11-006049 Franceline Pierre vs. Department Of Financial Services Status: Closed Recommended Order on Monday, March 26, 2012.

Summary: Petitioner's application for licensure as a Resident General Lines Insurance Agent was properly denied by the Department of Financial Services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCELINE PIERRE , )

)

Petitioner , )

)

vs. ) Case No. 11 - 6049

)

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on February 9, 2012 , by video teleconference, with the parties

appearing in Tallahassee , Florida, before June C. McKinney, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings , who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Franceline Pierre

447 Northeast 195th Street, N umber 317

Miami, Florida 33179

For Respondent: Robert P. Blaesser, Jr., Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether Petitioner's application for lice nsure as a Resident

General Lines Insurance Agent was properly denied by the

Department of Financial Services .

PRELIMINARY STATEMENT

By letter dated September 20 , 2011, the Department of

Financial Service s ("Department" or "Respondent") issued its

Notice o f Denial by which it informed Franceline Pierre ("Pierre"

or "Petitioner") that the Department intended to deny her

application for a Resident General Lines A gent license.

Petitioner challenged the Department's decision and timely

requested a formal hearin g. On November 23, 2011, the Department

referred the case to the Division of Administrative Hearings for

assignment of an Administrative Law Judge to conduct the hearing.

The hearing was held on February 9, 2012. At the final

hearing, Petitioner testifie d on her own behalf and did not

present any exhibits . The Department presented the testimony of

Petitioner, Ga rdonal Marcellot, Otto V. Latimer, Jr. , and Wendi

Cameron. The Department's Exhibits numbered 1 , 3, 6 through 13,

15 through 20, 22, and 24 thro ugh 27 were received into evidence.

The proceeding was transcribed. The one - volume Transcript

was filed with DOAH on March 2 , 2012. The parties availed

themselves of the right to submit proposed recommended orders.

Petitioner late file d her Proposed Reco mmended Order. Respondent

did not object to Petitioner's untimely filing and the

undersigned has considered both Proposed Recommended Orders as

well as the testimony and exhibits presented at hearing in the

preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner owns two insurance agencies, All Florida

Insurance and Tax Services ("All Florida") and One Florida

Insurance Agency, Inc. ("One Florida").

2. On or about January 5, 2010, Gardonal Marcellot

("Marcellot") filled out an application and interviewed with

Petitioner for an insurance agent position. The same day,

Petitioner offered Marcellot a job at All Florida as an insurance

agent . 1 /

3. Marcellot accepted the job and provided Pierre a copy of

his 2 - 20 General Lines Insurance Agent l icense and Social

Security card . Pierre informed Marcellot that his start date for

employment with All Florida would be January 15, 2010.

4. Soon thereafter, there was a major earthquake in Haiti ,

and Petitioner informed Marcellot by email that she had t o go out

of the country to help her family and she was pushing back his

start date with the company.

5. Marcellot never reported to work or started his

employment with All Florida after Pierre left the country. 2 /

6. On or about February 12, 2010, Petitio ner applied for

agency licensure with the Department for All Florida and named

Christopher Jeremie as the Agent in Charge. Pierre also named

Marcellot as the secretary and treasurer of All Florida on the

application. Marcellot n ever held a corporate offi cer position

at All Florida .

7. While operating All Florida, Pierre engaged in all the

activities that require an insurance agent license. She admitted

during the hearing that she ran the office, met with customers by

phone and in person, respond ed to fa x and email insurance

requests, provided insurance quotes for customers, completed

forms for customers, input the insurance information in the

computer to get quotes for customers to review, input the

information online, and processed numerous insurance

ap plications .

8. On February 26, 2010, Petitioner fil l ed out an

application for a Change of Agent in Charge for All Florida and

named Marcellot Agent in Charge without his permission . 3 /

9. Pierre continued to utilize Marcellot's licensure

information and name him Agent in Charge without his permission

to obtain Agency appointments with companies 4 / for at least five

insurance applications.

10. On May 22, 2010, Pierre next utilized Otto Latimer 's

("Latimer") licensure information without his permission and

changed the A gent in C harge for All Florida by naming Latimer to

the position . 5 /

11. On June 22, 2010, Petitioner submitted an Application

for Agency Licensure on line to the Department on behalf of One

Florida and also named Latimer as the Agent in Charge without his

permission .

12. Latimer never worked at or served as Agent in Charge

for All Florida or One Florida .

13. Latimer owns his own business, Service Ace C orporation,

where he works full time . He has b een licensed since 1983 as a

General Lines In surance agent.

14. At some point, Latimer discovered that Pierre was

having problems getting a 2 - 20 license agent. He offered to help

her by allowing her to rent space at his agency location and for

her to work under his license. He never gave her permi ssion or

allowed her to use his license or name him as Agent in Charge for

appointments.

15. Pierre utilized Latimer's licensure information without

his permission for her insurance companies and named him Agent in

Charge for both Universal Property and C asualty Insurance Company

and Citizen s Property Insurance Corporation ("Citizens")

insurance appointments for a total of about 19 insurance

applications .

16. On August 11, 2010, C itizens terminated All Florida's

Agent Appointment Agreement after determini n g that Pierre had

committed forgery and larceny based on false person i fic ation

because Pierre signed Marcellot's name to the agent appointment

application and named him as agent of record.

17. On December 13, 2010, Pierre filed an application with

the De partment for a Resident General Lines Agent license.

18. On December 21, 2010, Petitioner signed and issue d All

Florida check number 1003 to Del Rio D iscount Corp oration, in the

amount of $1 , 000.00. Pierre cut check number 1003 as the gross

down payment on a premium finance agreement dated October 1,

2010 , for the homeowner policy purchased by Bernard and Eleanor

Woodside. The check was returned for insufficient funds.

19. Del Rio Finance filed a complaint with the Department

against Petitioner for Pier re issuing check 1003 on behalf of All

Florida because the check bounced for in sufficient funds.

20. Wendi Cameron ("Cameron") , the Department's

investigator in this matter, started investigating the complaint

in January 2011. She went to Pierre's office location to s ee

Latimer, whom she believed was the Agent in C harge based on the

paperwork Pierre had falsely completed and filed . Latimer was

not present and so Cameron spoke to Pierre, who told Cameron that

Latimer was out of the office.

21. On May 29, 2011, w hile Pierre's insufficient funds

investigation was still pending, Cameron received another

complaint about Pierre namely that Citizens Insurance Company had

terminat ed Pierre's appointment after being advised by Marcellot

that Pierre had used his i dentity without his knowledge and

forged his name on applications.

22. Cameron visited Petitioner's office three times d uring

Petitioner's investigation s and an Agent in C harge was never

present. Pierre was managing the office on each visit. On th e

four th visit to the office , it was closed with a note on the

door. Cameron was never able to sp eak to an A gent in C harge and

was always informed that one was not available each time she

called or visited.

23. The Department concluded its investigation of Pie rre

and denied her application for licensure based on the

Department's sections 626.112(1)(a) , (b)4, 626.112(9),

626.172(2) , (3), 626.611(7 ), (8), 626.621(2),(3), and (6).

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction ove r the subject matter of this proceeding and the

parties thereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

25. Petitioner is the person seeking licensure in this

proceeding. To prevail, Petitioner bears the ultimate burden of

proving e ntitlement to a license and that she meets all of the

relevant statutory criteria for obtaining a license. Dep 't of

Banking & Fin . v. Osborne Stern & Co . , 670 So. 2d 932 (Fla.

1996).

26. Chapter 626 , Florida Statutes, under which Respondent's

denial of a 2 - 20 General Line Insurance Agent l icense has been

denied, sets forth the acts for which the Respondent may deny a

license.

27. Several statutory provisions are relevant to the

Department's determination regarding Petitioner's eligibility for

licensure. For instance, s ection 626.201 provides:

* * *

(2) The department or office may, upon

completion of the application, make such

further investigation as it may deem

advisable of the applicant's character,

experience, background, and fitness for the

lic ense or appointment. Such an inquiry or

investigation shall be in addition to any

examination required to be taken by the

applicant as hereinafter in this chapter

provided.

28. Section 626.211 provides that under certain

circumstances, the Department is compelled to deny licensure to

an applicant. Section 626.611 provides in pertinent part:

The department shall deny application for .

. . the license or appointment of any

applicant, . . . if it finds that as to the

applicant, . . . any one or more of t he

following applicable grounds exist:

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

( 8 ) Demonstrated lack of reasonably adequate

knowledge and technical competence to engage

in the transactions a uthorized by the license

or appointment.

29. Section 626.621 also provides the Department grounds

for discretionary refusal to deny licensure to an applicant.

Section 626.621 provides in pertinent part :

The department may, in its discretion, deny

an app lication for . . . the license or

appointment of any applicant . . . 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 competitio n or in unfair or

deceptive acts or practices, as prohibited

under part IX of this chapter, or having

otherwise shown himself or herself to be a

source of injury or loss to the public.

30. Pierre admitted at hearing that she operated as a n

insurance agen t by solici ting insurance , giving individual quotes

in an attempt to persuade customers to purchase an insurance

product , processing applications, as well as complet ing orders or

applications for insurance products , which actions all require

licensing purs uant to sections 626.112(1)(a) and (b)4. Further,

Pierre signed the applications for First Florida and One Florida

but falsely named both the officers and A gent in C harge on her

application s contrary to the requirement to correctly do so in

section 626.17 2 (2)(e) . Pierre's noncompliance with sections

626.112(1)(a) , (b)4, and 626.172(2)(e), are grounds for denial of

licensure pursuant to section 626.621(2) .

31. The Department also alleges that Petitioner's license

should be denied because she committed a f elony of the third

degree by knowingly transact ing insurance or otherwise engag ing

in insurance activities without a license pursuant to section

626.112(9). The aforementioned st at ute designates a felon y of

the third degree punishable under the criminal p rovisions. The

undersigned does not have the jurisdiction to determine such

matters that are handle d in circuit court . Therefore, section

626.112 (9) is not a ground for denial of Pierre's license in this

case .

32. The credible evidence also demonstrates that

Petitioner 's actions of forging licensees names on insurance

license applications demonstrate a lack of fitness or

trustworthiness to engage in the business of insurance . Further,

Pierre acted and held herself out as a licensed in surance agent

and f alsely named persons a s the Agent in Charge of All Florida

and One Florida, which are violation s of section 626.611(7) , a

ground for denial of licensure .

33. The evidence also shows Pierre did not have adequate

knowledge and technical competence to engage in the transactions

authorized by her company's appointments in violation of section

626.611(8) . Further, Pierre acted like an insurance agent

processing applications and issued an insufficient All Florida

check , a nother ground for denial of licensure .

3 4. The record is void of any evidence to demonstrate

Petitioner violated any lawful order or rule of the department,

commission, or office pursuant to section 626.621(3) , and

therefore, such an allegation is not a ground for denial of

Pierre's license.

35 . In this case, Petitioner has failed to satisfy h er

burden to establish a legal basis that s he is entitled to a

General Lines Insurance Agent license in that the credible

evidence shows that Pierre violated numerous statutes , as found

above, that prevent her from obtaining licensure with the

Department .

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and

Conclusions of Law reached , it is RECOMMENDED that the Department

of Financial Services enter a final order denying Petitioner's

appl ication for licensure as a General Lines Insurance Agent in

the State of Florida.

DONE AND ENTERED this 26th da y of March , 2012 , in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

Administrative Law Judge

Division o f 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 26th day of March , 201 2 .

ENDNOTE S

1 / Marcellot denied any knowledge of Pierre hiring him as the

Agent in Charge for All Florida. Such testimony is found to be

credible .

2 / Marcellot denied ever reporting to work a t All Florida or

working there. Such testimony is found to credible .

3 / There was conflicting testimony as to whether Marcellot

provided Pierre permission to use his name or authorized his

appointment as Agent in Charge for All Florida. Marcellot's

te stimony is found to be more credible.

4 / University Property Casual ty Insurance C ompany and Citizens

Property Insurance Corporation were two of the insurance

companies with which Petitioner utilized Marcellot's name and

information without his permission .

5 / Latimer denied allowing Petitioner use of his licensure

information or providing her permission to name him Agent in

Charge. Latimer's testimony is found to be more credible than

Pierre .

COPIES FURNISHED:

Julie Jones, CP, FRP, Agency Clerk

Depart ment of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

Robert P. Blaesser, Jr., Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0 333

[e-mail]

Franceline Pierre

447 Northeast 195th Street, Number 317

Miami, Florida 33179

[e-mail]

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 issu e the Final Order in this case.