09-004714PL
Department Of Financial Services vs.
Clyde Janner Holliday, Iii
Status: Closed
Recommended Order on Friday, October 15, 2010.
Recommended Order on Friday, October 15, 2010.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF FINANCIAL )
12SERVICES , )
14)
15Petitioner , )
17)
18vs. ) Case No. 09 - 4714PL
25)
26CLYDE JANNER HOLLIDAY, III , )
31)
32Respondent . )
35)
36DEPARTMENT OF FINANCIAL )
40SERVICES, )
42)
43Petitioner, )
45)
46vs. ) Case No. 09 - 5323PL
53)
54CLYDE JANNER HOLLIDAY, IV, )
59)
60Respondent. )
62)
63RECOMMENDED ORDER
65Pursuant to notice, a final hearing was held in th e s e case s
80on January 28 and February 1 and 22 , 2010, by video
91teleconference in Tallahassee and Lakeland, Florida, and on
99June 30, 2010, in Lakeland, Florida, before Susan B. Harrell, a
110designated Administrative Law Judge of the Division of
118Administrative Hearings.
120APPEARANCES
121For Petitioner: David J. Busch, Esquire
127Melinda Hilton Butler, Esquire
131Department of Financial Services
135Division of Legal Services
139612 Larson Building
142200 East Gaines Street
146Tallahassee, Florida 32399 - 0333
151For Respondent s : Sarah H. Dennis, E squire
160411 Lithia Pinecrest Road
164Brandon, Florida 33511
167STATEMENT OF THE ISSUES
171The issues in this case are whether Respondents violated
180Subsections 626.611(7), 626.611(9), 626.611(10), and
185626.611(13), Florida Statutes (2008) , 1 and, if so, what
194discipline should be imposed.
198PRELIMINARY STATEMENT
200On August 11, 2009, Petitioner, Department of Financial
208Services (Department), filed a six - count Administrative
216Complaint against Respondent, Clyde Janner Hollid ay, III
224(Mr. Holliday, III), and a six - count Administrative Complaint
234against Clyde Janner Holliday, IV (Mr. Holliday, IV). Both
243Administrative Complaints alleged that Respondents violated
249Subsections 626.611(7), 626.611(9), 626.611(10), and
254626.611(13), Florida Statutes. Respondents requested
259administrative hearings, and the cases were forwarded to the
268Division of Administrative Hearings for assignment of an
276Administrative Law Judge to conduct the final hearings. By
285Order dated October 15, 2009, the ca ses were consolidated.
295The cases were scheduled for final hearing on December 9,
305and 10, 2009. The Department filed a motion to continue, which
316was granted, and the final hearing was rescheduled for
325January 28, 2010, but was continued because certain exhi bits had
336been filed untimely. The final hearing reconvened but was not
346concluded on February 1, 2010. The f inal h earing was reconvened
358on February 22, 2010, and Petitioner's Exhibits 5 and 6 were
369admitted in evidence. The f inal h earing was not concluded on
381February 22, 2010, and, after several continuances, the final
390hearing was reconvened and concluded on June 30, 2010.
399At the final hearing, the Department presented the
407deposition testimony of Carla Jinks, Donald Kaitz, Maria
415Castellanos, Joseph Valunta s, and Scott Garner. Petitioner's
423Exhibits 1 through 6 and 8 were admitted in evidence.
433Petitioner's Exhibit 7 was proffered, but not admitted. At the
443final hearing, Respondents testified on their own behalf.
451Respondent s ' Exhibit 1 was admitted in evid ence.
461The portions of the final hearing conducted on February 1,
4712010, and June 30, 2010, were transcribed and were filed on
482February 24, 2010, and July 19, 2010. The parties requested
492that they be allowed to file their proposed recommended orders
50245 days after the last T ranscript was filed. Their request was
514granted. The Department filed its Proposed Recommended Order on
523August 31, 2010. As of the date of this Recommended Order,
534Respondents have not filed a proposed recommended order.
542FINDINGS OF FACT
5451. At all times material to the allegations in the
555Administrative Complaints, Mr. Holliday, III, was a licensed
563Florida surplus lines (1 - 20) agent, a life and health (2 - 18)
577agent, a general lines (property and casualty) (2 - 20) agent, an
589independent adjust er (5 - 20), and agent in charge at
600International Brokerage and Surplus Lines, Inc. (IBSL).
607Mr. Holliday, III, h a d been associated with IBSL since its
619inception in 1993.
6222. At all times material to the allegations in the
632Administrative Complaint, Mr. Holliday, IV, was licensed in
640Florida as a general lines (2 - 20) agent.
6493. At all times material to the allegations in the
659Administrative Complaint, Mr. Holliday, III, and Mr. Holliday,
667IV, were officers and owners of IBSL. Most recently,
676Mr. Holliday, II I, was the secretary of IBSL. He handled the
688underwriting and risk placement for the agency.
6954. From approximately March 1993 to April 2009,
703Mr. Holliday, IV, was the president of IBSL. As president of
714IBSL, Mr. Holliday, IV's, duties included signing a greements
723which established IBSL's business function as that of a general
733managing agent and signing agreements which empowered IBSL to
742collect premiums on behalf of insureds.
7485. IBSL ceased doing business on May 1, 2009.
7576. In the insurance industry, a common method of procuring
767insurance involves a retail producer, a wholesale broker , and a
777program manager. A customer desiring insurance contacts its
785local insurance agent, which is known as a retail producer, and
796applies for insurance. The retail produ cer has a producer
806agreement with a wholesale broker, who has a producer agreement
816with a program manager. The program manager r epresents
825insurance companies.
8277. The retail producer sends the customer's application to
836the wholesale broker, and the wholes ale broker contacts the
846program manager and forwards the application to the program
855manager. The program manager will provide a quote if the
865insurance company is willing to insure the customer. The quote
875is passed back to the customer via the wholesale b roker and the
888retail producer. If the customer decides to take the insurance,
898the program manager will issue a binder to the wholesale broker,
909who will submit the binder to the retail producer. The
919wholesale broker will issue an invoice for the premium t o the
931retail producer.
9338. The program manager pays a commission to the wholesale
943broker pursuant to its producer agreement with the wholesale
952broker, and the wholesale broker pays a commission to the retail
963producer pursuant to its producer agreement with the retail
972producer. When the retail producer sends the premium payment to
982the wholesale broker, the retail producer will deduct its
991commission. The wholesale broker sends the premium amount to
1000the program manager less the wholesale broker's commission.
10089. If the customer is unable to pay the entire amount of
1020the premium, part of the premium may be financed through a
1031premium finance company. The premium finance company may pay
1040the premium to the retail produ cer or to the wholesale broker.
105210. Internat ional Transportation & Marine Agency, Inc.
1060(ITMA) , is a program manager and is engaged in the business of
1072selling, brokering, and servicing certain lines of policies of
1081insurance written or issued by insurance companies. ITMA is a
1091program manager for Penn sylvania Manufacturers Insurance
1098Association (Pennsylvania Manufacturers), an insurance company.
110411. IBSL, a wholesale broker, entered into a producer's
1113contract with ITMA on January 4, 2008. Wimberly Agency,
1122Incorporated (Wimberly) , is a retail producer located in
1130Ringgold, Louisiana. In 2008, Wimberly had a producer's
1138agreement with IBSL.
114112. Carla Jinks (Ms. Jinks) is the administrative manager
1150for Wimberly. In October 2008, R.L. Carter Trucking (Carter)
1159was a customer of Wimberly and applied for mo tor truck cargo
1171insurance with Wimberly. Wimberly submitted an application to
1179IBSL and requested that coverage be bound effective October 28,
11892008, for Carter.
119213. IBSL contacted ITMA and received a binder for a policy
1203with Pennsylvania Manufacturers. The cost of the policy was
1212$9,500 .00 plus a policy fee of $135 .00 for a total of $9,635 .00 .
1230Carter paid Wimberly $2,500 .00 as a down payment and financed
1242the remainder of the cost with Southern Premium Finance, LLC ,
1252who paid the financed portion directly to Wimberly. Wimberly
1261deducted a ten percent commission of $950 .00 and sent the
1272remainder, $8,635 .00 to IBSL. The check was deposited to IBSL's
1284clearing account.
128614. On January 22, 2009, Carter contacted Ms. Jinks and
1296advised that he had received a noti ce of cancellation effective
1307January 22, 2009, due to non - pay ment to Pennsylvania
1318Manufacturers. On the same date, Ms. Jinks received a facsimile
1328transmission from IBSL , attaching the notice of cancellation and
1337stating: "There was some confusion with the payment we send
1347[sic] and we are working on getting it reinstated. "
135615. There were some e - mails between Wimberly and
1366Mr. Holliday, III , concerning the placement of coverage with
1375another company. IBSL was unable to place coverage for Carter.
1385By e - mail dated January 30, 2009, Ms. Jinks advised
1396Mr. Holliday, III , that she had been able to place coverage for
1408Carter and requested a return of the premium paid on a pro rata
1421basis. She advised Mr. Holliday, III , that the return premium
1431should be $7,651.35. By e - mail dated January 30, 2009,
1443Mr. Holliday, III , stated:
1447We will tender the return as quickly as it
1456is processed by accounting. I do sorely
1463regret the loss of this account, and our
1471inability to get the Tr avelers quote agreed
1479on a timely basis.
148316. By February 19, 2009, Wimberly had not received the
1493return premium from IBSL. Ms. Jinks sent an e - mail to
1505Mr. Holliday, III , on February 19, 2009, asking that the return
1516premium be rushed to Wimberly so that i t could be used to pay
1530for the replacement policy. As of the date of Ms. Jinks'
1541deposition on November 16, 2009, neither Mr. Holliday, III;
1550Mr. Holliday , IV ; nor IBSL had given the return premium to
1561W imberly.
156317. K.V. Carrier Services, Inc. (K.V.) , is a retail
1572producer located in Medley, Florida. I n 2007, K.V. and IBSL
1583entered into a business arrangement with IBSL. Under the
1592arrangement, K.V. was the retailer, IBSL was the wholesale
1601broker, ITMA was the program manager, and Pennsylvania
1609Manufacturers wa s the insurance company.
161518. K.V. collected the down payments for the policy
1624premiums from its customers and sent the down payments to IBSL.
1635The remainder of the premiums were financed by financing
1644companies, who sent the remainder of the premiums to IBS L. IBSL
1656was supposed to send the monies paid for the premiums to ITMA.
166819. The following customers made down payments to K.V. and
1678financed the remainder of their premiums with a financing
1687company.
1688(1) E & E Trucking Service
1694(2) OD Transport, Inc.
1698(3) Fermin Balzald u a
1703(4) Eduardo Bravo
1706(5) Carlos Ramirez
1709(6) Edwin Bello
1712(7) Janet Rodriguez
1715(8) UTL, Inc.
1718(9) Prestige Transport USA
1722(10) JNL Transportation, Inc.
1726(11) Valdir Santos
1729(12) DJ Express
1732(13) PL Fast Carrier
1736(14) Ysis Transport
1739K.V. sent th e down payments for these customers to IBSL. The
1751financing company sent the remainder of the premiums for these
1761customers to IBSL. The total amount of premiums sent to IBSL
1772for these customers was $19,768.45. IBSL did not sen d the
1784premium payments for t hese customers to ITMA. The policies for
1795these customers were cancelled for non - payment.
180320. K.V. found another company that was willing to insure
1813K.V.'s customers. K.V. paid the down payments for the new
1823policies from its own funds, hoping that IBSL wo uld repay the
1835finance company with any unearned premiums that would be
1844returned to IBSL as a result of the cancellations.
185321. ITMA sent an invoice called an Account Current
1862Statement to IBSL for the business conducted in the month of
1873November 2008. The t otal amount owed to ITMA was listed as
1885$55,116.32. The invoice included the premium for the policy
1895issued for Carter, less IBSL's commission. The premiums for the
1905policies issued to Eduardo Bravo; Fermin Bazaldua; JNL
1913Transportation, Inc.; Janet Rodrigue z; OD Transport, Inc.; and
1922Prestige Transport USA were also included in the Account Current
1932Statement for the business that IBSL conducted in November.
1941IBSL was required to pay the $55,116.32 by December 15, 2008,
1953but did not do so.
195822. ITMA received a check from IBSL dated December 31,
19682008, for $25,000 .00 . A notation on the check indicated that it
1982was a partial payment for the November business. The check was
1993unallocated, meaning IBSL did not state to which premiums the
2003partial payment should be appl ied. Mr. Holliday, III, claimed
2013that IBSL had sent a bordereaux along with the check showing to
2025which policies the payment applied. Mr. Holliday, III's,
2033testimony is not credited.
203723. Donald Kaitz (Mr. Kaitz) , the president of ITMA,
2046communicated with on e of the Respondents, who advised Mr. Kaitz
2057that he needed another week or so to collect some premiums from
2069his retail producers. On January 12, 2009, ITMA received a
2079telephone call from IBSL , stating that IBSL could not pay the
2090balance owed to ITMA and t hat ITMA should take whatever action
2102it felt necessary.
210524. As a result of the communication from IBSL, ITMA
2115issued notices of policy cancellation on all applicable policies
2124listed in the Account Current Statement which was to be paid on
2136December 15, 2008 . Copies of the cancellation notices were sent
2147to the insureds and IBSL.
215225. ITMA issued pro rata return premiums based on the
2162number of days that each policy had been in effect. The return
2174premiums were sent to IBSL by a check for $18,790.06.
2185Addition ally, ITMA sent IBSL a list of the policies that had
2197been cancelled, showing the earned premiums which had b een
2207deducted from the $25,000.00.
221226. IBSL received and retained a net of $30,116.32 , which
2223was owed to ITMA. This amount is derived by deducting the
2234$25,000 .00 , which IBSL sent to ITMA , from the $55, 116.32 , which
2247was owed to ITMA.
225127. By letter dated April 2, 2009, IBSL sent K . V . a check
2266for $524.80, which stated:
2270We have totaled all amounts owing to IBSL by
2279KV Carrier Service, and we have totaled all
2287pro rated commissions owing by IBSL to KV
2295Carrier Services for the benefit of your
2302clients and have included our check # 1025
2310in the final amount of $524.80 to settle the
2319account.
2320All net unearned premiums for other than
2327unearned commissions which ar e funded herein
2334you must contact the insurance carriers
2340involved and request payment under the
2346provisions of Florida Statutes #627.7283.
235128. Federal Motor Carriers Risk Retention Group,
2358Incorporated (FMC), is an insurance company , which sells
2366commercial auto liability insurance, specifically targeted to
2373intermediate and long - haul trucking companies. CBIP Management,
2382Incorporated (CBIP), is a managing general underwriter for FMC.
239129. FMC had an agreement effective June 1, 2008, with
2401IBSL , allowing IBSL t o act as a general agent for FMC. As a
2415general agent for FMC, IBSL was given the authority to accept
2426risk on behalf of FMC. IBSL was given a fiduciary
2436responsibility to accept insurance applications, provide quotes,
2443and bind coverage. Once IBSL binds a policy for FMC, FMC issues
2455a policy and is responsible for the risk. IBSL would receive
2466the down payment from the retail agency , and, in most cases, the
2478finance company would pay the balance of the premium directly t o
2490IBSL.
249130. The agreement between FMC and IBSL provided that IBSL
2501was to provide FMC a monthly report of premiums billed and
2512collected, less the agreed commission. The report was due by
2522the 15th of the month following the reported month. In turn,
2533FMC was to issue a statement for the balance due, and IBSL was
2546required to pay the balance due within 15 days of the mailing of
2559the statement following the month in which the policy was
2569written.
257031. In August 2008, FMC began to notice that IBSL was
2581selling premiums lower than FMC's rating guidelines . IBSL owed
2591FMC approximately $186,000 .00 , which was due on August 15, 2008.
2603IBSL sent FMC a check, which was returned for insufficient
2613funds. FMC contacted IBSL and was assured that the check was
2624returned due to a clerical error and an error by the ban k.
2637Assurances were given to FMC that funds would be transferred to
2648FMC the following day; however, FMC did not receive payment
2658until five days later.
266232. In September 2008, Joseph Valuntas (Mr. Valuntas) , the
2671chief operating officer for FMC, paid a visit to Mr. Holliday,
2682III, and Mr. Holliday, IV. Mr. Valuntas expressed his concerns
2692about the delay in receiving payment in August. He also pointed
2703out that IBSL had taken some risks which were not rated properly
2715and that there were some risks in which IBSL w as not following
2728the underwriting guidelines.
273133. After his visit with the Hollidays, Mr. Valuntas wrote
2741a letter to IBSL, restricting IBSL to writing in Florida and
2752limiting the amount of gross written premium to no more than
2763$100,000 .00 per month. IB SL did not adhere to Mr. Valuntas'
2776instructions. An example of IBSL's conduct involved the writing
2785of a policy for Miami Sunshine Tran s fer, which is a risk
2798category designated as public delivery. Public delivery was not
2807a standard that FMC insured and, a s such, was not covered by
2820FMC's reinsurance.
282234. Beginning on or about September 21, 2008, FMC began
2832getting complaints from policyholders and retail agents about
2840cancellations of policies that had been paid timely and in full.
2851Although the retail agent s had paid the premiums in full to
2863IBSL, IBSL had not forwarded the premiums to FMC.
287235. By October 2008, IBSL owed FMC approximately
2880$120,000 .00 in past due premiums. FMC officially terminated the
2891IBSL agreement in October 2008. IBSL sued FMC for breac h of
2903contract.
290436. On December 22, 2008, FMC received a check from IBSL
2915in the amount of $25,122.80, but IBSL did not specify what
2927premiums were being paid by the check.
293437. From February 1, 2006, through November 20, 2008, IBSL
2944had a business relationsh ip with Markel International Insurance
2953Company Limited (Markel), an entity for which IBSL was writing
2963insurance. IBSL was a coverholder for Markel, meaning that IBSL
2973could produce insurance business for Markel and had the
2982authority to collect and process premiums and bind insurance on
2992Markel's behalf.
299438. Once the premiums were collected by IBSL, they were to
3005be reported to Markel, and, within a maximum of 45 days, IBSL
3017was to remit to Markel the aggregate gross written premiums less
3028IBSL's commission.
303039 . T. Scott Garner (Mr. Garner) is an expert auditor and
3042financial analyst who currently works for Northshore
3049International Insurance Services (Northshore), an insurance and
3056reinsurance consulting firm. Markel retained Mr. Garner to
3064determine the amount o f money that IBSL should have sent to
3076Markel for business transacted by IBSL for the period between
3086February 1, 2006, and November 20, 2008.
309340. In doing his analysis, Mr. Garner used the
3102bordereauxs which IBSL prepared and provided to Markel.
3110Bordereau xs are monthly billing reports or accounts receivable
3119reports. Mr. Garner also used data from Omni, which is a
3130software system that was used by IBSL. Mr. Garner used the
3141following procedure to determine what IBSL owed Markel. He
3150determined how much risk IBSL wrote during the time period, that
3161is, the gross written premium. He identified the amount of
3171money that Markel had received from IBSL for the time period.
3182Next he determined the amount that should have been received
3192from IBSL, the gross written pr emiums minus IBSL's commissions.
3202He compared what should have been remitted to Markel with the
3213amount that was actually received by Markel.
322041. Based on his analysis, Mr. Garner calculated that IBSL
3230owed Markel $1,208,656.61. Mr. Garner's analysis is cr edited.
324142. Respondent submitted a FSLSO Compliance Review
3248Summary, which was done by the Florida Surplus Lines Office. At
3259the final hearing, Mr. Holliday, III, viewed the report to mean
3270that Markel was incorrect in the amount of money that was owed
3282to i t by IBSL. The report does not indicate that the policies
3295on which the premium variances were noted were policies issued
3305by Markel. Additionally, in his review, Mr. Garner eliminated
3314duplicate transactions in determining the amount owed to Markel.
3323The r eport did give a long list of policies, which should have
3336been reported to Florida Surplus Lines Office , but IBSL had
3346failed to report the policies .
3352CONCLUSIONS OF LAW
335543. The Division of Administrative Hearings has
3362jurisdiction over the parties to and the subject matter of this
3373proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).
338144. The Department has the burden to establish the
3390allegations in the Administrative Complaint s by clear and
3399convincing evidence. Department of Banking and Finance v.
3407Osbor ne Stern and Company , 670 So. 2d 932 (Fla. 1996).
341845. The Department alleges that Respondents violated
3425Subsections 626.611(7), 626.611(9), 626.611(10), and
3430626.611(13), Florida Statutes, which provide:
3435The department shall deny an application
3441for, suspend , revoke, or refuse to renew or
3449continue the license or appointment of any
3456applicant, agent, title agency, adjuster,
3461customer representative, service
3464representative, or managing general agent,
3469and it shall suspend or revoke the
3476eligibility to hold a licens e or appointment
3484of any such person, if it finds that as to
3494the applicant, licensee, or appointee any
3500one or more of the following applicable
3507grounds exist:
3509* * *
3512(7) Demonstrated lack of fitness or
3518trustworthiness to engage in the business of
3525i nsurance.
3527* * *
3530(9) Fraudulent or dishonest practices in
3536the conduct of business un der the license or
3545appointment.
3546(10) Misappropriation, conversion, or
3550unlawful withholding of moneys belonging to
3556insurers or insureds or beneficiaries or to
3563ot hers and received in conduct of business
3571under the license or appointment.
3576* * *
3579(13) Willful failure to comply with, or
3586willful violation of, any proper order or
3593rule of the department or willful violation
3600of any provision of this code.
360646. Section 626.734, Florida Statutes, provides:
3612Any general lines insurance agent who is an
3620officer, director, or stockholder of an
3626incorporated general lines insurance agency
3631shall remain personally and fully liable and
3638accountable for any wrongful act s,
3644misconduct, or violations of any provisions
3650of this code committed by such licensee or
3658by any person under his or her direct
3666supervision and control while acting on
3672behalf of the corporation. Nothing in this
3679section shall be construed to render any
3686per son criminally liable or subject to any
3694disciplinary proceedings for any act unless
3700such person personally committed or knew or
3707should have known of such act and of the
3716facts constituting a violation of this
3722chapter.
372347. Mr. Holliday, III, and Mr. Hollid ay, IV, are general
3734lines agents who are officers of an incorporated insurance
3743agency, IBSL, and were regularly engaged in the operations of
3753the insurance agency and interacted with representatives of
3761Wimberly, K.V., Markel, FMC, and ITMA. As such, they a re
3772responsible for violations of Section 626.611, Florida Statu te s ,
3782committed by them or the staff of IBSL.
379048. The Department has established by clear and convincing
3799evidence that Respondents violated Subsections 626.611(7),
3805626.611 (9), 626.611 (10), and 626.611 (13), Florida Statutes, by
3815the following actions: collecting premiums on behalf of Markel
3824and not forwarding the premiums to Markel; collecting premiums
3833on behalf of FMC and not forwarding the premiums to FMC;
3844collecting premiums from Wimberly and the financing company who
3853financed Carter's policy premiums and not forwarding those
3861premiums to ITMA; collecting premiums from K.V. and the finance
3871company financing the premiums for K.V.'s clients and not
3880forwarding the premiums to ITMA; and collecting p remiums owed to
3891ITMA and not forwarding those premiums to ITMA. These
3900violations were willful in that Respondents knew that the
3909premiums should have been forwarded to the appropriate insurance
3918company or program and failed to do so.
392649. The Department ha s proven the allegations in Counts I
3937through V of the Administrative Complaints by clear and
3946convincing evidence. No evidence was presented concerning the
3954allegations in Count VI of the Administrative Complaints.
3962Therefore, the Department has failed to e stablished the
3971violations alleged in Count VI.
397650. Florida Administrative Code Rule 69B - 231.040 provides
3985the method for calculating the penalty when there are multiple
3995grounds for discipline and provides:
4000(1) Penalty Per Count.
4004(a) The Department is authorized to find
4011that multiple grounds exist under Sections
4017626.611 and 626.621, F.S., for disciplinary
4023action against the licensee based upon a
4030single count in an administrative complaint
4036based upon a single act of misconduct by a
4045lic ensee. However, for the purpose of this
4053rule chapter, only the violation specifying
4059the highest stated penalty will be
4065considered for that count. The highest
4071stated penalty thus established for each
4077count is referred to as the Ðpenalty per
4085countÑ.
4086(b) T he requirement for a single highest
4094stated penalty for each count in an
4101administrative complaint shall be applicable
4106regardless of the number or nature of the
4114violations established in a single count of
4121an administrative complaint.
4124(2) Total Penalty. E ach penalty per count
4132shall be added together and the sum shall be
4141referred to as the Ðtotal penaltyÑ.
4147(3) Final Penalty.
4150(a) The final penalty which will be imposed
4158against a licensee under these rules shall
4165be the total penalty, as adjusted to take
4173into consideration any aggravating or
4178mitigating factors;
4180(b) The Department may convert the total
4187penalty to an administrative fine and
4193probation if the licensee has not previously
4200been subjected to an administrative penalty
4206and the current action does not involve a
4214violation of Section 626.611, F.S.;
4219(c) The Department will consider the
4225factors set forth in rule subsection 69B -
4233231.160(1), F.A.C., in determining whether
4238to convert the total penalty to an
4245administrative fine and probation.
4249(d) In the event that the final penalty
4257would exceed a suspension of twenty - four
4265(24) months, the final penalty shall be
4272revocation.
427351. Fl orida Administrative Code Rule 69B - 231.080(7)
4282provides that the penalty for violating Subsection 626.611(7),
4290Florida Statutes, is a six - month suspension. Florida
4299Administrative Code Rule 69B - 231.080(9) provides that the
4308penalty for a violation of Subsecti on 626.611(9), Florida
4317Statutes, is a nine - month suspension. Florida Administrative
4326Code Rule 69B - 231.080(10) provides that the penalty for a
4337violation of Subsection 626.611(10), Florida Statutes, is a 12 -
4347month suspension. Florida Administrative Code Rul e 69B -
4356231.080(13) provides that the penalty for a violation of
4365Subsection 626.611(13), Florida Statutes, is a six - month
4374suspension.
437552. The highest penalty per count is a 12 - month
4386suspension; thus, the penalty per count is a 12 - month
4397suspension. The Depa rtment has established the violations in
4406five counts. The total penalty is a 60 - month suspension.
4417However, based on Florida Administrative Code Rule 69B -
4426231.040(d) , the final penalty is revocation because the
4434suspension exceeds 24 months.
4438RECOMMENDATION
4439Based on the foregoing Findings of Fact and Conclusions of
4449Law, it is RECOMMENDED that a final order be entered finding
4460that Respondents committed the violations alleged in Counts I
4469through V of the Administrative Complaints, dismissing Count VI
4478of the Adm inistrative Complaints, and revoking the licenses of
4488Respondents.
4489DONE AND ENTERED this 1 5 th day of October , 2010 , in
4501Tallahassee, Leon County, Florida.
4505S
4506SUSAN B. HARRELL
4509Administrative Law Judge
4512Division of Administrative Hearings
4516The DeSoto Building
45191230 Apalachee Parkway
4522Tallahassee, Florida 32399 - 3060
4527(850) 488 - 9675
4531Fax Filing (850) 921 - 6847
4537www.doah.state.fl.us
4538Filed with the Clerk of the
4544Division of Administrative Hearings
4548this 1 5 th day of October , 2010 .
4557ENDNOTE
45581/ Unless otherwise indicated, all references to the Florida
4567Statutes are to the 200 8 version.
4574COPIES FURNISHED :
4577Sarah H. Dennis, Esquire
4581411 Lithia Pinecrest Road
4585Brandon, Florida 33511
4588David J. Busch, Esquire
4592Melinda Hilton Butler, Esquire
4596Department of Financial Services
4600Division of Legal Services
4604612 Larson Building
4607200 East Gaines Street
4611Tallahassee, Florida 32399 - 0333
4616Julie Jones, CP, FRP, Agency Clerk
4622Department of Financial Services
4626Division of Legal Services
4630200 East Gaines Street
4634Tallahassee, Florida 32399 - 0390
4639Honorable Alex Sink
4642Chief Financial Officer
4645Department of Financial Services
4649The Capitol, Plaza Level 11
4654Tallahassee, Florida 32399 - 0300
4659Benjamin Diamond, General Counsel
4663Department of Financial Services
4667The Capitol, Plaza Level 11
4672Tallahassee, Florida 32399 - 0307
4677NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
4683All parties have the right to submit written exceptions within
469315 days from the date of this Recommended Order. Any exceptions
4704to this Recommended Order shoul d be filed with the agency that
4716will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 10/26/2010
- Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's Supplemental Exhibit numbered 1, to the agency.
- PDF:
- Date: 10/15/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 07/19/2010
- Proceedings: Transcript of Proceedings filed.
- Date: 06/30/2010
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 05/10/2010
- Proceedings: Notice of Hearing (hearing set for June 30, 2010; 9:00 a.m.; Lakeland, FL).
- PDF:
- Date: 04/27/2010
- Proceedings: Order Granting Continuance (parties to advise status by May 7, 2010).
- PDF:
- Date: 04/27/2010
- Proceedings: Petitioner's Response to Respondent's Motion for Continance filed.
- PDF:
- Date: 04/21/2010
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for April 28, 2010; 9:00 a.m.; Lakeland and Tallahassee, FL; amended as to video teleconference and hearing locations).
- PDF:
- Date: 03/15/2010
- Proceedings: Notice of Hearing (hearing set for April 28, 2010; 9:00 a.m.; Lakeland, FL).
- PDF:
- Date: 03/02/2010
- Proceedings: Order Granting Continuance (parties to advise status by March 15, 2010).
- Date: 02/24/2010
- Proceedings: Transcript filed.
- PDF:
- Date: 02/23/2010
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for March 3, 2010; 9:00 a.m.; Lakeland and Tallahassee, FL).
- Date: 02/22/2010
- Proceedings: CASE STATUS: Hearing Partially Held; continued to March 3, 2010; 9:00 a.m.; Lakeland, FL.
- PDF:
- Date: 02/12/2010
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for February 22, 2010; 9:00 a.m.; Lakeland and Tallahassee, FL).
- Date: 02/11/2010
- Proceedings: CASE STATUS: Pre-Hearing Conference Held.
- PDF:
- Date: 02/05/2010
- Proceedings: Respondents' Supplemental Exhibit List (exhibits not available for viewing) (complete) filed.
- PDF:
- Date: 02/05/2010
- Proceedings: Respondents' Supplemental Exhibit List (exhibits not available for viewing) filed.
- Date: 02/01/2010
- Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
- PDF:
- Date: 01/28/2010
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for February 1, 2010; 9:00 a.m.; Lakeland and Tallahassee, FL).
- Date: 01/28/2010
- Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
- PDF:
- Date: 01/22/2010
- Proceedings: Petitioner's Supplemental List of Exhibits (exhibits not available for viewing) filed.
- PDF:
- Date: 01/15/2010
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for January 28 and 29, 2010; 9:00 a.m.; Lakeland and Tallahassee, FL; amended as to video teleconference and Tallahassee location).
- PDF:
- Date: 01/15/2010
- Proceedings: Order Granting Motion to Appear at Tallahassee Site for Video Conference Hearing.
- PDF:
- Date: 01/14/2010
- Proceedings: Petitioner's Motion to Appear At Tallahassee Site For Video Conference Hearing filed.
- Date: 01/13/2010
- Proceedings: Transcript filed.
- PDF:
- Date: 01/13/2010
- Proceedings: Notice of Filing Transcript and Exhibits of Proceeding (exhibits not available for viewing) filed.
- PDF:
- Date: 01/08/2010
- Proceedings: Petitioner's Witness and Exhibit List (exhibits not attached) filed.
- PDF:
- Date: 11/17/2009
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for January 28 and 29, 2010; 9:00 a.m.; Lakeland, FL).
- PDF:
- Date: 11/10/2009
- Proceedings: Petitioner's Amended Notice of Taking Deposition (of J. Valuntas) filed.
- PDF:
- Date: 10/15/2009
- Proceedings: Notice of Hearing (hearing set for December 9 and 10, 2009; 9:00 a.m.; Lakeland, FL).
- PDF:
- Date: 10/15/2009
- Proceedings: Order Granting Motion to Consolidate and Canceling Hearing (DOAH Case Nos. 09-4714PL and 09-5323PL).
- PDF:
- Date: 09/09/2009
- Proceedings: Notice of Hearing (hearing set for November 19, 2009; 9:00 a.m.; Lakeland, FL).
Case Information
- Judge:
- SUSAN BELYEU KIRKLAND
- Date Filed:
- 08/27/2009
- Date Assignment:
- 08/27/2009
- Last Docket Entry:
- 06/17/2011
- Location:
- Lakeland, Florida
- District:
- Middle
- Agency:
- Other
- Suffix:
- PL
Counsels
-
Dean Andrews, Esquire
Address of Record -
David J. Busch, Esquire
Address of Record -
Melinda Hilton Butler, Assistant General Counsel
Address of Record -
Sarah H Dennis, Esquire
Address of Record -
Melinda Hilton Butler, Esquire
Address of Record -
David J Busch, Esquire
Address of Record