11-000714PL Department Of Financial Services vs. Yuray Rodriguez Status: Closed Recommended Order on Friday, September 2, 2011.

Summary: Petitioner failed to demonstrate by clear and convincing evidence that Respondent violated sections 626.611(7) & (8), 626.621(6), and 626.9541, Florida Statutes. Recommend dismissal of Second Amended Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Petitioner, )

)

vs. ) Case No. 11 - 714 PL

)

YURAY RODRIGUEZ , )

)

Respondent. )

________________________________)

RECOMME NDED ORDER

Pursuant to notice, a final hearing was held in this case

before Edward T. Bauer, an Administrative Law Judge of the

Division of Admini str ative Hearings, on July 22 , 2011 , by video

teleconference a t sites in Tallahassee and Miami , Florida.

AP PEARANCES

For Pet itioner: Jacek P. Stramski , Esquire

Douglas D. Dolan , Esquire

Florida Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399

For Respondent: Frank L. Hollander , Esquire

Hollander and Associates, LLC

Two South Biscayne Boulevard

One Biscayne Tower, Suite 1650

Miami, Florida 33131

STATEMENT OF THE ISSUE S

The issues in this case are whethe r Respondent committ ed

the allegations contained in the Second Amended Administrative

Complaint , and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On November 18, 2010, Petitioner, Department of Financial

Services , filed an Administrati ve Complaint agai nst Respondent,

Yuray Rodriguez . Respondent timely requested a formal hearing

to contest th e allegations, and, on February 10, 2011 , the

matter was referred to the Division of A dministrative Hearings

("DOAH").

O n March 3, 2011, Petition er filed a Motion for Leave to

File Amended Administrative Complaint, which was granted on

March 2 8, 2011. Subsequently, on May 18, 2011, Petitioner

requested permission to file a Second Amended Administrative

Complaint, which was likewise granted.

A s noted above, the final hearing in this matter was held

before the undersigned on July 22 , 2011. During the final

hearing, Petitioner presented the testimony of Gabriel San

Quintin , Digna Blanzaco, Rafael Alpizar, and Respondent .

Petitioner introduced t welve exhi bits into evidence, numbered 1,

4, 5, 6, 7, 8, 9, 12, 16, 17, 18, and 19. Respondent presented

the testimony Jorge Ferrer, Lidia Azcue, and Salma Zacur.

Respondent also introduced five exhibits, identified as F, J, L,

M, and N.

The final hearing t ranscript was f iled with DOAH on

August 17 , 2011 . B oth parties timely filed proposed recommended

orders, which the undersigned has considered in the preparation

of this Recommended Order.

Unless otherwise indicated, all rule and statutory

re f erences are to the versions in effect at t he time of the

alleged misconduct .

FINDINGS OF FACT

A. The Parties

1 . Since 1999, Respondent has been licensed in the State

of Florida as a health insurance agent.

2. Pursuant to c hapter 626, Florida S tatutes, Petitioner

Department of Financial Services has regulatory jurisdiction

over licen sed health insurance agents.

B. The Events

3. On or about December 12, 2006, Respondent was appointed

as an agent with SunC oast Physician s Health Plan, Inc.

(" SunCoast") , an insurer that offere d Medicare Advantage HMO

plans. Although Respondent was one of its appointed agents, he

did not receive a salary from SunCoast, nor was he provided an

office. 1

4. In or around January 2007, Respondent was contacted by

telephone by an individual ÏÏ previously unknown to Respondent and

whose name Respondent no longer recalls ÏÏ who claimed that a

local physician was interested in converting a number of

consumers from other coverage to SunCoast.

5. As the conversation pro gressed, it appeared to

Respondent that the individual was presenting a legitimate

business opportunity, as he mentioned the names of severa l of

Respondent's acquaintances. At the conclusion of the call,

Respondent agreed to meet the individual (and the i ndividual's

associate, whose name Respondent likewise does not remember)

later that day at an office building at the intersection of

Flagler Street and Fontainbleau Boulevard in Miami.

6 . Respondent proceeded to the agreed upon location and

met with th e two individuals, both of whom demonstrated

substantial knowledge regarding SunCoast and its benefits.

During the meeting, the two individuals advised that Dr. Abreau,

a physician familiar to Respondent , desired to perform a

membership conversion. As th e discussion progressed , the

individuals presented Respondent with approximately 30

enrollment applications for the SunCoast plan , all of which were

blank with the exception of the pre - printed material .

7 . As a purported sign of " good faith," 2 the two

individuals insisted that Respondent sign each of the form s on

the signature line reserved for persons (e.g., agents or

brokers) who assisted consumers in completing the application.

Respondent ultimately agreed to do so ÏÏ and to allow the unknown

individu als , at their insistence, to temporarily retain the

blank applications bearing his signature ÏÏ with the understanding

that he would return to the office the next morning , at which

point Respondent would speak personally with Dr. Abreau and make

arrangements to meet with the potential enrollees. 3

8 . On the following day , Respondent returned to the office

building to continue with the transaction. Unable to find any

trace of the two individuals, Respondent eventually located a

custodian with in t he building, who advised that the office had

been vacant for "a while . "

9. After repeated attempts over the next several days,

Respondent was able to reach one of the unknown individuals by

telephone, at which time Respondent was informed that the "d eal

was off" and that the enrollment forms would be mailed to him.

10. Although Respondent never received the enrollment

application as promised, he believed ÏÏ based upon his prior

experience in the industry that enrollment forms could only be

submitted t o an insurance company by the ag ent, i.e.,

Respondent ÏÏ that the forms could not be misused and therefore no

further action on his part was necessary . As such, Respondent

never notified SunCoast that third parties were in possession of

blank enrollment for ms that bore his signature.

11. Later during the month of January 2007, one or more

unknown persons submitted approximately 30 enrollment forms (the

same applications signed by Respondent) to SunCoast for

processing. There is no record of who delivered the

applications or by what means.

12. Although SunCoast should have utilized the Center s for

Medicare and Medicaid Services (CMS) computer database to

confirm the accuracy of the personal information of each

applicant that appeared on the forms, Su nCoast did not do so.

Had SunCoast performed such a verification, it would have

discovered that the residential addresses for all of the

applicants were incorrect ÏÏ a clear sign that the applications

were fraudulent .

13. SunCoast processed the applicat ions shortly

thereafter, which resulted in unauthorized changes in health

coverage for approximately 30 persons.

14. In February 2007, Gabrial San Quintin was hired by

SunCoast as its Director of Enrollment and Member

Adm inistration. Shortly ther e after , Mr. San Quintin discovered

that an unusual number of SunCoast's mailings to its enrollees

were being returned due to incorrect address information.

15. Mr. S an Quintin investigated the matter and ultimately

determined th at the January 2007 enrollm ent forms bea ring

Respondent's signature had not been authorized by the persons

whose names appeared on the applications. However, neither

Mr. San Quintin n or any other SunCoast employee notified

Respondent of this information. 4 In fact, Respondent cre dibly

testified that h e did not learn of the improperly submitted

applications until approximately one year after his meeting with

the unknown individuals.

16. Although the approximately 30 applications processed

by SunCoast in January 2007 had not bee n authorized by the

enrollees, SunCoast continued to provide full insurance coverage

until such time that the enrollees were switched back to their

original coverage.

17. During the final hearing, Petitioner presented the

testimony of two of the individ uals whose insurance coverage was

improperly switched to SunCoast pursuant to applications bearing

Respondent's signature : Digna Blanzaco and Rafael Alpizar.

From the testimony of Ms. Blanzaco, it is apparent that she

suffered no financial harm due to th e unauthorized switch, n or

was she denied any medical services . Likewise, there is no

evidence that Mr. Alpizar suffered any physical harm or

financial loss as a result of the improper change in coverage. 5

18. In August 2007, SunCoast became insolvent and was

subsequently liquidated.

19. The undersigned credits Respondent's testimony that:

he was not the person who submitted the applications to SunCoast

in January 2007 and has n o knowledge of who did so; he had no

knowledge that the applications bear ing his signature were going

to be misused in any manner whatsoever , nor did he intend or

desire for the a pplications to be misused; the reason he signed

the forms and left them with the unknown individuals was because

he believed it was necessary to do so in order to preserve what

reasonably appeared to be a legitimate business opportunity ; the

January 2007 incident was the only occasion in which he left

blank applications bearing his signature with third parties ; and

he received no remuneration as a resul t of the fraudulently

submitted applications . The undersigned also finds , based upon

the evidence adduced during the final hearing , that Respondent

acted in good faith at all times in connection with the SunCoast

applications.

C. Ultimate Findings o f Fact

20 . Petitioner has failed to prove by clear and convincing

evidence that Respondent has demonstrated a lack of fitness or

trustworthiness to engage in the business of insurance.

21. Petitioner has failed to adduce clear and convincing

evidence that Respondent has demonstrated the lack of reasonably

adequate knowledge and technical competence to engage in

insurance transactions.

22. Petitioner failed to present clear and convin cing

evidence that Respondent engaged in unfair or deceptive acts or

practices, as defined and proh ibited by Part IX of Chapter 626 ,

Fl orida Statutes, or has otherwise shown himself to be a source

of injury or loss to the public.

CONCLUSIONS OF LAW

A. Jurisdiction

23 . DOAH has jurisdiction over the parties and s ubject

matter of this cause, pursuant to section 120.57(1), Florida

Statutes .

B. The Burden and Standard of Proof

24 . This is a disciplinary proceeding in which Petitioner

seeks to suspend Respondent's licen se. Accordingly, Petitioner

must prove the a llegations in the Second Amended Administrative

Complaint by clear and convincing evidence. Dep't of Banking &

Fin., Div. of Secs. & Investor Prot. v. Osborne Sterne, Inc. ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292 , 294 (Fla. 1 987); § 458.331(3), Fla. Stat.

25 . Clear and convincing evidence:

[R]e quires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and lacking in confusion as to the facts in

issue. The evidence must be of such a

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2 d 797, 800 (Fla. 4th DCA 1983).

C. The Charges Against Respondent

26. In the Second Amended Administrative Complaint,

Petitioner alleges that Respondent violated two provisions of

se ction 626.611, Florida Statutes : section 626.611(7), which

requires the suspension or revocation of an agent's license

where the agent has demonstrated a lack of fitness or

trustworthiness; and section 626.611(8), which mandates

suspension or revocation where the agent has demonstrated a lack

of adequate knowledge and tec hnical competence to engage in

insurance transactions.

27. It is further alleged that Respondent violated section

626.621(6), Florida St atutes, which provides that Petitioner , in

its discretion, can take discip linary action where a licensee

engaged in unfair or deceptive acts or practices.

28. As sections 626.611 and 626.621 are penal in nature,

they must be strictly construed in favor of Respondent. Bowling

v. Dep't of Ins. , 394 So. 2d 165, 172 (Fla. 1st DCA 1981).

29 . Whether Responden t violated these statutes , each o f

which is addressed below, is a question of ultimate fact to be

decided in the context of each alleged violation. McKinney v.

Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

D. Section 626.611(7) & (8)

30. In Counts I, II, and III of the Second Amended

Administrative Complaint, which relate, respectively, to Rafael

Alpizar, Digna Blanzaco, and the remaining enrollees, Petitioner

alleges that Respondent violated section 626.611(7) and section

626.611 (8), which provide :

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 s hall 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:

* * *

(7) Demonstrated lack of fitness o r

trustworthiness to engage in the business of

insurance.

(8) Demonstrated lack of reasonably

adequate knowledge and technical competence

to engage in the transactions authorized by

the license or appointment.

31. At the outset, it is critical to reco gnize that during

the final hearing in this matter, counsel for Petitioner

stipulated, correctly in the undersigned ' s view, that

Respondent's mere act of signing the blank forms ÏÏ on the line

reserved for agents or other persons who helped the potential

enr ollee fill out the form ÏÏ was not improper in and of itself. 6

32. With that stipulation in mind, that undersigned will

begin with the allegation that Respondent lacks the fitness or

trustworthiness necessary to engage in the business of

insurance , contrar y to section 626.611(7).

33. To establish a violation of section 626.611(7), it is

insufficient for Petitioner to demonstrate an act of mere

neglige nce on the part of a licensee. Dep't of Fin. Servs. v.

Brown , Case No. 04 - 765 , 2004 Fla. Div. Adm. Hear . LEXIS 1913

(Fla. DOAH Sept 30, 2004), adopted in toto Dec. 17, 2004.

Rather, as discussed in Brown , Petitioner must adduce clear and

convincing evidence of bad intent, willfulness or fraudulent

conduct:

In order to establish a lack of fitness or

trustwo rthiness to engage in the business of

insurance, the Petitioner would have to

adduce evidence of bad intent, willfulness

or fraudulent conduct. That evidence was

not established in this case. It could be

argued that Respondent was negligent and

used poor financial judgment by selling the

referenced unregistered securities without

inquiring sufficiently into their value, the

level of risk or the accurate status of the

company issuing the securities. However

. . . the establishment of mere negligence

on h is part does not establish a lack of

fitness or trustworthiness because it does

not establish the element of wrongful

intent, willfulness, or fraudulence.

Id. at *23. (Internal citation omitted); see also Hartnett v.

Dep' t of Ins. , 406 So. 2d 1180, 118 4 (Fla. 1st DCA 1981) ( " We

would venture to suggest . . . [that] the element of

' willfulness' found to be necessary in proof of Section

626.611(10) and other violations . . . would be no less

essential in a prosecution relying upon the general, all - purpose

language of Section 616.611(7) " ).

34. Pursuant to the foregoing authority and the findings

of fact contained herein, Petitioner has failed to prove a

violation of section 626.611(7) by clear and convincing

evidence. While Respondent acted imprudently, and perhaps

negligently, by allowing the applications bearing his signature

to remain in the possession of the unknown individuals and by

choosing not to follow up wit h SunCoast when the forms were not

returned to him by mail, Respondent ' s conduct does not evince

bad intent, will fulness, or fraudulent conduct. On the

contrary, Respondent signed the blank forms (at the insistence

of the unidentified individuals) for the sole purpose of

preserving wh at he reasonably perceived as a legitimate business

opportu nity . Further, as found above, Respondent acted in good

faith and neither intended nor knew that the blank applications

bearing his signature would ultimately be misused by other

parties or improperly processed by SunCoast. For these reasons,

Respondent is not guilty of violating section 626.611(7), as

charged in Counts I, II, and III.

35. Next, Petitioner alleges that Respondent is in

violation of section 626.611(8), whic h requires an agent to

possess " reasonably adequate knowledge and technical compe tence

to engage in the transactions authorized by the license or

appointment . " In its Proposed Recommended Order, Petitioner

argues, in part, that Respondent violated this statutory

provision because he " falsely certified that he assisted a

consumer in co mpleting the application." The undersigned

rejects this contention, as it runs afoul of Petitioner' s

stipulation during th e final hearing that Respondent' s mere act

of signing the blank forms was not unlawful or improper.

36. Petitioner further assert s that a violation of section

626.611(8 ) is demonstrated by Respondent' s decision to permit

the applications bearing his signature to remain in the

possession of the unknown individuals and by his failure to

contact SunCoast when the applications were not ultimately

returned .

37. The undersign ed does not agree that an agent' s

inability to clairvoyantly predict criminal misdeeds by others,

standing alone , is sufficient to demonstrate a violation of

section 626.611(8). Rather, the statute contemplates th at

Petitioner present clear and convincing evidence that Respondent

lacked sufficient knowledge and technical competence to explain

insurance products to customers, help them make informed

decisions, and/or enroll them in the plans. In other words, and

st ated simply, it was necessary for Petitioner to prove that

Respondent lacked the knowledge and competence to engage in the

business of insurance . The facts adduced by Petitioner fail to

make such a showing, and therefore , Respondent is not guilty of

viola ting this particular provision. See Dep' t of Fin. Servs.

v. Sibble - McLeod , Case No. 04 - 3423PL, 2005 Fla. Div. Adm. Hear.

LEXIS 855, * 5 - 6 (Fla. DOAH Feb. 23, 2005)(" The Department

offered no evidence, however, to prove that Respondent lacked

knowledge of t he insurance business and lacked technical

competence, in violation of Subsection 626.611(8); rather, the

evidence demonstrates that Respondent understood what was

re quired of her but did not do it" ).

E . Section 626.621(6 )

38 . Petitioner further alleges , in Counts I, II, and III

of the Second Amended Administrative Complaint , that Respondent

is in violation of section 626.621(6), which provides:

626.621 Grounds for discretionary refusal,

sus pension, or revocation of agent's,

adjuster's, customer representative's,

service representative' s, or managing

general agent's license or appointment. The

department may, in its discretion, deny an

application for, suspend, revoke, or refuse

to renew or continue the license or

appointment of any applicant, agent,

adjuster, customer representative, service

representative, or managing general agent,

and it may suspend or revoke the eligibility

to hold a license or appo intment 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 :

* * *

(6) In the conduct of business under the

license or appointment, engaging in unfair

methods of comp etition or in unfair or

deceptive acts or practices, as prohibited

under part IX of this chapter [section

626.9541 , Florida Statutes ] , or having

otherwise shown himself or herself to be a

source of injury or loss to the public.

(Emphasis added).

39 . P ursuant to the foregoing language, a violation of

section 626.621(6) can be establish ed by proving that the

licensee's behavior constituted an unfair method of competition

or unfair or deceptive practice or act, as defined in section

626.9541, or, in the a lternative, by demonstrating that the

licensee has shown himself or herself to be a source of injury

or loss to the public.

40 . As to the first method of proving a violation of

section 626.621(6), Petitioner alleges that Respondent's conduct

was incons istent with the following provisio ns of section

626.9541(1)(e)1.e. and (1)(k)1., which read:

626.9541 Unfair methods of competition and

unfair or deceptive acts or practices

defined.

(1) UNFAIR METHODS OF COMPETITION AND

UNFAIR OR DECEPTIVE ACTS. The f ollowing are

defined as unfair methods of competition and

unfair or deceptive acts or practices:

* * *

(e) False statements and entries. Ï

1. Knowingly :

* * *

e. Causing, directly or indirectly, to be

made, published, disseminated, circulated,

deli vered to any person, or placed before

the public, any false material statement.

* * *

(k) Misrepresentation in insurance

applications.

1. Knowingly making a false or fraudulent

written or oral statement or representation

on, or relative to, an applicat ion or

negotiation for an insurance policy for the

purpose of obtaining a fee, commission,

money, or other benefit from any insurer,

agent, broker, or individual.

41 . The undersigned will begin with section

626.9541(1)(e)1.e., which, pursuant to the lan guage quoted

above, requires proof that Resp ondent: (1) knowingly; (2)

caused, either directly or indirectly; (3) any false material

statement; (4) to be made, published , disseminated, circulated,

delivered to any person, or placed before the public.

42 . In its Proposed Recommended Order, Petitioner ar gues

that Respondent is guilty of violating this statutory provision

because he " fal sely certified that he assisted" consumers in

completing the applications, left the false certifications in

t he possession of third parties, and "failed to explain" when he

was notif ied that the applications were "before the SunCoast

HMO." ( Pet. PRO at 13 - 14; 16).

43. The undersigned disagrees , as Respondent' s act of

signing the blank form s did not create materially fals e

statement s . Th is is because none of the applications contained

any consumer information whatsoev er at the time Respondent

affixed his signature , and as such, it would have been obvious

to any reasonable person looking at the forms (in the co ndition

Resp ondent last saw them ÏÏ blank) that no consumer s had been

assisted. Further, assuming arguendo that materially false

statements were created, Respondent did not do so knowingly , as

required by the statute, because it was his intention to meet

with each pote ntial enrollee prior to submitting the forms to

SunCoast. Finally , to the extent that Petitioner' s theory of

guilt relies upon a finding that Responden t failed to respond to

SunCoast' s (after the fact) inquiries regarding discrepancies in

the applications , the unde rsigned has credited Respondent' s

testimony that he was never contacted by SunCoast. For these

reasons, Petitioner failed to prove a violation of section

626.9541(1)(e)1.e.

44 . Turning to section 626.9541(1)(k)1 . ÏÏ which requires

proof that Res pondent , for the purpose of obtaining a fee or

commission, knowingly made a false or fraudulent written or oral

statement on (or relative to) an application for an insurance

policy ÏÏ Petitioner contends that Respondent has violated this

provision based upon his signing of the blank applications. In

parti cular, Petitioner asserts that " Respondent knowingly made a

false certification that he had assisted an individual in

completing the application used to enroll [ the victims] for the

purpose of obtaining a co mmissi on." (Pet. PRO at 13; 16).

45 . In light of Petitioner' s stipulation during the final

hearing that Respondent did no thing improper by merely affixing

his signature to the blank forms, the undersigned fails to

understand how it ca n now be argued that Respondent' s act of

signing resulted in the creation of a false certification . In

any event, the evidence adduced du ring the final hearing did not

establish that Respondent knowingly made false statements, as he

intended to meet with each of the enr ollees prior to the

submission of the applications to SunCoast. Accordingly,

Respondent is not guilty of violating section 626.9541(1)(k)1.

46 . Finally, the undersigned shall address, in light of

the conclusions regarding section 626.9541, whether Res pondent

violated section 626.621(6) pursuant to the alternative theory

that he has shown himself to be a source of loss or injury to

the public . As noted above, section 626.621(6) authorizes

discipline where an agent:

In the conduct of business under the license

or appointment, engage[es] in unfair methods

of competition or in unfair or deceptive

acts or practices, as prohibited under part

IX of this chapter [section 626.9541 ,

Florida Statutes ] , or ha[s] otherwise shown

himself or herself to be a source of injury

or loss to the public .

(Emphasis added).

47 . It might be tempting to conclude, b ased upon the

foregoing language , that any beh avior by a licensee ÏÏ even

conduct that is in no manner unfair or deceptive ÏÏ is punishable

if it served as a source of i njury or loss to the public. It

appears that Petitioner has taken this position, as it argues:

The record evidence clearly and convincingly

establishes that Respondent violated Section

626.621(6), Fla. Stat. Respondent violated

Section 626.9541(1)(e)1. e. , and Section

626.9541(1)(k) l., Fla. Stat., and indirectly

caused the unwillful enrollment of thirty -

four consumers into the SunCoast HMO,

exposing Respondent's appointing insurer to

potential liability for the provision of

healthcare coverage for individu als that

were not in fact SunCoast HMO customers.

(Pet. PRO at 16) (emphasis added) .

48 . The undersigned concludes, h owever, a pplying the

cannon of statutory construction ejusdem generis , see State v.

Hearns , 961 So. 2d 211, 219 (Fla. 2007)( "[W] hen a general phrase

follows a list of specifics, the general phrase will be

interpreted to include only items o f the same type as those

listed " ), that the conduct which led to the public's injury or

loss is only punishable if it was unfair or deceptive in some

fashion . This construction of the statute avoids the

evisceration of the phrases "unfair methods of competition" and

"unfair or deceptive acts or practices," and prevents the

elevation of innocuous or innocent behavior to the same plane of

unfair or decep tive acts.

49. Returning to the facts at hand, w hile Respondent no

doubt failed to exercise his best judgment in allowing the

unknown individuals to retain possession of the forms and not

notifying SunCoast when the applications were not returned to

him , his behavior in that regard was neither unfair nor

deceptive. As detailed previously, Respondent , who at all times

acted in good faith, signed the forms and acceded to the

requests of the two indi viduals only because he thought it wa s

necessary to furth er a seemingly legitimate business

transaction . In addition, Respondent fully intended to meet

with each potential enrollee and had no desire to cause

unauthorized changes in insurance coverage fo r any individual.

For these reasons, Respondent's actions did not rise to the

level of improper behavior conte mplated by section 626.621(6). 7

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Financial Services

enter an order dismissing the Se cond Amended Administrative

Complaint.

DONE AND ENTERED this 2nd day of September , 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divisio n of Administrative Hearings

this 2nd day of September , 2011 .

ENDNOTES

1 Health insurance agents such as Respondent commonly hold

appointments with multiple insurers.

2 The unknown indi viduals apparently expressed some concern that

Respondent could "go behind their backs" (i.e., go directly to

the physician and cut them out of the transaction), and that

such a possibility would somehow be foreclosed if Respondent

temporarily left the app lications bearing his signature in their

possession.

3 The pre - printed applications read, immediately above

Respondent's signature, "If anyone helped you fill out this

form, s/he must sign the following line."

4 Although the evidence is in conflict o n this point, the

undersigned credits the testimony of Respondent over that of Mr.

San Quintin.

5 Mr. Alpizar was, however, inconvenienced when a test had to be

delayed for approximately 15 days until such time that the

coverage issue was resolved. Th ere is no evidence that the

brief delay placed Mr. Alpizar's health in jeopardy.

6 See Final Hearing Transcript, pages 241 - 242.

7 As Respondent did not engage in unfair or deceptive behavior,

it is not necessary to resolve whether the unauthorized changes

in insurance coverage constitute "injury" within the meaning of

section 626.621(6). Nevertheless, the undersigned is inclined

to believe, contrary t o Respondent's argument, that an unwanted

change in coverage represents a cognizable injury even in the

absence of financial loss or physical harm.

COPIES FURNISHED :

Jacek P. Stramski, Esquire

Douglas D. Dolan, Esquire

Florida Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399

Frank L. Hollander, Esquire

Hollander and Associates, LLC

Two South Biscayne Boulevard

One Biscayne Tower, Suite 1650

Miami, Florida 33131

Julie Jones, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Talla hassee, Florida 32399

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 must be filed with the

agency that wil l issue the final order in this case.