06-004551PL Department Of Financial Services vs. Timothy M. Crowley Status: Closed Recommended Order on Tuesday, November 27, 2007.

Summary: Respondent committed "sliding" as defined in Section 626.9541(1)(2)3, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4551 PL

)

TIMOTHY MICHAEL CROWLEY , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursua nt to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on February 20, 2007, in

Fort Lauderdale, Florida, and on September 5, 2007, by telephone

between Fort Laud erdale and Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Alan Fox, Senior Attorney

Division of Legal Services

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respon dent: Jed Berman, Esquire

Infantino and Berman

Post Office Drawer 30

Winter Park , Florida 3 2790 - 0030

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent, Timothy

Michael Crowley , comm itted the offenses alleged in an

Administrative Complain t issued by Petitioner, the Department of

Financial Services, on September 14, 2006 , and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On or about September 14, 2006, Petitioner issued a five -

count Administrative Complaint, Petitioner's Cas e No. 86820 - 06 -

AG , alleging that Timothy Michael Crowley had violated certain

statutory provisions governing the conduct of Florida insurance

agents. M r . Crowley, through counsel, filed a DOAH R ule 28 -

107.004 Request for Hearing and an Answer to Administr ative

Complaint dated October 2, 2006, with Petitioner.

A copy of the Administrative Complaint and Mr. Crowley’s

pleadings were filed by Petitioner with the Division of

Administrative Hearings on November 13, 2007 . The matter was

designated DOAH Case No. 0 6 - 4551 PL and was assigned to the

undersigned.

The final hearing was initially scheduled for January 24

and 25, 2007 , by Notice of Hearing entered November 27 , 2006 .

On January 19, 2007, an Unopposed Motion for Continuance was

granted and the hearing was re - scheduled for February 20 and 21,

2007.

At the portion of the final hearing conducted in February

2007 , Petitioner presented the testimony of Charles Rosenthal,

Steven Eng, Xiaoqi Ma, and Carol Davidson. Petitioner also had

admitted Petitioner 's Exhibi ts numbered 3, 4 (without an

attached affidavit), 6 (excluding pages two and three), 7

(without an attached affidavit), 8 (excluding pages two and

three), and 25. M r . Crowley had admitted Respondent's

Exhi bit A .

At the request of Petitioner , and without o bjection by

Mr. Crowley, the record was left open to allow Pe titioner to

take the testimony of Selma Schevers by deposition and to offer

the transcript of her testimony into evidence. It was also

agreed that Mr. Crowley, after hearing Ms. Schevers’ testim ony,

would decide whether he wished to testify or call other

witnesses in response to Petitioner’s case - in - chief .

Ms. Schevers’ deposition testimony was filed with the

Division of Administrative Hearings on May 5, 2007, and has

been, along with the four ex hibits attached thereto and offered

into evidence , considered in issuing this Recommended Order.

On May 8, 2007, a Notice of Hearing was issued scheduling

additional hearing time for June 12, 2007, to allow Mr. Crowley

to testify. That portion of the hear ing was subsequently re -

scheduled several times at the request of the parties.

The conclusion of the hearing was ultimately conducted by

telephone on September 5, 2007. At that time, Mr. Crowley

testified on his own behalf. Additionally, Petitioner had

a dmitted Petitioner’s Exhibit number 10b, and pages two and

three of Petitioner’s Exhibits numbered 6 and 8, which had been

rejected at the February 20, 2007, hearing.

The official Transcript of the portion of the final hearing

conducted on February 20, 200 7, was filed on March 19, 2007.

The official Transcript of the portion of the final hearing

conducted on September 5, 2007, was filed on September 21, 2007.

200 7 . By Notice of F iling Transcript issued September 24 , 2007 ,

the parties were informed that th eir proposed recommended orders

were due on or before November 5 , 20 07. Both parties filed

p roposed r ecommended o rder s timely. Both P roposed R ecommended

O rders have been fully considered in rendering this Recommended

Order.

The events at issue in this ca se were alleged to have taken

place during the end of 2004 and early 2005. Therefore, all

references to the Florida Statutes will be to the 2004

codification unless otherwise noted.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Finan cial Services

(hereinafter referred to as the "Department"), is the agency of

the State of Florida charged with the responsibility for, among

other things, the investigation and prosecution of complaints

against individuals licensed to conduct insurance bu siness in

Florida. Ch. 626, Fla. Stat.

2. Respondent Timothy Michael Crowley was, at the times

relevant, licensed in Florida as a life and health (2 - 18) agent ,

and a g eneral l ines, property and casualty agent . M r . Crowley’s

license number is A058537 .

3. Mr. Crowley, who is 61 years of age, has been an

insurance agent for approximately 30 years. At the time s

relevant to this matter, Mr. Crowley was employed by Insurance

Center of South Florida (hereinafter referred to as “Insurance

Center”). Insurance Center is located in Coral Springs,

Florida.

4. At all relevant times, Mr. Crowley transacted

commercial lines of insurance for Insurance Center.

B. Count I; Xiaoqu Ma and Q - Nails .

5. The Department has abandoned the charges of Count I ,

involving Xiaoqu Ma and Q - Nails, in Department’s Proposed

Recommended Order.

6. The evidence concerning Count I failed to prove the

factual allegations necessar y to support the charges of Count I .

C. Count II; Charles Rosenthal and Cer - Tax, Inc .

7. On or about Decembe r 15, 2004, a letter and three forms

w ere faxed from Mr. Crowl e y on Insurance Center letterhead to

Cer - Tax, Inc. (hereinafter referred to as “Cer - Tax”), an

accounting business owned and operated by Charles Rosenthal.

8. Insurance Center had been providing office general

liability insurance coverage to Ce r - Tax for several years.

Mr. Crowley’s letter was sent to Cer - Tax because it was time for

Cer - Tax to renew its insurance.

9. Mr. Crowley s t ated, in part, the following in his

letter , which was dated Decem ber 10, 2004 , to Cer - Tax :

We are pl eased to offer the following quo te

for the renewal of your expiring office

general liability policy.

North Point Insurance Company

$300,000 General Liability Policy Aggregate

$300,000 General Liability Per Occurance

[sic]

$100,000 Damage to Rented Property of Others

This policy is for premises liability only.

Total annual premium $582.00

This quote is based on the imformation [sic]

provided, subject to loss history

verification, a satisfactory inspection and

co mpliance with all recommendations.

I n order to bind the coverage we will need a

check in the amount of $582.00 and the

enclosed forms signed. You can fax the

forms back to me and then please mail the

originals with your signature.

Please be sure to read the attached notice

of terrorism insurance coverage. This

notice is required by Federal Law and must

be signed at the time of binding.

Please feel free to call in the event you

should have any questions regarding your

coverages or the renewal process.

10. T he three forms attached to the December 10, 2004,

letter for Mr. Rosenthal’s signature included : a “Notice - Offer

of Terrorism Coverage and Disclosure of Premium” form; an

“Applicant Information Section”; and a document titled “Nation

Safe Drivers En rollment Application” (hereinafter referred to as

the “Nation’s Application”). While Mr. Crowley’s letter clearly

indicates that all three forms, including th e Nation’s

Application , had to be signed on behalf of Cer - Tax and a total

payment of $582.00 had to be made “[i]n order to bind the

coverages,” described in the letter as “general liability”

coverage s , the Nation ’ s Application had nothing to do with the

office general liability coverage Cer - Tax desired and

Mr. Rosenthal though t he was renewing .

11. I n fact, the Nation’s Application was for an ancillary

insurance coverage or product that provided accidental death

benefits and membership in a motor club. Insurance Center had

begun selling the Nation Safe Drivers product after Mr. Crowley

became employe d by Insurance Center.

12. In addition to having no direct relationship to the

office general liability c overage Cer - Tax desired and

Mr. Rosenthal was told by Mr. Crowley in his December 10, 2004,

letter Insurance Center was renewing, there was a separate

charge for the Nation Safe Drivers product. The charge was

$100.00 and it was included in the $582.00 charge Mr. Crowley

told Cer - Tax was the total annual premium for Cer - Tax’s renewal

of its office general liability policy.

13. The actual cost of the o ffice general liability

insurance policy was $482.00, a fact which was not explained by

Mr. Crowley to Mr. Rosenthal. Even if Mr. Rosenthal had paid

more attention to the documents he was told to sign , it is

unlikely that Mr. Rosenthal or any other reason able person would

have concluded that he was paying for anything other than the

renewal of Cer - Tax’s office general liability insurance policy.

Nor should Mr. Rosenthal, given Mr. Crowley’s explanation, have

reasonably concluded that the Nation Safe Drive r s product was a

policy separate from the one he thought he was purchasing.

14 . As instructed in the December 10, 2004, letter from

Mr. Crowley, on or about December 16, 2004, Mr. Rosenthal signed

the three documents where they had been marked with an “x” in a

circle. Mr. Rosenthal also included his birth date on the

Nation’s Application. The forms and a check for $582.00 payable

to Insurance Center were returned to Insurance Center.

15 . Insurance Center, while informing Mr. Rosenthal and

Cer - Tax that i t was selling Cer - Tax an insurance product from

North Pointe Insurance Company, actually sold two separate

products: an office general liability policy from North Pointe

Insurance Company; and a Nation Safe Drivers product providing

accidental death benef its and membership in a motor club. The

latter product was not one which Cer - Tax was aware it was

purchasing or one that it desired.

16 . While Mr. Rosenthal is an educated accountant,

authorized to represent clients before the Internal Revenue

Service, h e is not an insurance agent. Mr. Rosenthal, given the

representations in Mr. Crowley’s December 10, 2004, letter ,

acted reasonably in following Mr. Crowley’s instructions and in

not inquiring further about the Nation ’s Application.

D. Count III; Selma Sc hevers and Realty Unlimited, Inc .

17 . O n or about December 10, 2004, a document and three

forms were faxed by Mr. Crowl e y to Realty Unlimited, Inc.

(hereinafter referred to as “Realty Unlimited”), and Selma

Schevers, the owner of Realty Unlimited.

18 . Mr . Crowley stated, in part, the following in the

document:

Insurance Company:

National Insurance Company --- Rated A by

A.M. Best Co.

Business Personal Property

Business property - $25,000.00 per location

#1 & #2, Location #3 $40,000 special form

inclu ding theft valued on a replacement cost

basis. $500 deductible

Theft sublimt [sic] $25,000

Including wind/hail 2% deductible or $1,000

whichever is greater

Any other pe ril deductible - $1,000

Business income $100,000 per location

payable 1/3 ove r 90 days

Commercial General Liability Coverage

General Aggregate: $2,000,000

Per Occurrence: $1,000,000

Products and Completed

Operations: $Excluded

Personal Injury: $1,000,000

Advertising Injury: $Excluded

Fire Damage Leagal [sic]

Liabil ity: $100,000

Medical Payments: $5,000

Deductible $500 per claim – Occurrence Basis

Professional Liabilty

General Aggregate: None

Included in General Liability

Total Annual Premium $5190.00

. . . .

Please sign the two applications, terror ism

form, and the Nations enrollment form.

Please fax back to me with your check and be

sure to mail the original signatures to me.

Also please sign this form and return the

original to me to authorize me to sign your

name to the premium finance agreeme nt.

X________________________

I will bind your coverages as soon as I

receive your check and the faxed signed

forms. I will then send you a certificate

of insurance showing all the coverages are

in effect.

Please call should you have any questions

a bout your coverages or what needs to be

signed .

19 . One of the forms sent to Ms. Schevers was a Nation ’s

Application identical to the one sent to Cer - Tax. While

Ms. Schevers could not remember seeing the Nation’s Ap plication,

she did identify her date o f birth written on the application as

being in her handwriting.

20 . While Mr. Crowley’s letter , unlike the one sent to

Cer - Tax, identifies the Nation’s Application, his letter only

describes the insurance Realty Unlimited was interested in

purchasing, whi ch was business general liability insurance , and

fails to explain what the Nation’s Application i s for .

21 . Mr. Crowley indicates in the document that he will

“bind your coverages as soon as I receive your check and the

faxed signed forms , ” which included the Nation’s Application.

22 . Mr. Crowley also suggested in the document that the

“Total A nnual Premium” of $5,190.00 was for the business general

liability insurance. He failed to inform Realty Unlimited that

the $5,190.00 premium included an additiona l charge of $200.00

for Nation Safe Drivers coverage , coverage which had not be en

requested by Realty Unlimited and was unwanted coverage .

23 . While Ms. Schevers, on behalf of Realty Unlimited,

signed some of the forms sent to her by Mr. Crowley, she did not

sign the Nation’s Application. She returned the signed forms on

or about December 10, 2004 , with a down payment of $1,480.00,

which Mr. Crowley had indicated was acceptable.

24 . The down payment from Realty Unlimited was divided by

the Insurance Cent er, with $1,280.00 being applied toward the

business general liability insurance desired by Realty Unlimited

and $200.00 applied in full payment for Nation Safe Drivers

coverage despite the fact that Ms. Schevers had not signed the

Nation’s Application.

25 . Insurance Center, while informing Ms. Sch evers and

Realty Unlimited that it was selling Realty Unlimited a n

insurance product from National Insurance Company, actually sold

two separate products: a business general liability insurance

policy from Natio nal Insurance Company ; and a Nation Safe

Drivers product providing accidental death benefits and

membership in a motor club. The latter product was not one

which Realty Unlimited was aware it was purchasing, one that it

desir ed, or one for which Ms. Schev ers even signed an

application. Nor was it one, assuming Ms. Schevers saw the

Nation’s Application, Ms. Schevers should have realized was not

part of the insurance product she wished to purchase.

E. Counts IV and V .

26 . The Department has abandoned the charges of Counts IV

and V at hearing and in Department’s Proposed Recommended Order.

27 . No evidence concerning Counts IV and V was presented

at hearing to support the charges of these Counts.

F . Aggravating/Mitigating Factors; Prior Disciplinary

Action Against Mr. Crowley .

28 . In addition to this disciplinary matter, an

Administrative Complaint (hereinafter referred to as the “1997

Administrative Complaint”) was issued against Mr. Crowley on or

about April 2, 1997.

29 . The charges of the 1997 Administ rative Complaint,

which included allegations of wrong - doing similar to those at

issue in this case, w ere resolved by a Consent Order issued

pursuant to a Settlement Stipulation for Consent Order.

30 . Among other things, the Consent Order ordered that

Mr . Crowley cease and desist from using any methods or practices

in the business of insurance which would constitute the act or

practice of “sliding.”

G . Aggravating/Mitigating Factors; Reimbursement of

Premiums .

31 . The premiums paid by Cer - Tax and Realty Unlimited have

been refunded by Mr. Crowley and Insurance Center.

CONCLUSIONS OF LAW

A. Jurisdiction .

32 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (200 7 ).

B. The Burden and Standard of Proof .

33 . The Department seek s to impose penalties against

Mr . Crowley through the Administrative Complaint that include

mandatory and discretionary suspension or revocation o f h is

license . Therefore, the Department has the burden of proving

the specific allegations of fact that support its charges by

clear and convincing evidence. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborn e 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. 3d DCA 1998).

34 . What constitutes "clear and convincing" evidence was

described by the c ourt in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla . 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

C. The Department's Charges .

35 . Section 626.611, Florida Statutes, mandates that the

Department suspend or revo ke the license of any insurance agent

if it finds that the agent has committed any of a number of acts

specified in that Section.

36 . Section 626.621, Florida Statutes, gives the

Department the discretion to suspend or revoke the license of

any insurance agent if it finds that the agent has committed any

of a number of acts specified in that Section.

37 . The Administrative Complaint in this case contains

five counts . The allegations of three of those counts

( Counts I, IV, and V) were not proved by clear and convincingly

evidence. In the remaining two counts (Counts II and III) it is

alleged that Mr. Crowley violated the following statutory

provisions: Sections 626. 6 11(7), (8), and (9) ; 626.621 (2) and

( 6 ) ; and 626.9541(1)(z ) 2. and 3. , Florida Statutes .

38 . Section 626.611, Florida Statutes, provides, in

pertinent part, the following:

The department shall . . . suspend, revoke,

or refuse to renew or continue the license

or appointment of any applicant, agent,

title agency, adjuster, customer

representati ve, 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 more of the following

applica ble 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 transactions authorized by

th e license or appointment;

(9) Fraudulent or dishonest practices in

the conduct of business under the license or

appointment.

. . . .

39 . Based upon the Department’s Proposed Recommended

Order, it appears that the Department has abandoned the charg e

that Mr. Crowley violated Section 626.611(9), Florida Statutes.

It is also concluded that this violation was not proved clearly

and convincingly.

40 . Section 626.621( 2) and ( 6 ), Florida Statutes,

provide s :

The department may, in its discretion, deny

an application for, suspend, revoke, or

refuse to renew or continue the license or

appointment of any applicant, agent,

adjuster, 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

applicant, 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 mandat ory under s. 626.611:

(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.

. . . .

( 6 ) In the conduct of business under the

license or app ointment, 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 source of

injury or loss to the public interest.

41 . Section 626.9541( 1)( z ), Florida Statutes, is contained

within Chapter 626, Part IX, Florida Statutes. This statutory

provision defines "unfair methods of competition and unfair or

deceptive accts or practices , " including the one at issue in

this proceeding:

(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:

. . . .

(z) Sliding. Sliding is the act or

practice of:

. . . .

2. Representing to t he applicant that a

specific ancillary coverage or product is

included in the policy applied for without

an additional charge when such charge is

required; or

3. Charging an applicant for a specific

ancillary covera ge or product, in addition

to t h e cos t of the insurance coverage

applied for, without the informed consent of

the applicant.

42 . Based upon the Department’s Proposed Recommended

Order, it appears that the Department has abandoned the charge

that Mr. Crowley did not comply with Section 626.9 54(1)(z)2.,

Florida Statutes. It is also concluded that this violation was

not proved clearly and convincingly.

D. Summary of Counts II and III .

43 . Summarizing the charges against Mr. Crowley , the

Department has charged him with four offenses:

a. Demo nstrating lack of fitness or trustworthiness;

b . Demonstrating lack of knowledge and technical

competence;

c . Violating pr ovisions of the insurance code by

committing an unfair or deceptive act or practice -- " sliding , " by

falsely selling the Nation Safe D river s coverage to Cer - Tax and

Realty Unlimited without the informed consent o f either

business; and

d. Engaging in unfair methods of competition or in unfair

or deceptive acts or practices in the conduct of his insurance

business, as prohibited under par t IX of this chapter, or having

otherwise shown himself to be a source of injury or loss to the

public interest

44 . All of Mr. Crowley’s violations arise from the

allegation that he has committed “sliding” as defined in Section

626.9541(1)(z), Florida Sta tutes. Based upon the facts of this

case, it has been proved cl early and convincingly that

Mr. Crowley did commit “sliding.”

45. Mr. Crowley should have explained to Cer - Tax and

Realty Unlimited that they were being sold, in addition to the

business liab ility insurance they sought, a product of Nation

Safe Drivers, that the product was optional and that there was

an additional, independent charge for the product. See Thomas

v. Department of Insurance and Treasurer , 559 So. 2d 419 (Fla.

2d DCA 1990). Mr. Crowley did neither .

4 6. More significantly, instead of explaining the

transactions clearly to Cer - Tax and Realty Unlimited,

Mr. Crowley suggested in the explanatory letters he sent to both

businesses , that they would have to execute the Nation’s

Applica tion in order to obtain the coverages they actually

sought and that there was only one total premium being charged.

Neither suggestion was true: they were not required to purchase

the Nation Safe Driver s coverage in order to obtain the

insurance they des ired; and the premium quoted actually was two

premiums.

47. Mr. Crowley’s conduct fits the definition of Section

626. 9541(1)(z), Florida Statutes, in that he is guilty of

“[c]]harging 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.”

4 8 . Mr. Crowley’s suggestion that the application of

Thomas would prohibit any sale of an ancillary product by fax or

mail. This argument is rejected. Mr . Crowley not only failed

to explain the products being sold to Cer - Tax and Realty

Unlimited, he implied that there Cer - Tax and Realty Unlimited

were only purchasing the one product they had requested. He

could have avoided these conclusions by simply exp laining the

letters he sent to both customers that the Nation’s Application

was for a separate product that was not required in order to

purchase the business liability insurance they had sought and

that there was a separate charge for the Nation Safe Driv er s

policy . This he did not do.

49 . It has been prove n , therefore, clearly and

convincin gly that Mr. Crowley, committed sliding as defined in

Section 626.9541(1)(z)3., Florida Statutes. This constituted a

violation of Section 626.621(6), Florida Statute s.

50 . Mr. Crowley’s actions in dealing with Cer - Tax and

Realty Unlimited demonstrate d a lack of fitness or

trustworthiness, in violation of Section 626.611(7), Florida

Statutes.

51 . Mr. Crowley ’s actions demonstrated a lack of knowledge

and technical co mpetence in his suggestion that he was unaware

that his actions in dealing with Cer - Tax and Realty Unlimited

were not improper and did not constitute sliding as defined in

Section 626.611(8), Florida Statutes

5 1 . Finally, it is concluded that, by committi ng sliding

as defined in Section 626.9541 (1)(z)3., Florida Statutes,

Mr. Crowley violated Section 626.621( 6 ), Florida Statutes , by

“engaging in unfair methods of competition or in unfair or

deceptive acts or practices, as prohibited under part IX of this

c hapter, or having otherwise shown himself to be a source of

injury or loss to the public interest.”

E . Penalty .

52 . Florida Administrative Code Rule Chapter 69B - 231

provides guideline penalties for violations of Sections 626.611

and 626.621, Florida Sta tutes. The Department has only pursued

penalties for the violations of Section 626.611(7) and (8),

Florida Statutes, in its Proposed Recommended Order .

53. Florida Administrative Code Rule 69B - 231.080 provides

the following penalty guidelines for the vio lations proved in

this case: a suspension of six months for a violation of

Section 626.611(7), Florida Statutes; and a suspension of six

months for a violation of Section 626.611(8 ), Florida Statutes.

54 . Florida Administrative Code Rule 69B - 231.040, pro vides

the following with regard to the calculation of the appropriate

penalty where multiple violations are found:

(1) Penalty Per Count.

(a) The Department is authorized 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 pena lty 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 aggravating 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 set forth in

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

55 . Florida Administrative C ode Rule 69B - 231.160 provides

the following relevant aggravating and mitigation factors:

(1) For penalties other than those

assessed under Rule 69B - 231.150, F.A.C.:

(a) Willfulness of licensee’s conduct;

(b) Degree of actual injury to victim;

( c) Degree of potential injury to victim;

(d) Age or capacity of victim;

(e) Timely restitution;

(f) Motivation of agent;

(g) Financial gain or loss to agent;

(h) Cooperation with the Department;

(i) Vicarious or personal responsibility;

(j) Related criminal charge; disposition;

(k) Existence of secondary violations in

counts;

(l) Previous disciplinary orders or prior

warning by the Department; and

(m) Other relevant factors.

56 . In this case, the highest prescribed discipli nary

action is a twelve - month suspension (a six - month suspension for

two counts) .

57 . While t he Department has reasonably argued that there

are aggravating circumstances and Mr. Crowley has pointed out

the mitigating factor that Cer - Tax and Realty Unlimit ed were

reimbursed the premiums they w ere charged, thus depriving

Mr. Crowley of any monetary gain therefrom , the Department h as

not requested that the aggregate penalty of twelve months be

increased.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

Department finding that Timothy Michael Crowley violated the

provision s o f Chapter 626, Florida Statutes , described, supra ;

dismissing all other charges; and suspending his lice nse and

appointment for a period of twelve months.

DONE AND ENTERED this 27th day of November , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

LAR RY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 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

t his 27th day of November , 2007 .

COPIES FURNISHED:

Robert Alan Fox, Senior Attorney

Division of Legal Services

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Flor ida 32399 - 0333

Jed Berman, Esquire

Infantino and Berman

Post Office Drawer 30

Winter Park , Florida 3 2790 - 0030

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Da niel Sumner , General Counsel

Department of Financial Services

The Capitol, Plaza 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.