09-005323PL Department Of Financial Services vs. Clyde Janner Holliday, Iv
 Status: Closed
Recommended Order on Friday, October 15, 2010.


View Dockets  
Summary: Wholesale brokers collected premiums from retail agents, but failed to remit the premiums to the insurance company or the program managers for the insurance company.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/17/2011
Proceedings: Motion for Reconsideration of Order of Dismissal filed.
PDF:
Date: 04/18/2011
Proceedings: Notice of Appeal from Final Order filed.
PDF:
Date: 01/03/2011
Proceedings: (Agency) Final Order filed.
PDF:
Date: 12/30/2010
Proceedings: Agency Final Order
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
PDF:
Date: 10/15/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/15/2010
Proceedings: Recommended Order (hearing held June 30, 2010). CASE CLOSED.
PDF:
Date: 08/31/2010
Proceedings: (Petitioner's) Proposed Recommended Order filed.
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: 04/30/2010
Proceedings: Third Joint Response to Order Granting Continuance filed.
PDF:
Date: 04/30/2010
Proceedings: Second Joint Response to Order Granting Continuance filed.
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: 04/27/2010
Proceedings: Respondents' Unopposed Motion for Continuance 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: 03/12/2010
Proceedings: Joint Response to Order Granting Continuance filed.
PDF:
Date: 03/02/2010
Proceedings: Order Granting Continuance (parties to advise status by March 15, 2010).
PDF:
Date: 03/02/2010
Proceedings: Unopposed Motion for Continuance( signed) filed.
PDF:
Date: 03/02/2010
Proceedings: Unopposed Motion for Continuance (unsigned) filed.
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: 02/09/2010
Proceedings: T. Scott Garner Deposition Errata Sheet filed.
PDF:
Date: 02/09/2010
Proceedings: Joseph K. Valuntas Waiver of Reading Deposition filed.
PDF:
Date: 02/08/2010
Proceedings: Notice of Appearance (filed by M. Butler ).
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: 01/29/2010
Proceedings: Respondents' Exhibit List (exhibits not attached) filed.
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: 01/27/2010
Proceedings: Respondents Witness List filed.
PDF:
Date: 01/22/2010
Proceedings: Deposition (of T.Scott Garner) filed.
PDF:
Date: 01/22/2010
Proceedings: Petitioner's Supplemental List of Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 01/22/2010
Proceedings: Notice of Filing Transcript and Exhibits of Proceeding.
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: 01/05/2010
Proceedings: Amended Notice of Taking Deposition (of T. Garner) filed.
PDF:
Date: 12/29/2009
Proceedings: Notice of Appearance (of S. Dennis) filed.
PDF:
Date: 12/29/2009
Proceedings: Notice of Appearance (of S. Dennis) filed.
PDF:
Date: 12/18/2009
Proceedings: Deposition Under Oral Examination of Joseph K. Valuntas filed.
PDF:
Date: 12/18/2009
Proceedings: Notice of Filing Transcript of Proceedings filed.
PDF:
Date: 12/16/2009
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 12/15/2009
Proceedings: Deposition of Donald Kaitz filed.
PDF:
Date: 12/15/2009
Proceedings: Notice of Filing Transcript of Proceeding filed.
PDF:
Date: 12/09/2009
Proceedings: Amended Notice of Taking Deposition filed.
PDF:
Date: 12/09/2009
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 12/08/2009
Proceedings: Notice of Appearance as Co-counsel (of D. Busch) filed.
PDF:
Date: 12/03/2009
Proceedings: Deposition of Carla K. Jinks filed.
PDF:
Date: 12/03/2009
Proceedings: Notice of Filing Transcript of Proceeding 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: 11/09/2009
Proceedings: Notice of Limited Appearance (of D. Busch) filed.
PDF:
Date: 11/05/2009
Proceedings: Notice of Taking Deposition (of J. Valuntas) filed.
PDF:
Date: 11/05/2009
Proceedings: Notice of Taking Deposition (of D. Kaitz) filed.
PDF:
Date: 11/04/2009
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 11/02/2009
Proceedings: Motion to Reschedule Final Hearing Dates filed.
PDF:
Date: 10/15/2009
Proceedings: Order of Pre-hearing Instructions.
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: 10/02/2009
Proceedings: Petitioner's Motion to Consolidate Cases filed.
PDF:
Date: 10/02/2009
Proceedings: Petitioner's Response to Initial Order filed.
PDF:
Date: 09/29/2009
Proceedings: Initial Order.
PDF:
Date: 09/29/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 09/29/2009
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 09/29/2009
Proceedings: Election of Proceeding filed.
PDF:
Date: 09/29/2009
Proceedings: Agency referral filed.

Case Information

Judge:
SUSAN BELYEU KIRKLAND
Date Filed:
09/29/2009
Date Assignment:
09/29/2009
Last Docket Entry:
06/17/2011
Location:
Lakeland, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related Florida Statute(s) (6):