10-008924 Department Of Financial Services vs. Rosette Francesca Berban Status: Closed Recommended Order on Wednesday, June 1, 2011.

Summary: Respondent misrepresented annuity to elderly consumer and sold product not favorable in light of loss penalty and cash.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 10 - 8924

)

ROSETTE FRANCESCA BERBAN , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, on December 2, 2010, a final hearing

was conducted in this case before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH), in Orlando, Florida.

APPEARANCES

For Petitioner: Regina Keenan, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 03 90

For Respondent: Walter A. Ke tcham, Jr., Esquire

Grower, Ketcham, Rutherford,

Bronson, Eide & Telan, P.A.

Post Office Box 538065

Orlando, Florida 32853 - 8065

STATEMENT OF THE ISSUE

Whether R espondent, Rosette Francesca Berban (Respondent),

committed the violations alleged in the Administrative Complaint

issued against her and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 11, 2010, Petitioner, the Department of Financ ial

Services (Petitioner or Department), issued a four - count

Administrative Complaint against Respondent, notifying her that

based on the allegations of wrongdoing made therein, it

"intend[ed] to enter an o rder suspending or revoking [her]

licenses and app ointments as an insurance agent , or to impose

such penalties as may be provided under [the law]." More

specifically, the Department alleged numerous violations of law;

all stemmed from RespondentÓs actions or omissions as a licensed

life, health and varia ble annuity, and life and health insurance

agent. Count I of the complaint set forth facts pertaining to

RespondentÓs client, a Ðsenior consumer,Ñ named Smith. In

dealing with Ms. Smith, Petitioner claimed Respondent had:

willfully used her license or ap pointment to circumvent the

requirements or prohibitions of the insurance code; demonstrated

a lack of fitness or trustworthiness to engage in the business

of insurance; demonstrated a lack of reasonably adequate

knowledge and technical competence to engag e in the transactions

authorized by license or appointment; engaged in fraudulent or

dishonest practices in the conduct of business; willfully failed

to comply with or willfully violated any proper order or rule of

the Department or any provision of the in surance code; engaged

in the conduct of business in unfair methods of competition or

in unfair or deceptive acts or practices, as prohibited under

part IX of Chapter 626 or otherwise being a source of injury or

loss to the public interest; violated the ins urance code of

ethics; failed to treat the business of insurance as a public

trust; made misleading representations for the purpose of

inducing a person to take out a policy of insurance; engaged in

an unfair trade practice; disseminated false information;

knowingly made a false entry or statement pertaining to the

business of insurance; knowingly made a false or fraudulent oral

statement for the purpose of obtaining a fee; made a material

omission of fact regarding a replacement policy; and knowingly

made material omissions tending to induce a person to take out a

policy of insurance. Count II also concerned Ms. Smith , but

related factually to a second encounter between Respondent and

Ms. Smith. The violations alleged in Count II , paralleled the

violation s previously cited.

Count III alleged violations of law , pertaining to

RespondentÓs dealings with a second consumer named DeVita. As

with the prior allegations, Ms. DeVita was a Ðsenior consumer , Ñ

who sought information regarding her insurance needs.

In Cou n t III , Petitioner claimed RespondentÓs actions or

omissions violated the law as described above. Petitioner

withdrew Count IV of the Administrative Complaint.

Respondent denied any wrong - doing connected with either

Ms. Smith or Ms. DeVita , and t imely requested an administrative

hearing to contest the disciplinary action sought by Petitioner.

The matter was forwarded to DOAH for formal proceedings on

September 8, 2010. Thereafter the case was promptly scheduled

for hearing.

At the hearing, Petit ioner presented the testimony of

Respondent, Ezelle Smith, Iris Ashley, Gwen Frasley, Mary Ann

DeVita, and Bill Harrison, Jr. PetitionerÓs Exhibits A

through H were admitted into evidence. Respondent testified on

her own behalf and offered the testimony of Luis Mostow.

RespondentÓs Exhibits 1 through 13, Z , and AA were also received

in to evidence.

The T ranscript of the proceedings was filed with DOAH on

December 20, 2010. The parties were granted ten days within

which to file p roposed r ecommended o rd ers. RespondentÓs request

for an extension of time was granted , and the parties were

afforded additional time within which to file their proposed

orders. Both timely submitted proposed orders that have been

considered in the preparation of this Recommend ed Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

responsibility and authority to regulate insurance and

insurance - related activities within the State of Florida. The

licenses held by Respondent are included within the Peti tionerÓs

authority.

2. At all times material to the issues of this case,

Respondent has been licensed as a life, health and variable

annuity insurance agent, and as a life and health insurance

agent (licensee).

3. At all times material to the issues of this case, all

of Respondent's acts or omission were in the course of her

conducting insurance business as a licensee and agent for Penn

Life - Senior Solutions, Lincoln Financial Group, or Aviva.

4. Ezelle Smith is a female retiree , who resides in

Sanfor d, Florida. At all times material to this case, Ms. Smith

was a "senior consumer , " as that term is used in the statutes.

Ms. Smith was born in 1922 and makes her permanent residence in

Florida.

5. In November 2003, at age 80, Ms. Smith acquired a

defe rred annuity from Pennsylvania Life Insurance Company by

paying a $50,000 .00 premium. This annuity guaranteed Ms. Smith

a certain monthly income for a certain period of time.

6. Prior to January 25, 2008, Ms. Smith contacted Penn

Life - Senior Solutions fo r the purpose of changing her

beneficiary under the previously described annuity.

7. On or about January 25, 2008, Respondent went to

Ms. Smith's home purportedly to handle the change of

beneficiary. At the time of Respondent's visit , Ms. Smith was

85 y ears of age. In discussions between Respondent and Ms.

Smith, the latter opined that she would like more monthly

income.

8. Respondent sold Ms. Smith an equity indexed tax

deferred annuity from Lincoln Financial Group (new annuity).

The premium for th e new annuity was funded, in part, by the

Pennsylvania Life Insurance annuity. The total required to fund

the new annuity was $56,497.97. In addition to the redeemed

annuity, Ms. Smith was required to write a check in the amount

of $10,000.00 , for the di fference in cost. Further, when the

annuity was cashed in, Ms. Smith paid a surrender penalty of

$3,607.43.

9. It is found , Respondent did not fully explain the

surrender penalty that would be incurred in the acquisition of

the new annuity. Because Re spondent did not make full

disclosures regarding the new annuity, Ms. Smith did not

understand the transaction and did not have a full accounting of

the options available to her.

10. Additionally, when Respondent explained the

transaction to Respondent' s daughters, she omitted pertinent

information regarding the surrender penalty. Although the

daughters knew their mother was seeking an increased monthly

income, Respondent did not accurately explain the entire

transaction. Ms. Smith's right to cancel th e new annuity

provided a 20 - day window after the receipt of the policy within

which it was possible to cancel the transaction. Respondent

knew or should have known within the cancellation period that

Ms. Smith was not agreeable to the transaction.

11. Un der the original annuity , Ms. Smith received a

monthly income in the amount of $123.00. Under the new annuity,

the monthly income was increased to $222.00. Mathematically, an

85 - year - old woman would have to wait over three years to recover

the amount sur rendered when the original policy was cashed in.

12. Although Respondent claimed the new annuity was

superior to the original one, Ms. Smith lost the surrender

amount , and $10,000.00 was then tied up in the new annuity. An

annuity is not "more liquid" than cash. In summary, the new

annuity did not afford sufficient benefits to overcome the loss

of the surrender penalty and the loss of liquidity of the cash

for the consumer. Respondent encouraged Ms. Smith to acquire an

inappropriate investment , and th ereby failed to protect the

consumer's best financial interests.

13. Mary Ann DeVita is a Ð senior consumer ,Ñ who resides in

DeBary, Florida, and is a citizen of the S tate of Florida .

Ms. Devita was born in 1935.

14. Prior to April of 2009, Ms. DeVita acquired two

deferred variable annuities from John Hancock Life Insurance

Company. The total invested in the annuities was well over

$550,000 .00 .

15. Ms. DeVita was unhappy with the performance of her

investments and responded to an advertisement plac ed by

Respondent's company. Ms. DeVita sought information as to how

her retirement funds might be better invested to preserve the

principle. Respondent visited Ms. DeVita in her home and

explained options available regarding a new investment.

16. Resp ondent proposed that Ms. DeVita invest in two

equity indexed deferred annuities with Aviva that would be

funded by the John Hancock annuities and Ms. DeVita's stock

market account valued in the amount of $475,000 .00 . In

furtherance of her proposal to Ms. DeVita, Respondent visited

the home on several occasions. Each visit Respondent pitched

the proposal.

17. Respondent filled out the application for the proposed

transaction and eventually Ms. DeVita signed the form.

Ms. DeVita did not want the transac tion to be completed until

her children could review the paperwork and sign off on the

deal. Respondent claimed she would consult with Ms. DeVita's

family and that an additional signature would be needed to

complete the transaction. In fact, no additiona l signatures

were needed.

18. Shortly after learning about the proposed transaction,

Ms. DeVita's son was contacted by Bill Harrison (Ms. DeVitaÓs

insurance agent) . Mr. Harrison was concerned that by

surrendering the John Hancock annuities , Ms. DeVita could

potentially lose the death benefits that were valued at

approximately $286,000 .00 . As a result of

Mr. Harrison's intercession into the matter, Respondent was not

able to complete her proposed transaction.

CONCLUSIONS OF LAW

19. DOAH has jurisdi ction over the parties to and the

subject matter of this proceeding. §§ 120.560 and 120.57, Fla.

Stat. (2010). Unless otherwise noted, all statutory references

will be to Florida Statutes (2010).

20. Petitioner has the burden of proving the specific

allegations of fact that support the charges by clear and

convincing evidence. See Dep Ó t of Banking & Fin . , Div . of Sec . &

Inv . Prot . v. Osborne Stern and Co . , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlingto n , 510 So. 2d 292 (Fla. 1987); and Pou v.

Dep Ót of Ins . & Treasure r , 707 So. 2d 941 (Fla. 3d DCA 1998).

21. Clear and convincing evidence as described by the court

in Evans Packing Co. v. Dep Ó t of Agric . & Consumer Serv s . , 550

So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), is:

. . . [C]lear and convincin g 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. Walke r , 429 So.

2d 797, 800 (Fla. 4th DCA 1983 ).

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

In re D avey , 645 So. 2d 398 (Fla. 1994); and Walker v. Fla . Dep Ó t

of Bus . & Prof Ó l . Reg . , 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp,

J., dissenting).

2 3 . In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate the evidence in light of

the specific allegations of wrongdoing made in the

Administrative Complaint. Due process prohibits the Department

from taking disciplinary action against an agent based on

matte rs not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Trevisani

v. Dep Ó t of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005).

2 4 . The Administrative Complaint in the instant case ,

contains three re maining counts. Counts I and II charged that

Respondent violated s ections 626.611(4), (7), (8), (9), and

(13); 626.621(2), (3), (6), and (9); 626.9521(1); and

626.9541(1)(e)1 . , (1)(e)2 . , (1)(k)1 . , (1)(k)2 . , and (1)(l) ,

Florida Statutes . Count I also alle ged violations of Florida

Administrative Code R ule s 69B - 215.210 and 69B - 215.215.

Count III of the Administrative Complaint , claimed all of the

foregoing violations and s ection 627.4554(4)(a) , Florida

Statutes .

2 5 . Section 626.611 provides, in part:

Gr ounds for compulsory refusal,

suspension, or revocation of agentÓs, title

agencyÓs, adjusterÓs, customer

representativeÓs, service representativeÓs,

or managing general agentÓs license or

appointment. Ï

The department shall deny an

application for, suspend , revoke, or refuse

to renew or continue the license or

appointment of any applicant, agent, title

agency, adjuster, customer representative,

service representative, or managing general

agent, and it shall suspend or revoke the

eligibility to hold a licens e 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:

* * *

(4) If the license or appointment is

willfully used, or to be used, to circumvent

any o f the requirements or prohibitions of

this code.

* * *

(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 trans actions authorized by

the license or appointment.

(9) Fraudulent or dishonest practices in

the conduct of business under the license or

appointment.

* * *

(13) Willful failure to comply with, or

willful violation of, any proper order or

rule of the department or willful violation

of any provision of this code.

2 6 . Section 626.621 provides in part:

Grounds for discretionary refusal,

suspension, or revocation of agentÓs,

adjusterÓs, customer representativeÓs,

service representativeÓs, or managing

gen eral agentÓs license or appointment. Ï

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

representa tive, 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 mandatory under s. 626.611 :

* * *

(2) Violation of any provision of this code

or of any other law applicable to the

business of insurance in the course of

dealing under the license or appointment.

(3) Violation of any lawful order or rule

of the department, commission, or office.

* * *

(6) In the conduct of business under the

license or appointment, 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 or herself to b e a

source of injury or loss to the public.

* * *

(9) If a life agent, violation of the code

of ethics.

2 7 . Section 626.9521 provides, in part:

Unfair methods of competition and unfair or

deceptive acts or practices prohibited;

penalties. Ï

(1) N o person shall engage in this state in

any trade practice which is defined in this

part as, or determined pursuant to s.

626.951 or s. 626.9561 to be, an unfair

method of competition or an unfair or

deceptive act or practic e involving the

business of insurance.

(2) Except as provided in subsection (3),

any person who violates any provision of

this part is subject to a fine in an amount

not greater than $5,000 for each nonwillful

violation and not greater than $40,000 for

e ach willful violation. Fines under this

subsection imposed against an insurer may

not exceed an aggregate amount of $20,000

for all nonwillful violations arising out of

the same action or an aggregate amount of

$200,000 for all willful violations arising

out of the same action. The fines may be

imposed in addition to any other applicable

penalty.

* * *

(4) A licensee must make all reasonable

efforts to ascertain the consumerÓs age at

the time an insurance application is

completed.

2 8 . Section 626 .9541 provides, in part:

Unfair methods of competition and

unfair or deceptive acts or practices

defined.

(1) UNFAIR METHODS OF COMPETITION AND

UNFAIR OR DECEPTIVE ACTS. Ï The following are

defined as unfair methods of competition and

unfair or deceptive acts or practices:

* * *

(e) False statements and entries.

1. Knowingly:

a. Filing with any supervisory or

other public official,

b. Making, publishing, disseminating,

circulating,

c. Delivering to any person,

d. Placing before the public,

e. Causing, directly or indirectly, to

be made, published, disseminated,

circulated, delivered to any person, or

placed before the public,

any false material statement.

2. Knowingly making any false entry of a

material fact in any book, repo rt, or

statement of any person, or knowingly

omitting to make a true entry of any

material fact pertaining to the business of

such person in any book, report, or

statement of such person.

* * *

(k) Misrepresentation in insurance

applications. Ï

1. Knowingly making a false or fraudulent

written or oral statement or representation

on, or relative to, an application or

negotiation for an insurance policy for the

purpose of obtaining a fee, commission,

money, or other benefit from any insurer,

agent, b roker, or individual.

2. Knowingly making a material omission in

the comparison of a life, health, or

Medicare supplement insurance replacement

policy with the policy it replaces for the

purpose of obtaining a fee, commission,

money, or other benefit fro m any insurer,

agent, broker, or individual. For the

purposes of this subparagraph, a material

omission includes the failure to advise the

insured of the existence and operation of a

preexisting condition clause in the

replacement policy.

* * *

(l) Twisting. Ï Knowingly making any

misleading representations or incomplete or

fraudulent comparisons or fraudulent

material omissions of or with respect to any

insurance policies or insurers for the

purpose of inducing, or tending to induce,

any person to la pse, forfeit, surrender,

terminate, retain, pledge, assign, borrow

on, or convert any insurance policy or to

take out a policy of insurance in another

insurer.

2 9 . Section 627.4554 provides, in part:

Annuity investments by seniors. Ï

(1) PURPOSE; CONS TRUCTION. Ï

(a) The purpose of this section is to

set forth standards and procedures for

making recommendations to senior consumers

which result in a transaction involving

annuity products to appropriately address

the insurance needs and financial objec tives

of senior consumers at the time of the

transaction.

* * *

(2) APPLICATION. Ï This section applies to

any recommendation to purchase or exchange

an annuity made to a senior consumer by an

insurance agent, or an insurer where no

agent is involved, and which results in the

purchase or exchange recommended.

(3) DEFINITIONS. Ï For purposes of this

section, the term:

(a) ÐAnnuity contractÑ means a fixed

annuity, equity indexed annuity, fixed

equity indexed annuity, or variable annuity

that is individually solicited, whether the

product is classified as an individual

annuity or a group annuity.

(b) ÐAccredited inve storÑ means any person

who comes within any of the following

categories, or who the issuer reasonably

believes comes within any of the following

categories, at the time of the sale of an

annuity to that person:

1. The personÓs net worth or joint net

wor th with his or her spouse, at the time of

the purchase, exceeds $1 million; or

2. The person had an individual income in

excess of $200,000 .00, in each of the 2 most

recent years, or joint income with his or

her spouse in excess of $300,000 .00, in each

o f those years, and has a reasonable

expectation of reaching the same income

level in the current year.

(c) ÐRecommendationÑ means advice provided

by an insurance agent, or an insurer if no

insurance agent is involved, to an

individual senior consumer whi ch results in

a purchase or exchange of an annuity in

accordance with that advice.

(d) ÐSenior consumerÑ means a person 65

years of age or older. In the event of a

joint purchase by more than one party, a

purchaser is considered to be a senior

consumer if any of the parties is age 65 or

older.

(4) DUTIES OF INSURERS AND INSURANCE

AGENTS. Ï

(a) In recommending to a senior consumer

the purchase or exchange of an annuity that

results in another insurance transaction or

yy series of insurance transactions , an

insurance agent, or an insurer if no

insurance agent is involved, must have an

objectively reasonable basis for believing

that the recommendation is suitable for the

senior consumer based on the facts disclosed

by the senior consumer as to his or her

investments and other insurance products and

as to his or her financial situation and

needs.

30 . Florida Administrative Code Rule 6 9B - 215.210 provides:

Scope. The Business of Life Insurance is

hereby declared to be a public trust in

which service all a gents of all companies

have a common obligation to work together in

serving the best interests of the insuring

public, by understanding and observing the

laws governing Life Insurance in letter and

in spirit by presenting accurately and

completely every fa ct essential to a

clientÓs decision, and by being fair in all

relations with colleagues and competitors

always placing the policyholderÓs interests

first.

31 . Rule 69B - 215.215, provides:

Twisting. Twisting is declared to be

unethical. No person shall make any

misleading representations or incomplete or

fraudulent comparison of any insurance

policies or insurers for the purpose of

inducing, or tending to induce, any person

to lapse, forfeit, surrender, terminate,

retain, or convert any insurance policy, or

to take out a policy of insurance in another

insurer.

32 . Because they are penal in nature, the foregoing

provisions must be strictly construed, with any reasonable

doubts , as to their meaning being resolved in favor of the

licensee. See Beckett v. Dep Ó t of Fin . Servs . , 982 So. 2d 94

(Fla. 1st DCA 2008).

33 . First, with regard to Counts I and II, pertaining to

consumer Smith, the Department has established by clear and

convincing evidence that Respondent violated provisions of law.

Specifically, it is concluded that Respondent mislead Ms. Smith

and her daughters , as to the acquisition of the new annuity.

Ms. Smith was adamant that she would not have made the

transaction if she had fully understood the surrender penalty ;

and t hat Respondent did not fully and accurately disclose the

terms of the transaction was further supported by Ms. Smith's

daughters. For less than $100 .00 per month more in income,

Ms. Smith was required to expend $10,000 .00, of her savings and

the value (less the penalty) of her other annuity. This was not

an advantageous financial decision for Ms. Smith. Ms. Smith

lost the liquidity of her cash as well as $3 , 600 .00 . The

alleged benefits of the new annuity could not justify the

transaction. As a Ð senior consumer ,Ñ Ms. Smith w as entitled to

preferential consideration regarding whether the investment

would be appropriate. Simply stated, Respondent did not put

Ms. Smith's interests first.

34 . As to Count III of the Administrative Complaint, it is

concluded Petitioner failed to meet its burden of proof.

Ms. DeVita was confused and inconsistent in her recollection of

the events and the proposed transaction. In contrast to

Ms. Smith, Ms. DeVita did not recall details or specifics

necessary to conclude that Petitioner met its burden of proof.

With regard to this count, the paper trail alone is insufficient

to verify the representations made to Ms. DeVita. This is

especially true since the proposed transaction was aborted prior

to completion.

35 . The public has an expectat ion of trust in a person

conducting the business of insurance in the State of Florida.

It is concluded Respondent violated that trust.

3 6 . The Department clearly and convincingly proved that

Respondent violated s ection s 626.611(7), 626.621(2), (3), (6),

and (9), and 626.9541 .

3 7 . Florida Administrative Code Rule 69B - 231.080 provides:

If it is found that the licensee has

violated any of the following subsections of

Section 626.611, F.S., for which compulsory

suspension or revocation of license(s) and

app ointment(s) is required, the following

stated penalty shall apply:

(1) Section 626.611(1), F.S. Î revocation

(2) Section 626.611(2), F.S. Î

(a) Suspension 12 months if, had the

license application been accurate, the

application would have been grant ed, based

on the statutes and Department licensing

rules applicable to the application at the

time the Department issued the license, and

the documentation in the applicantÓs file at

the time the Department issued the license,

(b) Revocation if, had the license

application been accurate, the application

would have been denied, based on the

statutes and Department licensing rules

applicable to the application at the time

the Department issued the license.

(3) Section 626.611(3), F.S. Î revocation

(4) S ection 626.611(4), F.S. Î suspension

6 months

(5) Section 626.611(5), F.S. Î suspension

9 months

(6) Section 626.611(6), F.S. Î suspension

9 months

(7) Section 626.611(7), F.S. Î suspension

6 months

( 8) Section 626.611(8), F.S. Î suspension

6 m onths

(9) Section 626.611(9), F.S. Î suspension

12 months

(10) Section 626.611(10), F.S. Î suspension

12 months. This provision does not apply if

the facts constitute a violation of Section

626.753, F.S.

(11) Section 626.611(11), F.S. Î suspension

6 months

(12) Section 626.611(12), F.S. Î suspension

3 months

(13) Section 626.611(13), F.S. Î suspension

6 months

(14) Section 626.611(14), F.S. Î see Rule

69B - 231.150, F.A.C.

(15) Section 626.611(15), F.S. Î suspension

12 months

(16) Section 626. 611(16), F.S. Î suspension

12 months

(17) Section 626.611(17)(a), (c) or (d),

F.S. Î suspension 12 months

(18) Section 626.611(17)(b), F.S. Î

revocation.

3 8 . Rule 69B - 231.090 is entitled, "Penalties for Violation

of Section 626.621 , Florida Statutes ." It specifies the

penalties that may be considered when a violation of s ection

626.621 has been established. The rule provides:

If it is found that the licensee has

violated any of the following subsections of

Section 626.621, F.S., for which suspensi on

or revocation of license(s) and

appointment(s) is discretionary, the

following stated penalty shall apply:

(1) Section 626.621(1), F.S. Î revocation

(2) Section 626.621(2), F.S. Î suspension 3

months

(3) Section 626.621(3), F.S. Î suspension 3

mon ths

(4) Section 626.621(4), F.S. Î suspension 9

months

(5) Section 626.621(5), F.S. Î suspension 6

months

(6) Section 626.621(6), F.S. Î see Rule

69B - 231.100, F.A.C.

(7) Section 626.621(7), F.S. Î suspension 6

months

(8) Section 626.621(8), F.S. Î see Rule

69B - 231.150, F.A.C.

(9) Section 626.621(9), F.S. Î suspension 3

months

(10) Section 626.621(10), F.S. Î suspension

6 months and re - exam

(11) Section 626.621(11), F.S. Î suspension

3 months

(12) Section 626.621(12), F.S. Î suspension

6 mo nths

3 9 . The aggravating and mitigating factors that must be

considered in this case are found in Florida Administrative Code

Rule 69B - 231.160. The rule provides:

The Department shall consider the

following aggravating and mitigating factors

and apply them to the total penalty in

reaching the final penalty assessed against

a licensee under this rule chapter. After

consideration and application of these

factors, the Department shall, if warranted

by the DepartmentÓs consideration of the

factors, either decrease or increase the

penalty to any penalty authorized by law.

(1) For penalties other than those assessed

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

(a) Willfulness of licenseeÓs conduct;

(b) Degree of actual injury to victim;

(c) Degree of potential injury to victim;

(d) Age or capacity of victim;

(e) Restitution to victims;

(f) Motivation of licensee;

(g) Financial gain or loss to licensee;

(h) Financial loss to victim;

(i) Vicarious or personal responsibility;

(j) Related criminal charge; dis position;

(k) Existence of secondary violations in

counts;

(l) Previous disciplinary orders or prior

warning by the Department; and

(m) Violation of any part of Sections

626.9541, and 627.4554. F.S., in relation to

the sale of a life insurance policy or

annuity to a senior citizen; and

(n) Other relevant factors.

(2) For penalties assessed under Rule 69B -

231.150, F.A.C., for violations of Sections

626.611(14) and 626.621(8), F.S.:

(a) Number of years that have passed since

criminal proceeding;

( b) Age of licensee at time the crime was

committed;

(c) Whether licensee served time in jail;

(d) Whether or not licensee violated

criminal probation;

(e) Whether or not licensee is still on

criminal probation;

(f) Whether or not licenseeÓs action s or

behavior resulted in substantial injury to

victim;

(g) Whether or not restitution was, or is

being timely paid;

(h) Whether or not licenseeÓs civil rights

have been restored; and

(i) Other relevant factors.

40 . Having considered the pertinent rules, the age of the

consumer s , as well as , the possible financial harm that was and

potentially could have been inflicted as a result of the

transaction, it is concluded that Respondent's licenses should

be suspended for a period of 180 days . Petitione r failed to

establish Respondent's actions were willful. Instead, giving

Respondent the benefit of the doubt, it is concluded that

Respondent acted without malice , but with great indifference to

the interests of Ms. Smith, her age, and circumstances.

RECO MMENDATION

It is recommended that the Department of Financial Services

enter a final order finding Respondent guilty of the violations

alleged in Counts I and II of the Administrative Complaint as

set forth above, suspending her license for a period of 1 80

days, and imposing an administrative fine in the amount of

$2,500.00 .

DONE AND ENT ERED this 1st day of June , 2011 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of June , 2011 .

COPIES FURNISHED :

Regina M. Keenan, Esquir e

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

Walter A. Ketcham, Jr., Esquire

Grower, Ketcham, Rutherford, Bronson,

Eide & Telan, P.A.

Post Office Box 538065

Orlando, Florida 3285 3 - 8065

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

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.