06-001418
Stephen Peter Alicino vs.
Department Of Financial Services
Status: Closed
Recommended Order on Tuesday, July 11, 2006.
Recommended Order on Tuesday, July 11, 2006.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8STEPHEN PETER ALICINO , )
12)
13Petitioner , )
15)
16vs. ) Case No. 06 - 1418
23)
24DEPARTMENT OF FINANCIAL )
28SERVICES , )
30)
31Respondent . )
34)
35RECOMMENDED ORDER
37Purs uant to notice a formal hearing was held in this case
49on June 6, 2006, before Bram D. E. Canter, an Administrative Law
61Judge of the Division of Administrative Hearings.
68APPEARANCES
69For Petitioner: Stephen Peter Alicino, pro se
764 34 Polk Avenue
80Cape Canaveral, Florida 32920
84For Respondent: Dickson E. Kessler, Esquire
90Department of Financial Services
94Suite S - 823, Hurston Building
100400 West Robinson Street
104Orlando, Florida 32801
107STATEMENT OF THE ISSUE
111The issue in this case is whether Petitioner is entitled to
122be licensed as a "resident personal lines" insurance agent.
131PRELIMINARY STATEMENT
133On February 16, 2006, Resp ondent Department of Financial
142Services (Department) issued a Notice of Denial, in which it
152informed Petitioner that his application for licensure as a
161resident personal lines insurance agent was denied. Petitioner
169timely sought an administrative review o f that decision , and the
180matter was forwarded to the Division of Administrative Hearings
189(DOAH) to conduct a formal evidentiary hearing.
196At the hearing, Petitioner testified on his own behalf.
205Petitioner's Exhibit 1 was admitted into evidence. The
213Depart ment presented no witnesses. The Department's Exhibits I
222through VI were admitted into evidence.
228The T ranscript of the hearing was filed with DOAH , and the
240parties timely filed post - hearing submittals , which have been
250carefully considered in the preparati on of this Recommended
259Order.
260FINDINGS OF FACT
2631. Petitioner was issued a Florida license as a "general
273lines" insurance agent in 1980. He started a business named
283Atlas Auto Insurance, Inc., in that same year. He sold Atlas
294Auto Insurance in 1990. He started Budget Insurance Center,
303Inc., in 1995 and sold that business in 1997.
3122. On August 2, 1994, a Final Judgment was issued in the
324Circuit Court for Leon County, Florida , in favor of the
334Department of Insurance, as Receiver of insolvent American Risk
343Assurance Company and National United Insurance Company, against
351Petitioner and Atlas Auto Insurance for failure to return
360unearned commissions of $1,138.96, plus interest and attorney's
369fees.
3703. On April 7, 1995, a Final Judgment was issued in the
382Circu it Court for Leon County, Florida , in favor of the
393Department of Insurance, as Receiver of insolvent Great Oaks
402Insurance Company, against Petitioner and Atlas Auto Insurance
410for failure to return unearned commissions of $259.95, plus
419interest and attorney 's fees.
4244. On August 12, 1996, a Final Judgment was issued in the
436Circuit Court for Leon County, Florida , in favor of the
446Department of Insurance, as Receiver of insolvent General
454Insurance Company, against Petitioner and Budget Insurance
461Center for fail ure to return unearned commissions of $1,718.14,
472plus interest and attorney's fees.
4775. Based on Petitioner's failure to satisfy the Final
486Judgment in the General Insurance Company case, the Department
495of Insurance initiated an administrative proceeding to revoke
503Petitioner's license. On March 3, 1999, following a formal
512hearing at DOAH which Petitioner did not attend (DOAH Case
522No. 98 - 3776) , the Department of Insurance revoked Petitioner ' s
534license.
5356. On August 29, 1996, two final judgments were issued in
546the Circuit Court for Leon County, Florida , in favor of the
557Department of Insurance, as Receiver of insolvent International
565Bankers Insurance Company, against Petitioner and Atlas Auto
573Insurance for failure to return unearned commissions of
581$6,914.90 an d $1,579.31, plus interest and attorney's fees.
5927. On June 7, 2000, a Final Judgment was issued in the
604Circuit Court for Leon County, Florida , in favor of the
614Department of Insurance, as Receiver of insolvent Armor
622Insurance Company, against Petitioner an d Budget Insurance
630Center for failure to return unearned commissions of $3,446.65,
640plus interest and attorney's fees.
6458. Petitioner has never made a payment on any of the six
657judgments against him.
6609. Petitioner insists that he received no notice of the
670civil actions cited above, or the final judgments that resulted.
680Petitioner learned about the 1996 Final Judgment regarding
688General Insurance Company when the administrative revocation
695case was initiated by the Department of Insurance, because that
705partic ular final judgment and Petitioner's failure to satisfy
714the judgment w ere the bas e s for the revocation action.
726According to Petitioner, he first learned about the other five
736cases in May 2005, when the Department informed him about them
747during the process ing of his license application.
75510. Petitioner also stated that, except for the General
764Insurance Company case, he was no longer associated with the
774insurance companies involved in these civil cases and was not
784personally responsible for any of the unearn ed commissions.
79311. Each of the six final judgments of the Leon County
804Circuit Court indicated that a copy was sent to Petitioner.
814However, no address for Petitioner is stated. Each judgment is
824against an insurance company , as well as Petitioner, but th e
"835cc" only lists the Department of Insurance attorney and Stephen
845Peter Alicino. 1 That suggests the final judgments, and perhaps
855all notices, were sent to one address for both the insurance
866company and Petitioner. It is possible that all correspondence
875regarding the civil cases was sent to the businesses where
885Petitioner no longer maintained an office or was otherwise
894associated. It is also possible that the new owners of the
905businesses never informed Petitioner about the cases.
91212. Petitioner stated t hat when he was notified of other
923judgments resulting from the insolvency of insurance companies,
931he always paid those judgments. Petitioner has never had a
941civil action brought against him except in the context of
951insolvent insurer cases.
95413. The only e vidence in the record regarding whether
964Petitioner received actual notice of the civil cases and their
974final judgments is the testimony of Petitioner and the "cc" on
985the final judgments. The more persuasive evidence, taking into
994account the demeanor of Pe titioner during his testimony, is that
1005he did not receive actual notice of the six civil cases and
1017their final judgments. 2
102114. Petitioner filed an application for licensure as a
1030resident personal lines insurance agent on or about May 24,
10402004. In respons e to the question on the application about
1051whether the applicant ever had a judgment against him in a civil
1063action related to insurance, Petitioner answered "No."
107015. In response to the question on the application about
1080whether the applicant has ever had his license revoked,
1089Petitioner answered "Yes" and provided the Department of
1097Insurance case number.
110016. The Department told Petitioner it would not process
1109his application for licensure until the outstanding judgments
1117were paid or a plan to satisfy the j udgments was established.
1129In three separate responses, Petitioner told the Department that
1138he was not liable for the unearned commissions and should not
1149have to pay them.
115317. Petitioner stated that he has had illnesses, financial
1162problems, and family iss ues that have prevented him from making
1173any payments to date on the one judgment that he acknowledges
1184responsibility for, the 1996 Final Judgment regarding General
1192Insurance Company.
119418. In his post - hearing submittal, Petitioner continues to
1204urge that the judgments against him, except for the Final
1214Judgment in the General Insurance Company case, be treated as
1224erroneous and that he be granted a license upon his satisfaction
1235of the General Insurance Company judgment.
1241CONCLUSIONS OF LAW
124419. DOAH has jurisdi ction over the parties to and the
1255subject matter of these proceedings pursuant to Subsections
1263120.569(1) and 120.57(1), Florida Statutes (2005). 3
127020. The Department is the state agency charged with the
1280responsibility of regulating the licensing of insur ance agents
1289pursuant to Chapter 626, Florida Statutes.
129521. As the applicant for a license, Petitioner bears the
1305burden of proof in this case to establish he is entitled to the
1318license. Florida Department of Transportation v. J.W.C. Co.
1326Inc. , 396 So. 2d 7 78 (Fla. 1 st DCA 1981).
133722. Section 626.611, Florida Statutes, provides in
1344pertinent part:
1346The department shall deny an application for,
1353suspend, revoke, or refuse to renew or
1360continue the license or appointment of any
1367applicant, agent, title agency, adj uster,
1373customer representative, service
1376representative, or managing general agent,
1381and it shall suspend or revoke the
1388eligibility to hold a license or appointment
1395of any such person, if it finds that as to
1405the applicant, licensee, or appointee any one
1412or m ore of the following applicable grounds
1420exist:
1421(1) Lack of one or more of the
1429qualifications for the license or appointment
1435as specified in this code.
1440(2) Material misstatement,
1443misrepresentation, or fraud in obtaining the
1449license or appointment or in attempting to
1456obtain the license or appointment.
1461* * *
1464(7) Demonstrated lack of fitness or
1470trustworthiness to engage in the business of
1477insurance.
147823. Chapter 631, Florida Statutes, deals with the
1486procedures applicable when an insurance comp any is determined to
1496be insolvent, including the appointment of a receiver to manage
1506the insurer's assets and liabilities. Section 631.155 , Florida
1514Statutes, states that insurance agents have a duty to account to
1525the receiver for all premiums and unearned commissions
1533associated with the insolvent insurer and must pay sums
1542determined to be owed by the court within 30 days of judgment .
1555The section states further that, "failure to comply with this
1565section shall be sufficient grounds for the license revocatio n. "
157524. The Department asserts that Petitioner's failure to
1583disclose the six final judgments on his application is evidence
1593of his lack of trustworthiness and fitness for licensure.
1602Although Petitioner answered "No" to the question about the
1611existence of any judgments against him in civil actions, he
1621informed the Department of the one judgment he was aware of at
1633the time of his application in his answer to a subsequent
1644question, by giving the case number for the final order in the
1656revocation proceeding. That final order indicated the
1663revocation was based on Petitioner's failure to satisfy the
1672Final Judgment in the General Insurance Company case.
1680Petitioner's lack of precision in answering these application
1688questions was not intended to mislead or deceive the Department
1698and is not evidence that Petitioner lacks trustworthiness or
1707fitness to be an insurance agent.
171325. However, Petitioner failed to meet his burden of proof
1723to establish he is entitled to the license he seeks, because he
1735has not satisfied the judgments against him for unearned
1744commissions. Even assuming the correctness of Petitioner's
1751claim that he was never notified of the six civil actions and
1763was not responsible for the unearned commissions identified in
1772five of the judgments, he has yet t o satisfy the General
1784Insurance Company judgment which he admits responsibility for.
1792This is a sufficient basis, pursuant to Section 631.155 and
1802Subsections 626.611(1) and (7), Florida Statutes, for the
1810Department to deny Petitioner's application for a li cense.
181926. In determining whether to issue Petitioner a license,
1828the Department may be able to consider Petitioner's claims that
1838he had no notice of the six insolvent insurer cases and that he
1851had no responsibility for the unearned commissions in five of
1861those cases because the commissions were paid long after he
1871ceased to be associated with the companies involved. However,
1880the undersigned has no authority in this licensing proceeding to
"1890rehear" the five civil cases that Petitioner disputes.
189827. Moreove r, the record does not indicate that Petitioner
1908provided the Department sufficient information for it to accept
1917his claim that he was not responsible for the unearned
1927commissions. Therefore, the Department did not act unreasonably
1935in determining that all six judgments against Petitioner must be
1945paid, or a plan to pay them must be established, before it will
1958favorably consider Petitioner's application for licensure.
1964RECOMMENDATION
1965Based on the foregoing Findings of Fact and Conclusions of
1975Law, it is RECOMME NDED that the Department of Financial Services
1986enter a f inal o rder denying Petitioners application for
1996licensure.
1997DONE AND ENTERED this 1 1 th day of July , 2006 , in
2009Tallahassee, Leon County, Florida.
2013S
2014BRAM D. E. CANTER
2018A dministrative Law Judge
2022Division of Administrative Hearings
2026The DeSoto Building
20291230 Apalachee Parkway
2032Tallahassee, Florida 32399 - 3060
2037(850) 488 - 9675 SUNCOM 278 - 9675
2045Fax Filing (850) 921 - 6847
2051www.doah.state.fl.us
2052Filed with the Clerk of the
2058Division of Administrative Hearings
2062this 1 1 th day of July , 2006 .
2071ENDNOTES
20721/ The same attorney appeared for the Department of Insurance
2082in all six cases.
20862/ This finding is not intended to suggest that the final
2097judgments are invalid or unenforceable. It is r elevant only to
2108the issue of whether Petitioner's failure to satisfy the
2117judgments is evidence of lack of trustworthiness or fitness to
2127be an insurance agent.
21313/ Unless otherwise indicated, all references to the Florida
2140Statutes are to the 2005 codificat ion.
2147COPIES FURNISHED :
2150Stephen Peter Alicino
2153434 Polk Avenue
2156Cape Canaveral, Florida 32920
2160Dickson E. Kesler, Esquire
2164Department of Financial Services
2168Suite S - 823, Hurston Building
2174400 West Robinson Street
2178Orlando, Florida 32801
2181Honorable Tom Galla gher
2185Chief Financial Officer
2188Department of Financial Services
2192The Capitol, Plaza Level 11
2197Tallahassee, Florida 32399 - 0300
2202Carlos G. Muniz, General Counsel
2207Department of Financial Services
2211The Capitol, Plaza Level 11
2216Tallahassee, Florida 32399 - 0300
2221NOT ICE OF RIGHT TO SUBMIT EXCEPTIONS
2228All parties have the right to submit written exceptions within
223815 days from the date of this Recommended Order. Any exceptions
2249to this Recommended Order should be filed with the agency that
2260will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 07/11/2006
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 07/07/2006
- Proceedings: Letter to Judge Canter from D. Kesler requesting review of the recommendation submitted by Respondent on June 26, 2006 filed.
- Date: 06/15/2006
- Proceedings: Hearing Transcript filed.
- Date: 06/06/2006
- Proceedings: CASE STATUS: Hearing Held.
Case Information
- Judge:
- BRAM D. E. CANTER
- Date Filed:
- 04/18/2006
- Date Assignment:
- 04/19/2006
- Last Docket Entry:
- 08/16/2006
- Location:
- Orlando, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Stephen Peter Alicino
Address of Record -
Dickson E Kesler, Esquire
Address of Record