

violations arising out of the same action.

13 4 . A fine of $10,000 for each of the nine

misrepresentations made by Mr. Alford is fair and reasona ble

under the circumstances, for a total fine of $90,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Financial Services enter

a final order that:

1. finds Clinton Mitchell Alf ord violated Subsections

624.11(1); 626.611(5), (7), (9), and (13) ; 626.621(2), (6), and

(9); and 626.9541(1)(a)1. , Florida Statutes (2003), and

2. revokes Mr. Alford's license, and

3. imposes a fine against Mr. Alford of $90,000.

DONE AND ENTERED this 1 4 th day of September, 2005, in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(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 1 4 th day of September, 2005.

COPIES FURNISHED :

Greg S. Marr, Esquire

Department of Financial Service s

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Calvin J. Domenico, Jr., Esquire

William R. Klein, Esquire

William R. Klein, P.A.

1900 Main Street, Suite 310

Sarasota, Florida 34236

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Carlos G. Muñiz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All par ties 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.