06-003671PL Department Of Financial Services vs. Jibri Khaleid Knight Status: Closed Recommended Order on Monday, May 7, 2007.

Summary: Respondent aided and abetted another agent in violation of the Insurance Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ) )

FINANCIAL SERVICES, )

)

Petitioner, ) Case No. 06-3671PL

)

vs. )

)

JIBRI KHALEID KNIGHT, )

)

Respondent. )

RECOMMENDED ORDER

Notice was provided and on February 28, 2007, a formal

hearing was held in this case pursuant to Sections 120.569 and

120.57(1), Florida Statutes (2006). The hearing location was

the offices of the Division of Administrative Hearings, the

DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida.

The hearing commenced at 9:00 a.m. The hearing was held before

Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: William Gautier Kitchen, Esquire

Gregg Marr, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

For Respondent: L. Michael Billmeier, Jr., Esquire

Galloway, Brennan and Billmeier, P.A.

240 East Fifth Avenue

Tallahassee, Florida 32303

Michael L. Rothschild, Esquire

Larry S. Davis, P.A.

1926 Harrison Street

Hollywood, Florida 33020

STATEMENT OF THE ISSUE

Should discipline be imposed by Petitioner against

Respondent's insurance agent licenses, life including variable

annuity (2-14), and general lines (2-20), pursuant to Chapters

624 and 626, Florida Statutes (2004)?

PRELIMINARY STATEMENT

On August 18, 2006, by an Administrative Compliant in Case

No. 87216-06-AG, Petitioner accused Respondent of violations of

Chapters 624 and 626, Florida Statutes (2004), subjecting

Respondent to possible discipline in accordance with those

chapters and Florida Administrative Code Chapter 69B-231, in

relation to the sale of term life insurance by Denise D.

Turnbull, a customer representative to William L. Green, Jr., a

customer, and Respondent's sale of an accident medical

protection plan to Brandi Dean, a customer.

On September 7, 2006, Respondent's attorney wrote

Petitioner requesting a hearing pursuant to Sections 120.569 and

120.57, Florida Statutes, to allow the allegations in the

Administrative Complaint to be contested.

On September 25, 2006, Petitioner forwarded the case to the

Division of Administrative Hearings (DOAH) to assign an

administrative law judge to conduct a formal hearing. Robert

Cohen, Director and Chief Judge of DOAH accepted the case. It

was assigned as DOAH Case No. 06-3671PL, with the undersigned

serving as administrative law judge.

Following two continuances the case was heard on the

aforementioned date.

Petitioner called Brandi Lee Dean, Denise D. Turnbull, and

William L. Green, Jr. as its witnesses. Petitioner's Exhibits

numbered 1, 2, 4 through 12, and 15 through 19 were admitted.

At the conclusion of Petitioner's case, Respondent moved to

dismiss Count II to the Administrative Complaint. The motion

was denied for reasons explained in the hearing transcript. No

witnesses were presented by Respondent. Respondent's Exhibit

numbered 1 was admitted.

Consistent with an Order of Prehearing Instructions the

parties entered into factual stipulations. The stipulated facts

are set out in the findings of fact to this Recommended Order.

On March 14, 2007, a transcript was filed. On April 3,

2007, Respondent filed a proposed recommended order through an

extended filing schedule. It was considered in preparing the

Recommended Order.

FINDINGS OF FACT

Stipulated Facts

1. Respondent is licensed by Petitioner as a life

including variable annuity (2-14) and a general lines (2-20)

insurance agent and has been issued license D029506.

2. During the time referenced in the Administrative

Complaint, Respondent was licensed as a customer representative

(4-40) and a life including variable annuity (2-14) agent.

3. The Department has jurisdiction over Respondent's

insurance licenses and appointments.

4. At all times relevant to the dates and occurrences

referenced in the Administrative Complaint, Respondent was

employed or affiliated with Direct General Insurance Agency,

Inc., a Tennessee corporation, doing business in Florida as

Florida No-Fault Insurance Agency (Cash Register).

Additional Facts :

5. At times relevant to the case Respondent held his life

including variable annuity license (2-14) under an appointment

with Direct Life Insurance Company.

6. At times relevant to the case Respondent had a customer

representative license (4-40) under appointment with Direct

General Insurance Agency, Inc.

7. At present Respondent continues to hold the life

including variable annuity license (2-14) under an appointment

with Direct General Life Insurance Company. At present he has a

general lines license property and casualty license (2-20) under

appointments with Direct General Insurance Company and American

Bankers Insurance Company of Florida.

8. On February 8, 2005, Brandi Dean called Cash Register

to receive a quote for the purchase of basic automobile

insurance coverage. She was provided a quote at that time.

9. On February 8, 2005, Brandi Dean, went to the Cash

Register to purchase basic automobile insurance coverage. She

had done business with the insurance agency before. Her policy

with Direct General Insurance Company was Policy No.

FLCR162714439, as reflected in Petitioner's Exhibit numbered 15,

with a scan cover sheet entitled "Renewal Auto." On February 8,

2005, Ms. Dean purchased automobile insurance coverage that

would be effective from February 10, 2005 through February 10,

2006. She was charged $316 for property damage liability (PD)

and $216 for basic injury protection (PIP) for a total of $532,

with a $25 policy fee. The application information within the

exhibit reflects the customer's name, signature, and initials in

various places.

10. On February 8, 2005, Ms. Dean was provided another

form referred to as an Explanation of Policies, Coverages and

Cost Breakdown (including non-insurance products). Petitioner's

Exhibit numbered 16. She signed that document. It reflected

the auto policy coverage information. It also set forth under a

category referred to as optional policies, the purchase of

Lloyd's Accident Medical Protection Plan for $110. Petitioner's

Exhibit numbered 17 is additional information concerning the

Accident Medical Protection Plan application by the customer

signed by her. It details a $110 annual premium for individual

coverage of $1,000 medical expense, and 125/day-365 day hospital

coverage. Within that same exhibit there is a form signed by

the customer titled 100% certain underwriters @ Lloyd's/London

(DB/33) Accident Medical Protection Plan . This reflects $110

cost, $125 daily coverage and the total annual benefit of

$45,625.

11. Petitioner's Exhibit numbered 18 is a scan cover sheet

entitled Renewal Finance with Premium Finance Agreement

Information in association with Direct General Financial

Services, Inc., in which the customer Ms. Dean paid $69.63 down,

financed $599.82, with a total price of $748.61 when considering

the annual percentage rate for financing. This document in

totality was initialed and signed by Ms. Dean.

Ms. Dean was provided a receipt for her cash down-payment on the

purchase. Petitioner's Exhibit numbered 14. Petitioner's

Exhibit numbered 19 is an Insurance Premium Financing Disclosure

Form signed by the customer, reflecting the cost of the

automobile insurance and the hospital indemnity plan, the amount

of total cost and includes the policy fee for the automobile

insurance, document stamp tax, the down payment, and the total

amount financed $599.82.

12. Ms. Dean was left with the impression that she had

only purchased automobile insurance. She believed that the

monthly payments for the financing were only in relation to

automobile insurance.

13. Ms. Dean does not recall having the accidental medical

protection plan explained to her as to its terms. She does not

recall anyone explaining that it was an optional plan

unassociated with automobile insurance. She told the agent that

she dealt with that she was only interested in purchasing the

state-required automobile insurance coverage. Had she realized

that she was purchasing optional accident medical protection,

not part of the automobile insurance purchase, she would have

declined the optional policy.

14. Ms. Dean does recall that the agent she dealt with

made some brief explanation about the documents involved in the

transaction but not every page was explained. Ms. Dean recalls

explanations about the automobile policy but nothing about

optional coverage. Ms. Dean glanced over the documents but did

not read every word included in the documents.

15. Ms. Dean does not recall whom she dealt with on

February 8, 2005. Otherwise, the record does not reflect the

person who sold the automobile insurance and accidental medical

protection plan to her at that time.

16. At times relevant, Denise Daley Turnbull worked at

Cash Register. She was a customer representative license (4-

40), appointed by Direct General Insurance Agency, Inc.

17. On March 24, 2005, William L. Green, Jr., came to Cash

Register to purchase automobile insurance. He dealt with

Ms. Turnbull. He made a $170.02 down payment for his purchases,

as reflected in Petitioner's Exhibit numbered 4, which is a

receipt provided to Mr. Green. A scan cover sheet related to an

auto policy purchased, together with the application information

for the automobile insurance purchased through Direct General

Insurance Company is found within Petitioner's Exhibit numbered

5. Mr. Green purchased automobile insurance for property damage

liability (PD) in the amount of $590 and basic personal injury

protection (PIP) for $370, with a $25 policy fee, totaling $985.

He signed and initialed parts of the forms in association with

the automobile insurance. Ms. Turnbull also signed forms in

association with the automobile insurance.

18. Petitioner's Exhibit numbered 6 is an explanation of

policies, coverages and cost breakdown (including non-insurance

products) reflecting the overall purchases by Mr. Green. He

signed that form. It relates the automobile insurance purchase.

It also relates the purchase of an American Bankers Travel

Protection Plan for $60, a Lloyd's Accidental Medical Protection

Plan for $110 and life insurance of $98. With fees and other

costs the total purchase was $1270.99.

19. Of relevance here, Petitioner's Exhibit numbered 9 is

a scan cover sheet in relation to the life policy signed by

Ms. Turnbull. It also includes application information to

Direct Life Insurance Company with certain questions reflected

that were initialed by the purchaser. Mr. Green signed the

application. Respondent also signed the application, as well as

printing his name and insurance license number on the form.

20. Petitioner's Exhibit numbered 10 is a scan cover sheet

for a New Finance with Direct General Financial Services, Inc.,

which reflects a $162.03 down-payment, $1105.17 in amount

financed, with a $129 finance charge. The total sales price for

all purchases was $1396.20, to include the life insurance with

Direct Life Insurance Company. Mr. Green signed the premium

finance agreement. Petitioner's Exhibit numbered 11 is a copy

of the Insurance Premium Finance Disclosure Form signed by

Mr. Green.

21. Ms. Turnbull has no recollection of the Respondent's

participation in the sale of the life insurance policy to

Mr. Green. She does recall that Respondent was in the insurance

agency office when the life insurance was purchased. She

recognizes Respondent's signature in association with the life

insurance application and purchase.

22. Mr. Green had no intention of purchasing life

insurance when he went to Cash Register on March 24, 2005. He

recalls dealing with Ms. Turnbull. No one else sat with

Mr. Green and explained policy information to him.

Specifically, Respondent did not sit with Mr. Green and offer

explanations about the policy. Mr. Green did not see Respondent

sit with Ms. Turnbull and Respondent remained silent while she

sold the life policy. Had Mr. Green realized that he was

purchasing life insurance he would have declined the

opportunity.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding in accordance with Sections 120.569 and 120.57(1),

Florida Statutes (2006).

24. This is a disciplinary case. Therefore, Petitioner

has the burden of proving the allegations in the Administrative

Complaint by clear and convincing evidence. See § 120.57(1)(j),

Fla. Stat. (2006); see also Department of Banking and Finance

Division of Securities and Investor Protection v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); and Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3rd DCA 1998).

25. In pertinent part the Administrative Complaint

alleges:

* * *

3. At all times relevant to the dates and

occurrences referenced herein you, JIBRI

KHALEID KNIGHT, were employed or affiliated

with Direct General Insurance Agency, Inc.,

a Tennessee corporation, doing business in

Florida as Cash Register.

Count I

* * *

5. On or about March 24, 2005, Customer

Representative Denise D. Turnbull (Florida

Insurance Identification Number E159113)

sold a term life insurance policy to William

L. Green. Ms. Turnbull was not licensed to

sell this insurance product and her having

done so was a violation of Sections

624.11(1), 626.112(2), 626.611(4),

626.611(7), 626.611(13), and 626.621(2),

Florida Statutes, and Rules 69B-213.050(3),

and 213.110(3), Florida Administrative Code.

6. You, JIBRI KHALEID KNIGHT, signed the

forms associated with this transaction and

in so doing aided and abetted Ms. Turnbull

in a violation of the insurance code.

IT IS THEREFORE CHARGED that you, JIBRI

KHALEID KNIGHT, have violated or are

accountable under one or more of the

following provisions of the Florida

Insurance Code, which constitutes grounds

for the suspension or revocation of your

licenses as an insurance agent in this

state:

(a) No person shall transact insurance in

this state, or relative to a subject of

insurance resident, located, or to be

performed in this state, without complying

with the applicable provisions of this code,

[Section 624.11(1), Florida Statutes].

(b) If the license or appointment is

willfully used, or to be used, to circumvent

any of the requirements or prohibitions of

this code. [Section 626.611(4), Florida

Statutes].

(c) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance. [Section 626.611(7), Florida

Statutes].

(d) 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. [Section 626.611(13), Florida

Statutes].

(e) 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 appointment.

[Section 626.621(2), Florida Statutes].

(f) Knowingly aiding, assisting, procuring,

advising, or abetting any person in the

violation of or to violate a provision of

the insurance code or any order or rule of

the department, commission, or office.

[Section 626.621(12), Florida Statutes].

COUNT II

* * *

8. On or about February 8, 2005, you, JIBRI

KHALEID KNIGHT, sold to Brandi Dean an

Accident Medical Protection Plan without her

informed consent.

IT IS THEREFORE CHARGED that you, JIBRI

KHALEID KNIGHT, have violated or are

accountable under one or more of the

following provisions of the Florida

Insurance Code, which constitutes grounds

for the suspension or revocation of your

licenses as an insurance agent in this

state:

(a) No person shall transact insurance in

this state, or relative to a subject of

insurance resident, located, or to be

performed in this state, without complying

with the applicable provisions of this code.

[Section 624.11(1), Florida Statutes].

(b) If the license or appointment is

willfully used, or to be used, to circumvent

any of the requirements or prohibitions of

this code. [Section 624.611(4), Florida

Statutes].

(c) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance. [Section 624.611(7), Florida

Statutes].

(d) Fraudulent or dishonest practices in

the conduct of business under the license or

appointment. [Section 624.611(9), Florida

Statutes].

(e) 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. [Section 626.611(13), Florida

Statutes].

(f) 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.

[Section 626.621(2), Florida Statutes].

(g) Violation of any lawful order or rule

of the department, commission, or office.

[Section 626.621(3), Florida Statutes].

(h) In the conduct of business under the

license or appointment, engaging in unfair

methods of competition or in unfair oar

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.

[Section 626.621(6), Florida Statutes].

(i) No person shall engage in this state in

any trade practice which is defined in this

part as, or determined pursuant to s.

626.951, or s. 626.9561 to be, an unfair

method of competition or an unfair or

deceptive act or practice involving the

business of insurance. [Section 626.9521(1),

Florida Statutes].

(j) Representing to the applicant that a

specific ancillary coverage or product is

required by law in conjunction with the

purchase of insurance when such coverage or

product is not required. [Section 626.9541

(1)(z)1., Florida Statutes].

(k) Representing to the applicant that a

specific ancillary coverage or product is

included in the policy applied for without

an additional charge when such charge is

required. [Section 626.9541(1)(z)2.,

Florida Statutes].

(l) Charging an applicant for a specific

ancillary coverage or product, in addition

to the cost of the insurance coverage

applied for, without the informed consent of

the applicant. [Section 626.9541(1)(z)3.,

Florida Statutes].

26. If the violations are proven Petitioner intends to

impose discipline under the provisions set forth in Sections

624.15, 626.611, 626.621, 626.681, 626.691, 626.9521, Florida

Statutes (2004), and Florida Administrative Code Chapter 69B-

231.

27. To understand the statutory references within the

Administrative Complaint, resort is made to definitions set forth

in Section 626.015, Florida Statutes (2004), which states in

pertinent part:

* * *

(2) "Agent" means a general lines agent,

life agent, health agent, or title agency,

or all such agents, as indicated by context.

The term "agent" includes an insurance

producer or producer, but does not include a

customer representative, limited customer

representative or service representative.

(3) "Appointment" means the authority given

by an insurer or employer to a licensee to

transact insurance or adjust claims on

behalf of an insurer or employer.

(4) "Customer representative" means an

individual appointment by a general lines

agent or agency to assist that agent or

agency in transacting the business of

insurance from the office of that agent or

agency.

(5) "General lines agent" means an agent

transacting any one or more of the following

kinds of insurance:

(a) Property insurance.

(b) Casualty insurance, including

commercial liability insurance underwritten

by a risk retention group, a commercial

self-insurance fund as defined in

s. 624.462, or a workers' compensation self-

insurance fund established pursuant to s.

624.4621.

(c) Surety insurance.

(d) Health insurance, when transacted

by a insurer also represented by the same

agent as to property or casualty or surety

insurance.

(e) Marine insurance.

* * *

(9) "License" means a document issued by

the department or office authorizing a

person to be appointed to transact insurance

or adjust claims for the kind, line, or

class of insurance identified in the

document.

(10) "Life agent" means an individual

representing an insurer as to life insurance

and annuity contracts, including agents

appointed to transact life insurance, fixed-

dollar annuity contracts, or variable

contracts by the same insurer.

* * *

28. According to the Administrative Complaint Count I,

Ms. Turnbull's actions in selling the life insurance to William

L. Green was a violation of the following provisions:

Section 624.11(1), Florida Statutes (2004)

Compliance required.--

(1) No person shall transact insurance in

this state, or relative to a subject of

insurance resident, located or to be

performed in this state, without complying

with the applicable provisions of this code.

Section 626.112(2), Florida Statutes (2004):

License and appointment required; agents;

customer representatives, adjusters,

insurance agencies, service representatives,

managing general agents.--

No agent or customer representative shall

solicit or otherwise transact as agent or

customer representative, or represent or

hold himself or herself out to be an agent

or customer representative as to, any kind

or kinds of insurance as to which he or she

is not licensed and appointed.

Section 626.611(4), Florida Statutes:

Grounds for compulsory refusal, suspension,

or revocation of agent's, title agency's,

adjusters, customer representative's,

service representative's, or managing

general agent's license or appointment.--

(4) If the license or appointment is

willfully used, or to be used, to circumvent

any of the requirements or prohibitions of

this code.

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

* * *

(13) Willful failure to comply with, or

willful violation of, any proper order or

rule of the department or willful violation

of any provision of this code.

Section 626.621(2), Florida Statutes:

Grounds for discretionary refusal,

suspension, or revocation of agent's,

adjuster's, customer representative's,

service representative's, or managing

general agent's license or appointment.--

(2) Violation of any provisions of this

code or of any other law applicable to the

business of insurance in the course of

dealing under the license or appointment.

Florida Administrative Code Rule 69B-

213.050(3).

* * *

A customer representative license does not

grant the customer representative any

authority to transact life insurance or

annuities. A customer representative may

only handle duties relating to life

insurance and annuities if such duties may

be performed by unlicensed persons, as

provided in Rule Chapter 69B-222, F.A.C.,

and the insurance Code, or if the customer

representative also holds a life agent

license. This applies even though the

supervising agent holds a life agent license

in addition to a general lines license.

Florida Administrative Code Rule 69B-

213.110(3).

* * *

The customer representative shall exercise

great care in not going beyond the

licensure, training, expertise and

experience and experience of the customer

representative. In the event of uncertainty

as to whether the customer representative is

competent to advise or perform regarding any

insurance matter, the uncertainty shall be

resolved in favor of referring the matter to

the supervising agent.

29. As stated, the Administrative Complaint accuses

Respondent of aiding and abetting Ms. Turnbull in the above-

stated violations of the Insurance Code. The sections that form

the basis for Respondent's alleged violations are comparable to

the provisions related to Ms. Turnbull's conduct, with exception

of Section 626.112(2), Florida Statutes (2004), that is not

referred to when addressing Respondent's conduct nor is mention

made of Florida Administrative Code Rules 69B-213.050(3) and

213.110(3). Unlike the violations pertaining to Ms. Turnbull,

Respondent's actions include an alleged violation of Section

626.621(12), Florida Statutes (2004) which prohibits a person

from:

Knowingly aiding, assisting, procuring,

advising or abetting any person in the

violation of or to violate a provision of

the insurance code or any order or rule of

the department, commission, or office.

30. When Ms. Turnbull sold Mr. Green life insurance, she

did not comply with the Insurance Code as required by Section

624.11(1), Florida Statutes (2004). She did not hold a class

(2-14) agent license appointed under Direct Life Insurance

Company. She was a customer representative (4-40). A customer

representative was not entitled to solicit or transact insurance

business. § 626.112(2), Fla. Stat. (2004). Her actions

contemplate the opportunity to impose discipline against her

license for violation of Sections 626.611(4), (7), and (13),

Florida Statutes (2004), as well as Section 626.621(2), Florida

Statutes (2004).

31. Ms. Turnbull's actions in selling the life insurance

were contrary to the prohibition against a customer

representative transacting life insurance or annuities as

addressed in Florida Administrative Code Rule 69B-213.050(3),

and went beyond her licensure contrary to Florida Administrative

Code Rule 69B-213.110(3).

32. Clear and convincing evidence was presented that

Respondent aided and abetted Ms. Turnbull in violating the

Insurance Code, contrary to Section 626.621(12), Florida

Statutes (2004), when he executed the application by affixing

his name, license number, and signature without further

involvement with the customer Green in the process. The

substance of the life insurance purchase took place between

Mr. Green and Ms. Turnbull. In any solicitation or explanation

leading to the purchase, Respondent willfully used his license

in the category (2-14), to circumvent the prohibitions of the

Insurance Code when assisting Mr. Turnbull's action in the life

insurance sale to Mr. Green. Thus he violated Section

626.611(4), Florida Statutes (2004), as well as Section

626.611(13), Florida Statutes (2004), and Section 626.621(2),

Florida Statutes (2004).

33. In summary, Respondent has violated Count I in the

manner explained.

34. Count II has not been proven. It was not shown that

Respondent sold Brandi Dean an accidental medical protection

plan on February 8, 2005, as alleged.

35. The Administrative Complaint refers to Section 624.15,

Florida Statutes (2004), as a basis for punishment.

It states as follows:

General penalty .--Each Willful violation of

this code as to which a greater penalty is

not provided by another provision of this

code or by other applicable laws of this

state is a misdemeanor of the second degree

and is, in addition to any prescribed of

certificate of authority, license, or

permit, punishable as provided in s. 775.082

or s. 775.083. Each instance of such

applicable denial, suspension, or revocation

violation shall be considered a separate

offense.

That provision is unrelated to administrative discipline.

36. Sections 626.611 and 626.621, Florida Statutes (2004),

allow discipline to be imposed wherein they state:

626.611: Grounds for compulsory refusal,

suspension, or revocation of agent's title

agency's, adjuster's, customer

representative's, service representative's,

or managing general agent's license or

appointment.

* * *

626.621: Grounds for discretionary refusal,

suspension, or revocation of agent's

adjuster's, customer representative's,

service representative's or managing general

agent's license or appointment.

37. Section 626.681, Florida Statutes (2004), allows an

administrative fine to be imposed where it describes the

imposition of an:

Administrative fine in lieu of or in

addition to suspension, revocation,

. . . .

38. Section 626.691, Florida Statutes (2004), allows the

establishment of probation for violations where it states:

626.691 Probation.-

(1) If the department finds that one or

more grounds exist for the suspension,

revocation, or refusal to renew or continue

any license or appointment issued under this

part, the department may, in its discretion,

except when an administrative fine is not

permissible under s. 626.681 or when such

suspension, revocation, or refusal is

mandatory, in lieu of or in addition to such

suspension or revocation, or in lieu of such

refusal or in connection with any

administrative monetary penalty imposed

under s. 626.681, place the offending

licensee or appointee on probation for a

period not to exceed 2 years, as specified

by the department in its order.

(2) As a condition to such probation or in

connection therewith, the department may

specify in its order reasonable terms and

conditions to be fulfilled by the

probationer during the probation period. If

during the probation period the department

has good cause to believe that the

probationer has violated a term or

condition, it shall suspend, revoke, or

refuse to issue, renew, or continue the

license or appointment of the probationer,

as upon the original grounds referred to in

subsection (1).

39. The Administrative Complaint refers to the Section

626.9521, Florida Statutes (2004), which states:

Unfair methods of competition and unfair or

deceptive acts or practices prohibited;

penalties.--

(1) No person shall engage in this state in

any trade practice which is defined in this

part as, or determined pursuant to s.

626.951 or s. 626.9651 to be, an unfair

method of competition or an unfair deceptive

act or practice involving the business of

insurance.

(2) Any person who violates any provision

of this part shall be subject to a fine in

any amount not greater than $2,500 for each

nonwillful violation and not greater than

$20,000.00 for each willful violation.

Fines under this subsection may not exceed

an aggregate amount of $10,000.00 for all

nonwillful violations arising out of the

same action or an aggregate amount of

$100,000 for all willful violations arising

out of the same action. The fines

authorized by this subsection may be imposed

in addition to any other applicable penalty.

No violation was proven concerning this Section that would allow

the imposition of a fine under its terms.

40. Florida Administrative Code Chapter 69B-231, set outs

guidelines for imposing penalties for violations. It has been

consulted in arriving at a recommended penalty in this case.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

of law reached, it is

RECOMMENDED:

That Petitioner enter a final order finding a violation

under Count I as set forth in the conclusions of law, dismissing

Count II and suspending Respondent's license for six months for

the violation.

DONE AND ENTERED this 7th day of May, 2007, in Tallahassee,

Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of May, 2007.

COPIES FURNISHED :

William Gautier Kitchen, Esquire

Gregg Marr, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

L. Michael Billmeier, Jr., Esquire

Galloway, Brennan and Billmeier, P.A.

240 East Fifth Avenue

Tallahassee, Florida 32303

Michael L. Rothschild, Esquire

Larry S. Davis, P.A.

1926 Harrison Street

Hollywood, Florida 33020

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Level 11

Tallahassee, Florida 32399-0307

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.