05-001339PL Department Of Financial Services vs. Mark D. Hannifin Status: Closed Recommended Order on Monday, December 5, 2005.

Summary: Respondent received payment for insurance but failed to obtain coverage, diverted the funds, and issued false certificates of liability insurance. Recommend revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1339PL

)

MARK D. HANNIFIN, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case by video teleconference on June 28, 2005, at sites

located in West Palm Beach and Tallahassee, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Alan Fox, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Robert W. Guerrier, Esquire

230 Royal Palm Beach Boulev ard

Royal Palm Beach, Florida 33411

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent

committed the offenses set forth in the Administrative

Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On February 10, 2005, the Department of Financial

Services (Department) filed a six - count Administrative

Complaint against Mark D. Hannifin (Hannifin). The Department

charged Mr. Hannifin with the following: Count I -- violating

Sections 626.611(7), (8), ( 9), and (10) and 626.621(2)(by

failing to comply with Section 626.561(1)) and (6), Florida

Statutes; Count II -- violating Sections 626.611(7), (8), (9),

and (10) and 626.621(6) (by engaging in or committing the

methods or acts or practices defined in Sectio n

626.9541(1)(e)1.b., c., and e. and (k)1.), Florida Statutes;

Count III -- violating Sections 626.611(7), (8), (9), and (10)

and 626.621(6) (by engaging in or committing the methods or

acts or practices defined in Section 626.9541(1)(e)1.b., c.,

and e. and (k)1.), Florida Statutes; Count IV -- violating

Sections 626.611(7), (8), (9), and (10) and 626.621(6) (by

engaging in or committing the methods or acts or practices

defined in Section 626.9541(1)(e)1.b., c., and e. and (k)1.),

Florida Statutes; Count V -- vio lating Sections 624.11(1),

626.611(7) and (8), 626.621(2) and (6), and 626.901(1),

Florida Statutes; and Count VI -- violating Sections 624.11(1),

626.611(7) and (8), 626.621(2) and (6), and 626.901(1),

Florida Statutes. By an Election of Proceedings, Mr. H annifin

disputed the allegations of fact and requested a hearing

pursuant to Section 120.57(1), Florida Statutes.

On April 14, 2005, this matter was referred to the

Division of Administrative Hearings.

The Department filed a Motion for Summary Recomm ended

Order regarding Counts I through IV of the Administrative

Complaint, to which Mr. Hannifin filed a response. By Order

dated June 24, 2005, the Department's motion was denied.

At hearing, the Department presented the testimony of

four witnesses and e ntered thirteen exhibits (Petitioner's

Exhibits numbered 3 - 8, 11 - 13, 13A, 14 - 15, and 25) into

evidence; three exhibits were rejected (Petitioner's Exhibits

numbered 22 - 24). Mr. Hannifin presented the testimony of one

of the Department's witnesses and ente red no exhibits into

evidence. 1 The undersigned took official recognition of two

documents -- Petitioner's Exhibits numbered 9 and 10.

A transcript of the hearing was ordered. At the request

of the parties, the time for filing post - hearing submissions

was set for more than 10 days following the filing of the

transcript. The Transcript, consisting of one volume, was

filed on July 15, 2005. The Department timely filed its post -

hearing submission.

As to Counts V and VI of the Administrative Complaint,

the De partment indicated in footnote numbered 1 of its post -

hearing submission that it had abandoned those counts.

Mr. Hannifin failed to timely file his post - hearing

submission, but the Department did not object. Together with

Mr. Hannifin's post - hearing submi ssion, he filed two

attachments -- a copy of the Administrative Complaint and a copy

of a letter, dated June 22, 2005, from Timothy McClure of Madd

Dogs Installation, Inc. to counsel for the Department. The

Administrative Complaint is a part of the record, as it was

forwarded to the Division of Administrative Hearings with the

referral of this matter by the Department, and, therefore, its

attachment raises no concerns. However, the attachment of the

letter raises concerns in that it was neither requested to be

late - filed nor admitted into evidence at hearing. The

Department has not raised an objection to the letter. The

undersigned has not considered the document in the preparation

of this Recommended Order, but it is made a part of the

record. Mr. Hannif in's post - hearing submission is accepted,

except as indicated.

The parties' post - hearing submissions have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Mr. Hannifin was

licensed by the De partment as a resident Life Agent, Life and

Health Agent, General Lines (Property and Casualty Insurance)

Agent, and Health Agent. Mr. Hannifin's license

identification number is A110269.

2. At all times material hereto, Mr. Hannifin was

licensed by the State of Florida as an insurance agent.

3. At all times material hereto, Mr. Hannifin was the

president of Hannifin & Associates, Inc. He was the only

insurance agent in Hannifin & Associates.

4. An investigator with the Department investigated

several complaints against Mr. Hannifin. The investigator

tape recorded Mr. Hannifin's statement on September 3, 2003,

after informing Mr. Hannifin of his Miranda rights and having

Mr. Hannifin execute a Miranda warning card. During the

statement, the investiga tor presented several documents to

Mr. Hannifin and asked him several questions regarding the

documents. The investigator testified at hearing and the tape

recording was received into evidence. As to the

identification of those documents, the undersigned finds the

investigator's testimony credible. Mr. Hannifin made

admissions during the taped statement 2 (Statement). The

undersigned finds the Statement credible.

5. The undersigned took official recognition of a

criminal matter involving Mr. Hannifin, r egarding the issues

in the Administrative Complaint, in the Circuit Court of Palm

Beach County, Fifteenth Judicial Circuit: State of Florida v.

Mark Dwain Hannifin , Case No. 03 - 0112566CFA02. In the

Information filed in the court case on October 28, 2003,

Mr. Hannifin was charged with two counts of misappropriation

of insurance funds (Counts 1 and 2) and four counts of

uttering a forgery (Counts 3 - 6). Pertinent to this matter,

Count 2 of the Information involved Madd Dogs Installation,

Inc. (Madd Dogs Inst all'n); Count 3 involved Double A

Industries (Double A); Count 4 involved Rockwell Development

Company (Rockwell Development); and Count 6 involved Royal

Professional Builders, Inc. (Royal Professional Builders).

Subsequently, Mr. Hannifin entered into a Pretrial

Intervention Program, Deferred Prosecution Agreement on all

counts, filed in the court case on April 12, 2005, in which,

among other things, prosecution was deferred for a period of

12 months provided Mr. Hannifin abided by certain agreed

conditio ns.

COUNT I

6. On or about September 20, 2001, Timothy McClure and

Brett Carnahan of Madd Dogs Install'n met with Mr. Hannifin at

his office. 3 They sought to obtain workers' compensation

insurance and commercial general liability insurance for Madd

Dogs Install'n.

7. Messrs. McClure and Carnahan agreed to obtain the

workers' compensation insurance and commercial general

liability insurance for Madd Dogs Install'n from Mr. Hannifin.

The workers' compensation insurance was to be provided by

Florida United Businesses Associations, Inc. (FUBA), and the

commercial general liability insurance was to be provided by

Burlington Insurance Company (BIC).

8. On that same day, Messrs. McClure and Carnahan

completed the applications for the insurance. Mr. Hannifin

r eceived from Messrs. McClure and Carnahan a partial premium

payment for the workers' compensation insurance in the amount

of $1,205.70 in cash; a premium payment for the commercial

general liability insurance in the amount of $453.00 in cash;

and an applic ation fee for membership in FUBA in the amount of

$50.00 in cash. Mr. Hannifin deposited the monies received

into the business account of Hannifin & Associates.

9. Hannifin & Associates sent Madd Dogs Install'n four

invoices for monthly premiums relating to the workers'

compensation insurance. Between November 2001 and February

2002, Madd Dogs Install'n, by and through Mr. McClure by

check, made four monthly payments on the premiums due for the

workers' compensation insurance. The payments were deposite d

into the business account of Hannifin & Associates.

10. Mr. Hannifin failed to remit any of the payments

from Madd Dogs Install'n to BIC, to FUBA or to any other

insurance company.

11. Mr. Hannifin never obtained the workers'

compensation insurance and the commercial general liability

insurance for Madd Dogs Install'n.

12. Mr. Hannifin admitted in his Statement that, due to

cash flow problems, he diverted the monies paid by Madd Dogs

Install'n to his own use.

13. Mr. Hannifin admitted in his Statement that he did

not return the money to Mr. McClure. 4

14. Among the conditions provided in the Deferred

Prosecution Agreement was that Mr. Hannifin would pay

Mr. McClure $8,763.60.

COUNT II

15. Mr. Hannifin issued to Madd Dogs Install'n a

Certificate of L iability Insurance (Certificate). The date on

the Certificate was November 28, 2001. The Certificate

provided, among other things, that the insured was Madd Dogs

Install'n; that the insurers were BIC for commercial general

liability coverage and FUBA for workers' compensation

coverage; that the policy number for the commercial general

liability was B20394871; that the policy number for the

workers' compensation coverage was F4673920; that the coverage

period for the policy was September 20, 2001 through

S eptember 20, 2002; that the certificate holder was Rockwell

Development; and that the "Certificate is issued as a matter

of information only and confers no rights upon the certificate

holder. . . ." Mr. Hannifin signed the Certificate, as the

authorized r epresentative.

16. Madd Dogs Install'n provided a copy of the

Certificate to Rockwell Development. Before permitting

subcontractors to perform work on its projects, Rockwell

Development requires the subcontractors to provided proof of

insurance. Madd Do gs Install'n was a subcontractor of

Rockwell Development.

17. An inference is drawn and a finding is made that,

without the Certificate, Rockwell Development would not allow

Madd Dogs Install'n to perform any work at its (Rockwell

Development) projects.

18. Mr. Hannifin knew that Rockwell Development would

receive a copy of the Certificate. 5

19. Count II contains an allegation that Mr. Hannifin

furnished a copy of the Certificate to Rockwell Development.

The evidence failed to demonstrate that Mr. Hann ifin or anyone

in his office, which would satisfy showing that he furnished

the Certificate, furnished the copy to Rockwell Development.

However, failure to prove this allegation is inconsequential

in that the evidence demonstrates that Mr. Hannifin knew that

a copy of the Certificate would be furnished to Rockwell

Development whether he, or someone in his office, or Madd Dogs

Install'n furnished the copy.

20. Madd Dogs Install'n was not insured with either BIC

or FUBA.

21. Mr. Hannifin knew that Madd Do gs Install'n did not

become, and was not, insured by either BIC or FUBA. He did

nothing to cure the non - insurance coverage. Further, as a

result, Mr. Hannifin knew that the policy numbers for coverage

were nonexistent and, therefore, false.

22. The Cert ificate was a false material statement.

COUNT III

23. Mr. Hannifin issued to Madd Dogs Install'n a

Certificate. The date on the Certificate was March 21, 2002.

The Certificate provided, among other things, that the insured

was Madd Dogs Install'n; that the insurers were BIC for

commercial general liability coverage and FUBA for workers'

compensation coverage; that the policy number for the

commercial general liability was B958477322; that the policy

number for the workers' compensation coverage was F467 3920;

that the coverage period for the policy was September 20, 2001

through September 20, 2002; that the certificate holder was

Double A; and that the "Certificate is issued as a matter of

information only and confers no rights upon the certificate

holder . . . ." Mr. Hannifin signed the Certificate, as the

authorized representative.

24. Before permitting subcontractors to perform work on

its projects, Double A requires the subcontractors to provided

proof of insurance. Madd Dogs Install'n was a subcontr actor

of Double A.

25. Based on the evidence presented, an inference is

drawn and a finding is made that Mr. Hannifin provided a copy

of the Certificate to Double A. 6

26. An inference is drawn and a finding is made that,

without the Certificate, Double A would not allow Madd Dogs

Install'n to perform any work at its (Double A) projects.

27. Mr. Hannifin knew that Double A would receive a copy

of the Certificate.

28. Madd Dogs Install'n was not insured with either BIC

or FUBA.

29. Mr. Hannifin knew that Madd Dogs Install'n did not

become, and was not, insured by either BIC or FUBA. He did

nothing to cure the non - insurance coverage. Further, as a

result, Mr. Hannifin knew that the policy numbers for coverage

were nonexistent.

30. The Certificate was a false material statement.

COUNT IV

31. Mr. Hannifin issued to R. K. Drywall 7 a Certificate.

The date on the Certificate was August 26, 2002. The

Certificate provided, among other things, that the insured was

R. K. Drywall; that the insurer was Florida C itrus Association

(FCA), which is also FUBA, for workers' compensation coverage;

that the policy number for the workers' compensation coverage

was FLWC96850049; that the coverage period for the policy was

August 17, 2002 through August 17, 2003; that the c ertificate

holder was Royal Professional Builders; and that the

"Certificate is issued as a matter of information only and

confers no rights upon the certificate holder. . . ."

Mr. Hannifin signed the Certificate, as the authorized

representative.

32. Mr. Han nifin did not forward any money to FCA for

the

workers' compensation coverage. R. K. Drywall was not insured

by FCA.

33. Mr. Hannifin knew that R. K. Drywall did not become,

and was not, insured by FCA. He did nothing to cure the non -

insurance coverag e. Further, as a result, Mr. Hannifin knew

that the policy number for coverage was nonexistent.

34. The Certificate was a false material statement.

35. An inference is drawn and a finding is made that,

without the Certificate, Royal Professional Builder s would not

allow R. K. Drywall to perform any work at its (Royal

Professional Builders) projects.

36. Mr. Hannifin admitted in his Statement that he

furnished Royal Professional Builders a copy of the

Certificate.

37. Mr. Hannifin also admitted in his S tatement that he

returned to R. K. Drywall all the monies paid to him.

38. Count IV contains an allegation that Mr. Hannifin

signed and furnished the Certificate to Royal Professional

Builders on August 26, 2001, instead of August 26, 2002. In

the propos ed findings of fact of the Department's post - hearing

submission, the Department again refers to the date as

August 26, 2001, in spite of the evidence to the contrary;

and, as supported by the evidence, refers to the year of

another Certificate, showing R. K. Drywall as the insured and

Badger Homes, Inc., as the certificate holder, as 2002. At no

time did the Department make a request to declare the year of

2001 as a scrivener's error and to amend the Administrative

Complaint accordingly. Taking into consi deration that the

burden of proof is upon the Department by clear and convincing

evidence and taking into consideration the evidence presented

at hearing and the Department's post - hearing submission, the

undersigned considers the year of 2001 in the Admini strative

Complaint to be critical and not a harmless error. Therefore,

the undersigned finds that the Department failed to show that

the Certificate's date was August 26, 2001, as alleged in the

Administrative Complaint.

CONCLUSIONS OF LAW

39. The Divisi on of Administrative Hearings has

jurisdiction over the subject matter of these proceedings and

the parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (2005).

40. License revocation proceedings are penal in nature.

The burden of proof is on the Petitioner to establish by clear

and convincing evidence the truthfulness of the allegations in

the Administrative Complaint. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris

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

41. A licensee is charged with knowing the practice act

that governs his/her license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d

975 (Fla. 3d DCA 1990).

42. "Insurance is a business greatly affected by the

public trust, and the holder of an agent's license stands in a

fiduciary relationship to both the client and the insurance

company." Natelson v. Department of Insur ance , 454 So. 2d 31,

32 (Fla. 1st DCA 1984).

43. Section 626.611, Florida Statutes (2001), provides

in pertinent part:

The department shall . . . suspend, revoke,

or refuse to renew or continue the license

or appointment of any . . . agent, title

agency, . . . 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 . . . licensee, or appointee

any one or more of the following applicable

grounds exist:

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business

of insurance.

(8) Demonstrated lack of reasonably

adequate knowledge and technical competence

to engage in the transaction s authorized by

the license or appointment.

(9) Fraudulent or dishonest practices in

the conduct of business under the license

or appointment.

(10) Misappropriation, conversion, or

unlawful withholding of moneys belonging to

insurers or insureds or ben eficiaries or to

others and received in conduct of business

under the license or appointment.

(Emphasis added)

44. Section 626.621, Florida Statutes (2001), provides

in pertinent part:

The department may , in its discretion, . .

. suspend, revoke, or re fuse to renew or

continue the license or appointment of any

. . . agent, . . . 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 . . . 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.

* * *

(6) In the conduct of business under the

license or appointment, engaging in unfair

methods of co mpetition 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 or

detrimental to the public interest.

(Emphasis added)

45. S ection 626.9541, Florida Statutes (2001), provides

in pertinent part:

(1) UNFAIR METHODS OF COMPETITION AND

UNFAIR OR DECEPTIVE ACTS. The following

are defined as unfair methods of

competition and unfair or deceptive acts or

practices:

* * *

(e) F alse statements and entries. --

1. Knowingly:

* * *

b. Making, publishing, disseminating,

circulating,

c. Delivering to any person,

* * *

e. Causing, directly or indirectly, to be

made, published, disseminated, circulated,

delivered to any p erson, or placed before

the public,

any false material statement.

* * *

(k) Misrepresentation in insurance

applications. --

1. Knowingly making a false or fraudulent

written or oral statement or representation

on, or relative to, an application or

negotiation for an insurance policy for the

purpose of obtaining a fee, commission,

money, or other benefit from an insurer,

agent, broker, or individual.

The provisions of Section 626.9541, Florida Statutes (2001),

are "merely definitional and do not the mselves authorize any

disciplinary action." Werner vs. Department of Insurance and

Treasurer , 689 So. 2d 1211, 1214 (Fla. 1st DCA 1997).

46. Section 626.561, Florida Statutes (2001), provides

in pertinent part:

(1) All premiums, return premiums, or

other fun ds belonging to insurers or

others received by an agent, customer

representative . . . in transactions

under his or her license are trust

funds received by the licensee in a

fiduciary capacity. . . . The licensee

1 7

in the applicable regular course of

busines s shall account for and pay the

same to the insurer, insured, or other

person entitled thereto.

47. The Department demonstrated by clear and convincing

evidence that Mr. Hannifin committed the following violations:

Count I -- violated Sections 626.611(7), (9) and (10) and

626.621(2) (by failing to comply with Section 626.561(1)),

Florida Statutes (2001); and Counts II and III -- violated

Sections 626.611(7) and (9), and 626.621(6) (by engaging in or

committing the methods or acts or practices defined in Secti on

626.9541(1)(e)1.b. ,c., and e.), Florida Statutes (2001).

48. The Department failed to demonstrate that

Mr. Hannifin committed the violations charged in Count IV of

the Administrative Complaint. Matters not charged in the

Administrative Complaint cann ot be considered as a violation.

Chrysler v. Department of Professional Regulation , 627 So. 2d

31 (Fla. 1st DCA 1993); Klein v. Department of Business and

Professional Regulation , 625 So. 2d 1237 (Fla. 2d DCA 1993).

As to Count IV, the Department failed to demonstrate by clear

and convincing evidence that the Certificate issued by

Mr. Hannifin was dated August 26, 2001, which was material to

Count IV. The evidence demonstrated that the date of the

Certificate was August 26, 2002, and that the period of t he

insurance coverage was August 17, 2002 through August 17,

2003. The Administrative Complaint in Count IV dealt with

circumstances occurring on or about August 26, 2001, not

August 26, 2002. Even though the evidence demonstrated that

Mr. Hannifin commi tted violations as to the Certificate issued

August 26, 2002, he was not charged with matters occurring on

or about August 26, 2002.

49. As to penalty, Florida Administrative Code Rule 69B -

231.040 provides:

(1) Penalty Per Count.

(a) The Department is a uthorized to find

that multiple grounds exist under Sections

626.611 and 626.621, F.S., for disciplinary

action against the licensee based upon a

single count in an administrative complaint

based upon a single act of misconduct by a

licensee. However, for the purpose of this

rule chapter, only the violation specifying

the highest stated penalty will be

considered for that count. The highest

stated penalty thus established for each

count is referred to as the "penalty per

count".

(b) The requirement for a single highest

stated penalty for each count in an

administrative complaint shall be

applicable regardless of the number or

nature of the violations established in a

single count of an administrative

complaint.

(2) Total Penalty. Each penalty per count

shall be added together and the sum shall

be referred to as the "total penalty".

(3) Final Penalty. The final penalty

which will be imposed against a licensee

under these rules shall be the total

penalty, as adjusted to take into

consideration any aggr avating or mitigating

factors, provided however the Department

shall convert the total penalty to an

administrative fine and probation in the

absence of a violation of Section 626.611,

F.S., if warranted upon the Department's

consideration of the factors s et forth in

rule subsection 69B - 231.160(1), F.A.C.

50. Florida Administrative Code Rule 69B - 231.080

provides that the penalty for a violation of Subsections

626.611(7), (9),

and (10), Florida Statutes (2001), is a six - month suspension,

a nine - month susp ension, and a nine - month suspension,

respectively.

51. Florida Administrative Code Rule 69B - 231.090

provides that the penalty for a violation of Subsections

626.621(2) and (6), Florida Statutes (2001), is a three - month

suspension and a six - month suspensio n, respectively.

52. Florida Administrative Code Rule 69B - 231.100

provides that the penalty for a violation of Section

626.9541(1)(e), Florida Statutes (2001), is a six - month

suspension.

53. The highest stated penalty for Counts I (six - month,

nine - month, nine - month, and three - month), II (six - month, nine -

month, and six - month), and III (six - month, nine - month, and

six - month) is a nine - month suspension, respectively. The

total penalty is a 27 - month suspension.

54. However, the period of suspension cannot ex ceed two

years (24 months). § 626.641(1), Fla. Stat. (2001).

55. Aggravating factors exist. Mr. Hannifin's conduct

of receiving monies and not applying the monies for the

insurance coverage was willful, and his diverting the monies

for his own use was w illful. Fla. Admin. Code R. 69B -

231.160(1).

56. Mitigating factors also exist. Mr. Hannifin fully

cooperated with the Department in its investigation, and no

evidence was presented as to prior disciplinary action by the

Department. Id.

57. Taking into consideration the aggravating and

mitigating factors, the aggravating factors outweigh the

mitigating factors. As a result, the final penalty should be

more severe than a 24 - month suspension. The final penalty

should be revocation.

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:

1. Finding that Mark D. Hannifin committed the following

violations: Count I -- violated Sections 626.611(7), (9) and

(10) and 626.621(2) (by failing to comply with Section

626.561(1)), Florida Statutes (2001); and Counts II and III --

violated Sections 626.611(7) and (9), and 626.621(6) (by

engaging in or committing the methods or acts or practices

defined in Section 626.9 541(1)(e)1.b. ,c., and e.), Florida

Statutes (2001); and

2. Revoking the licenses and appointments of Mark D.

Hannifin.

DONE AND ENTERED this 5th day of December, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(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 5th day of December, 2005.

ENDNOTES

1/ Mr. Hannifin did not appear at the hearing. His non -

appearance cannot be used as a factor against him in this

matter.

2/ The admissions are an exception to hearsay and are

admissible. Mr. Hannifin need not, and did not, testify.

§ 90.803(18), Fla. Stat.

3/ Neither Mr. McClure nor Mr. Carnahan testified at hearing.

4/ The letter, dated June 22, 2005 and from Mr. McClure t o the

Department, attached to Mr. Hannifin's post - hearing submission

indicates that Mr. Hannifin returned the monies paid by

Mr. McClure on behalf of Madd Dogs Install'n. As provided in

the Preliminary Statement, the letter was not considered in

the prepa ration of this Recommended Order.

5/ Whether Mr. Hannifin or his office provided the Certificate

to Rockwell Development is immaterial. Mr. Hannifin knew that

Rockwell Development would receive a copy of the Certificate.

6/ Mr. Hannifin admitted in hi s Statement that the Certificate

bore his fax identification information and that he probably

faxed the Certificate to Double A.

7/ No representative of R. K. Drywall testified at hearing.

COPIES FURNISHED:

Robert Alan Fox, Esquire

Department of Finan cial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Robert W. Guerrier, Esquire

230 Royal Palm Beach Boulevard

Royal Palm Beach, Florida 33411

Carlos G. Muniz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 1 1

Tallahassee, Florida 32399 - 0307

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza 11

Tallahassee, Florida 32399 - 0300

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.