14-002525F Marta R. De La Paz vs. Department Of Financial Services, Division Of Insurance Agents And Agency Services Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 4, 2015.

Summary: Respondent was not substantially justified in seeking a penalty against Petitioner's insurance agent's license based on the conduct of a subordinate. No special circumstances exist to preclude an award of attorney's fees and costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTA R. DE LA PAZ,

Petitioner,

vs. Case No. 14 - 2525F

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF INSURANCE

AGENTS AND AGENCY SERVICES,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy, by

video teleconference at sites in Tallahassee and Miami, Florida,

on October 23, 2014.

APPEARANCES

For Petitioner: N. Fra ser Schuh, Esquire

704 Southeast Third Avenue Extension

Hallandale, Florida 33009

For Respondent: David J. Busch, Esquire

Department of Financial Services

Division of Legal Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to an award of attorney ' s

fees and costs , associated with defending DOAH Case No. 13 -

3820PL , pursuant to section 57.111 , Florida Statutes (2014) , as a

small business and a prevailing party .

PRELIMINARY STATEMENT

On August 27, 2013, the Department of Financial Services,

Division of Insurance Agents and Agency Services ( DFS ) , filed a n

Administrative Complaint against Marta R. de l a Paz ( de la Paz ).

The Administrative Complaint, consisting of one count, alleged a

violation of section s 626 .611 and 626.724 , Florida Statutes

(2013) , and sought revocation of de la Paz ' s Florida insurance

agent license, No. A182193 (license).

De la Paz timely executed an Election of Proceeding ,

disputed DFS ' factual allegations and requested a formal

administrative hearing. A final hearing was held on December 4 ,

2013 , and January 7, 2014. A Recommended O rder was entered by

the undersigned on March 28, 2014 , which found that DFS failed to

prove, by clear and convincing evidence, that de la Paz knowing ly

aided, assisted, procured, advised , or abetted two unlicensed

entities, International Water Safety Found ation (IWSF), and its

insurance underwriter, North American Marine (NAM), when an agent

working in the Marta de la Paz Agency, Inc. (MDLPA), sold what

was purported to be watercraft insurance in the spring of 2009.

Accordin g ly, it was recommended that no disciplinary action be

taken against the license of de la Paz.

Neither party filed exceptions to the Recommended Order. By

Agency Final Order issued on May 28, 2014, DFS adopted the

Recommended Order in toto.

On May 27, 2014, de la Paz filed a Motion for Attorney ' s

Fees and Costs (Motion) pursuant to Florida Statu t es

section 57.111. In support of the Motion, de la Paz asserted

that she is a prevailing " small business party " within the

meaning of section 57.111(3)(d)1 . c . and entitled to an award of

reasona ble fees and costs because the action of DFS " threatened

her with the destruction of her business and reputation, and the

resulting loss of her source of income. "

Based upon the Motion, the matter was re - styled by the

Clerk ' s Office of the Division of Admi nistrative Hearings as the

instant action. After several unopposed motions for continuances

were granted, a final hearing was held on October 23, 2014.

During the hearing, de la Paz testified on her own behalf

and called Jenny Toledo Mondaca , de la Paz ' s daughter and the co -

owner of MD LP A, as a witness. De la Paz ' s Exhibit 1, the

affidavit of Attorney ' s Fees and Costs, was admitted.

DFS called the following witnesses: Barry Linnear, DFS '

C hief of the Bureau of Investigations; Veronica Renee Jackson,

G ov ernment A n a lyst I for DFS; Matthew Guy, C ommunications

C oordinator for DFS; Shannon Bowes , Allstate employee; and Lidia

Azcue, DFS F ield I nsurance R egional A dministrator. DFS '

Exhibits 1 through 13 , 25 through 28, 30, 32, 33 through 35, 37

through 40, 43, 45, 51, and 52 were admitted i nto evidence.

The final hearing T ranscript, consist ing of two volumes, was

filed on November 12 , 2014. On December 12, 2014, d e la Paz and

DFS timely filed written post - hearing closing arguments and

proposed final orders t hat have been considered in the

preparation of this O rder. De la Paz also filed a Supplement to

Petition seeking to recover the cost of the Transcript of the

final hearing of this case ($831.75).

FINDING S OF FACT

1. DFS is the state agency charged with t he licensing and

regulation of insurance agents in Florida and is responsible for

administrating the disciplinary provisions of chapter 626,

pursuant to section s 20.121(2)(g) and (h), Florida Statutes.

2. At all times material to this case, d e la Paz was a

licensed general lines insurance agent in Florida. De la Paz

also is a dir ector and officer of the MDLPA , which she has co -

owned with her daughter, Jenny Mondaca Toledo (Mondaca) , since

2000.

3 . On October 15, 2003, the Office of Insurance Regulation

i ssued a cease and desist order (Order) against IWSF and NAM from

conducting insurance - related activities in Florida, including but

not limited to, " transacting any new or renewal insurance

business in this state, and from collecting any premiums from

Flori da insureds. "

4. The sale of insurance products by unauthorized entities

(UEs) poses a danger to Florida consumers , because UEs are not

vetted by the Office of Insurance Regulation, their financial

stability is questionable, they may not have sufficient r eserves

to pay claims for consumers, and they do not participate in the

Guarantee Fund wh ich protects consumers should a company become

insolvent.

5. DFS has undertaken a variety of media campaigns in an

effort to warn licensed agents about the dangers an d consequences

of providing insurance products through UEs. DFS regularly

conducts investigations against agents for selling UE products.

Generally, consumers will not know the quality of alleged

insurance provider s until the consumer makes a claim again st

their policy. For this reason, DFS cautions agents to verify the

status of insurance providers prior to selling a policy. Agents

can access the website for the Office of Insurance Regulation or

call to inquire about the status of a particular company. The

website has been available for approximately 17 years.

6. DFS tried to warn Florida insurance agents that IWS F was

a n UE ; however, IWSF was the most prevalent UE selling in

Florida , and approximately 584 consumers were provided with IWSF

policies so ld by various agents.

7. In an effort to stop the sale of insurance products

through IWSF and NAM, DFS obtained a list of Florida customers

from the Canadian bankruptcy receiver of IWSF. DFS ' Bureau of

Investigations sent a survey to these consumers and through the

survey, it was determined that Carlos Guzman (Guzman) and

Jorge Saez (Saez) purchased IWSF watercraft insurance from MDLPA

in April 2009.

8. Field Insurance Regional Administrator Lidia Azcue

(Azcue) and I nvestigator Marlene Suarez (Suarez) op ened an

investigation regarding this transaction. Azcue and Suarez went

to MDLPA on December 4 and 5 , 2012. The alleged violation being

investigated was that the agency sold un authorized products , and

the purpose was to see if any others were being sold. They

did not inform the staff at MDLPA of the reason for the

investigation. De la Paz was not present n or was she interviewed

during these visits. Azcue and Suarez asked for and received the

binder book of MDLPA on a thumb drive. Mondaca was present o n

the first day of the investigation and was described by Azcue as

cooperative. Azcue also requested and received files for other

consumers who purchased marine insurance products from MDLPA.

9. As a result of the investigation , and prior to the

filing o f the Administrative Complaint , DFS obtained the

following information and documentation regarding MDLPA and the

transaction between MDLPA, Saez , and Guzman:

a. De la Paz and her daughter, Mondaca (referred to on the

Bank of America signature card as " Jen ny M. Toledo, President " )

had signature authority for the MDLPA corporate bank account at

Bank of America;

b. An IWSF quote printed April 14, 2009 , for the vessel

owned by Saenz (sic) and Guzman , which was faxed to MDLPA by IWSF

to " Odalis " ( referring to Odaylis Chiullan (Chiullan) , an

employee of MDLPA) which references d e la Paz and MDLPA as the

contact;

c. A fax dated May 6, 2009 , from Chiullan to IWSF asking

IWSF to bind coverage for Guzman and Saez effective May 6, 2009;

d. Undated handwritten notes on a " File Action Log " form

regarding " Jorge Sahel Saez " in the handwriting of Chiullan;

e. A fax dated May 6, 2009 , from IWSF to " Odaylis " at

MDLPA ;

f. An unsigned and undated " Insurance Premium Financing

Disclosure Form " to be signed by Guzman and Sae z, which was

obtained by Ch iul lan from the premium financing company . In

correspondence prior to the issu ance of the A dministrative

C omplaint, d e la Paz advised DFS that it was Chiullan who had the

form signed by Guzman and Saez and transmitted the signed forms

and check for the down payment to the finance company;

g. A receipt prepared by Chiullan dated May 6, 2 009,

acknowledging delivery of $280 .00 as a " down payment " by Guzman

and Saez for financing of a policy with NAM;

h. The premium finance agreeme nt between the finance

company and Guzman and Saez prepared by the finance company and

sent to Chiullan. The agreement is signed by Guzman and by d e la

Paz on behalf of MDLPA as " broker or agent " ;

i. Check number 1138 dated May 6, 2009, and drawn on the

bank account of Guzman payable to the finance company in the

amount of $370 .00 . This check was delivered to Chiullan and

forwarded by her to the finance company along with the signed,

original documents for the financing of the balance of the

insurance pr emiums ;

j. A fax dated May 12, 2009, from NAM to Od a y li s at MDLPA ,

requesting confirmation of the payment plan arranged with Saez

and Guzman;

k . IWSF declaration page for Guzman and Saez;

l. IWSF renewal certificate for Guzman and Saez for the

period of May 6, 2010 , through May 5, 2011 , signed by Guzman on

May 4, 2010; and

m. Correspondence from IWSF to de la Paz at MDLPA dated

May 13, 2010 , returning two checks, one signed by Mondaca and one

signed by d e la Paz , for reissu ance in the name of IWSF.

10. No interviews were conducted as part of the

investigation by DFS of de la Paz , Mondaca, Chiullan , Guzman, or

Saez.

11. After the field investigation was concluded, the

investigative file was forwarded on January 16, 2013, to Veronica

Jackson, Government Analyst I , who reviewed the file for legal

sufficiency.

12. On May 24, 2013, a letter from Kathy Spencer,

Stipulation Program Coordinator with the Office of the Chief

Financial Officer, Jeff Atwater (Atwater), was sent to de la Paz

alleging that she " aide d and abetted an unauthorized entity in

the sale of insurance. " No further details were provided, nor

were any Florida S tatute s cited. Attached to the correspondence

was a proposed settlement stipulation for consent order which

offered de la Paz a $5 , 000 .00 penalty and a one - year period of

probation in lieu of having a formal administrative complaint

filed against her.

13. On June 13, 2013, de la Paz responded with a letter to

Atwater explaining that at no time had de la Paz or anyone at

MDLPA received n otification that IWSF and NAM were not authorized

to sell insurance products in Florida. De la Paz asserted that

Chiullan , who held a 2 20 license and only worked for MDL PA for a

few weeks, was the individual who handled the transaction with

Guzman and Sae z . De la Paz pointed out that to be charged with

violation of section 626.734, d e la Paz , as the licensed agent

and owner of the insurance agency, cannot be subject to

disciplinary proceedings due to Chiullan ' s plac ing this one

policy with IW S F , because s he was not aware of such act and the

facts c onstituting a violation of the insurance c ode.

Additionally, d e la Paz pointed out that section 626.910 provides

a person " aiding an unauthorized insurer " shall pay a civil

penalty of not more than $1000 .00 for each non - willful violation.

De la Paz emphasized that she personally " did absolu tely nothing

to violate the c ode, let alone commit a willful violation of the

code. " For this reason, she c ould not sign the stipulation

admitting that she committed a willfu l violation.

14. De la Paz ' s letter was forwarded to Jackson who asked

d e la Paz for documentation supporting de la Paz ' s position. De

la Paz corresponded with Jackson on June 29 and July 2, 2013. In

this correspondence, in addition to once again supply ing the

requested documentation, de la Paz reiterated her lack of

knowledge of IWSF as a UE and her lack of involvement in the

Guzman/Saez transaction.

15. On July 2, 2013, Azcue contacted de la Paz to invite

her to come to DFS ' office and review the inve stigative file.

This meeting was not mandatory. According to de la Paz ' s

credible testimony, she asked to bring her attorney and was told

she could not. De la Paz declined to attend the meeting .

16. On August 26, 2013, after negotiations with d e la Paz

were unsuccessful, DFS filed a one - count Administrative Complaint

against de la Paz , alleging that on May 6, 2009, Guzman and Saez

purchased a policy for watercraft insurance from MDLPA. De la

Paz was charged with a violation of section 626.611, " Knowing ly

aiding, assisting, procuring, advising, or abetting any person in

violation of or to violate a provis i on of the insurance code or

any order or rule of the department, commission, or office. "

17. De la Paz was also charged with a violation of

section 62 6.734 , which provides that any general lines agent who

is an officer, director, or stockholder of an incorporated

general lines insurance agency shall remain personally and fully

liable and accountable for any wrongful acts, misconduct, or

violations of an y provis i on of the cod e committed by such

licensee by any person under his or her direct supervis i on and

control while acting on behalf of the corporation.

18. A final hearing on the Administrative Complaint was

held on December 4, 2013 , and January 7, 20 14. A Recommended

Order was entered by the undersigned on March 28, 2014, which

found that DFS failed to prove, by clear and convincing evidence,

that de la Paz knowingly aided, assisted, procured, advised , or

abetted two UEs when Ch i u llan sold what was p urported to be

watercraft insurance in the spring of 2009 to Saez and Guzman.

19. DFS admits that de la Paz is a " small business party "

and was a " prevailing party " for purposes of the Florida Equal

Access to Justice Act, section 57.111.

20. There is no dispute th at de la Paz ' s attorney ' s fees

for defending the underlying action in the amount of $29,700.00

and costs in the amount of $1,265.39 are reasonable. De la Paz's

additional cost for the final hearing Transcript in the amount of

$831.75 is also rea sonable.

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this

proceeding. §§ 57.111 & 120.57, Fla. Stat. (201 4 ).

22. Attorney ' s fees have been sought by d e la Paz in this

matter pur suant to section 57.111, the Equal Access to Justice

Act.

23. The legislative intent for enacting the Equal Access to

Justice Act is provided in section 57.111(2) as follows:

(2) The Legislature finds that certain

persons may be deterred from seeking r eview

of, or defending against, unreasonable

governmental action because of the expense of

civil actions and administrative proceedings.

Because of the greater resources of the

state, the standard for an award of

attorney ' s fees and costs against the stat e

should be different from the

standard for an award against a private

litigant. The purpose of this section is to

diminish the deterrent effect of seeking

review of, or defending against, governmental

action by providing in certain situations an

award o f attorney ' s fe es and costs against

the state.

24. In pertinent part, section 57.111(4)(a) provides the

following:

(4)(a) Unless otherwise provided by law, an

award of attorney ' s fees and costs shall be

made to a prevailing small business party in

any a djudicatory proceeding or administrative

proceeding pursuant to chapter 120 initiated

by a state agency, unless the actions of the

agency were substantially justified or

special circumstances exist which would make

the award unjust . (emphasis supplied).

25. Section 57.111(3)(c) defines a " prevailing small

business party " as follows:

(c) A small business party is a " prevailing

small business party " when:

1. A final judgment or order has been

entered in favor of the small business party

and such judg ment or order has not been

reversed on appeal or the time for seeking

judicial review of the judgment or order has

expired;

2. A settlement has been obtained by the

small business party which is favorable to

the small business party on the majority of

issues which such party raised during the

course of the proceeding; or

3. The state agency has sought a voluntary

dismissal of its complaint.

Substantial Justification

26 . The term " substantially justified " is defined in

section 57.111(3)(e), as fo llows:

(e) A proceeding is " substantially

justified " if it had a reasonable basis in

law and fact at the time it was initiated by

a state agency.

27 . In proceedings to establish entitlement to an award of

attorney ' s fees and costs pursuant to section 5 7.111, the initial

burden of proof is on the party requesting the award to

establish , by a preponderance of the evidence , that it prevailed

in the underlying action and that it was a small business party

at the time the action was initiated. Once the part y requesting

the award has met this burden, the burden shifts to the agency to

establish that its actions in instituting the proceeding were

substantially justified or that special circumstances exist that

would make an award of attorney ' s fees and costs t o the party

unjust. Helmy v. Dep ' t of Bus. & Prof ' l Reg. , 707 So. 2d 366,

368 (Fla. 1st DCA 1998).

28 . Because there is no dispute that de la Paz is a

prevailing s mall business party, DFS bears the burden of

establishing that its actions in initiating t his proceeding were

substantially justified. " The ' substantially justified ' standard

falls somewhere between the no justiciable issue standard of

Section 57.105 . . . and an automatic award of fees to a

prevailing party. " Id.

29 . To be substantially ju stified, the government agency

must have a solid , though not necessarily correct , basis in fact

and law in its actions initiating the underlying case based upon

the information available to the agency at the time of initiation

of the agency action. Dep ' t of HRS v. S.G. , 613 So. 2d 1380

(Fla. 1st DCA 1993); AH CA v. MVP Health Inc. , 74 So. 3d 1141 ,

1143 - 44 (Fla. 1st DCA 2011).

3 0 . In analyzing whether DFS had a solid basis in law, it

is appropriate to examine the law cited as authority in the

Administrative Complaint.

3 1 . In this case, DFS charged de la Paz with a violation of

section 626.611 , which requires " knowingly " aiding and abetting a

person in violating an order of the department. Although DFS had

de la Paz ' s signature on the finance agreement, all other

information showed that the 2009 transaction with Guzman and Saez

was conducted by Chiullan, not de la Paz. Although D FS now

points to the fact that de la Paz reissued the check to ISWF in

2010 for the automatic renewal of the policy, de la Paz was not

charged with any violation for the 2010 transaction in the

Administrative C omplaint.

3 2 . More importan t ly , even though it is arguable that

de la Paz had some tangential knowledge of the transaction with

Guzman and Saez, DFS presented no evidence that de la Paz had

knowledge that IWSF and NAM were UEs, which is the critical

inquiry. DFS makes this assumption based upon the fact that it

undertook a campaign to educate agents about the danger of UEs,

including IWSF, but there was no evidence linking tha t campaign

to de la Paz or her agency. DFS had no evidence to refute that

no one at MDLPA, including de la Paz or Chiullan, had reason to

believe IWSF was a UE. Nor did DFS produce any evidence to

refute de la Paz ' s credible testimony that calling DFS ' o ffice or

checking its website , even as late as the date of the hearing ,

would not result in a determination that IWSF is a UE. An

assumption, standing alone, falls far short of " su bstantial "

justification.

3 3 . DFS also sought to impose a penalty against de la Paz

for the 2009 Guzman/Saez tra nsaction conducted by Chiullan based

upon section 626.734 , which holds a n agent liable for any

wrongful acts committed by any person under his or her direct

supervision and control while acting on behalf of the

corpora tion.

3 4 . As discussed in the Recommended Order in the underlying

case, in a proceeding to revoke a license, " the licensing body

cannot rely solely on wrongdoing or negligence committed by an

employee of the licensee; instead, the licensing body must prov e

that the licensee was at fault somehow for the employee ' s

conduct, due to the licensee ' s own negligence, intentional

wrongdoing, or lack of due diligence. " Bridlewood Grp . Home v.

Ag . for Pers . with Disab . , 136 So. 3d 652 , ( Fla. 2nd DCA 2013)

citing Ag . for Pers. with Disab . v. Help is on the Way, Inc. ,

Case No. 11 - 1620 (Fla. DOAH Feb. 3, 2012; Fla. APD Apr. 16,

2012); Ganter v. Dep ' t of Ins. , 620 So. 2d 202, 203 (Fla. 1 st DCA

1993).

3 5 . In Pic N ' Save Central Florida v. D epartment of

B usiness and P rofe ssional R egulation , Div ision of Alcoholic

Beverages and Tobacco , 601 So. 2d 245, 250 (Fla. 1st DCA 1992),

the court, when analyzing liability under the theory of

respondeat superior and revoking a party ' s right to conduct

business, held " that one ' s license to engage in an occupation is

not to be taken away except for misconduct personal to the

licensee. " Only when the employees act in a " persistent and

practiced manner " so as to justify being described as " flagrant, "

is " the factual inference that the viol ations were either

fostered, condoned, or negligently overlooked by the licensee "

justified. Id. at 253 - 254.

3 6 . As a matter of law, Chiullan ' s one transaction with

IWSF on behalf of MDLPA cannot be construed as " consistent or

practiced. " The selling of one policy by Chiullan to Guzman and

Saez for a premium of less than $1,200.00 is not " flagrant. " 1/

Special Circumstances

3 7 . DFS asserts that " special circumstances " exist in this

case which would make an award of fees and costs unjust. In

support of t his argument, DFS alleges that de la Paz " refused to

meet with Department investigators to discuss and resolve

allegations of misconduct prior to the Administrative Complaint

being filed. " DFS also claims the decision to file the

Administrative Complaint turned on the assessment of witness

credibility and that de la Paz was not credible.

38 . No evidence supports the contention that de la Paz

refused to meet with the Department. To the contrary, the

evidence demonstrated that the unannounced field investi gation

was conducted at MDLPA when de la Paz was away from the office on

a cruise. Despite her unavailability, and the fact that the

investigators did not explain why they were at MDLPA or what they

were investigating, de la Paz directed her staff to full y comply

and respond to DFS ' requests for files and documents. Azcue

confirmed that the DFS timely received everything that was

requested from MDLPA.

39. De la Paz wrote to D FS three times explaining why she

was not guilty of any violation and why she co uld not admit to a

willful violation. When Azcue invited de la Paz to come in to

review the file, de la Paz indicated she would like to do so and

would need to bring an attorney or friend to help her interpret

between English and Spanish. De la Paz was t old she could not

bring her attorney , and she therefor e declined to meet with DFS .

At no time was de la Paz informed that the meeting was mandatory

or would be interpreted as a refusal to cooperate with the

investigation. It is specious, at best, to now claim this is a

" special circumstance " to deny attorney ' s fees and costs.

4 0 . DFS ' argument, that the decision to file the

Administrative Complaint was based on a credibility assessment,

and therefore constitutes special circumstances, also stretches

the bounds of credulity. The cases cited by DFS for this

proposition are misplaced. More importantly, t here simply was no

weighing of credibility undertaken by DFS .

4 1 . At the time of the filing of the Administrative

Complaint, the sum total of the investig ation was a review of

documents (which overwhelmingly demonstrate Chiullan, not

de la Paz, conducted the transaction at issue) and the likely

testimony of DFS ' investigator. Although the DFS received

correspondence from de la Paz, she w as never interviewe d as part

of the investigation. In fact, none of the pertinent witnesses - Î

Chiullan, Mondaca, Sa e z , or Guzman -- were ever interviewed. 2/

4 2 . DFS ' two defenses to an award of fees and costs ,

" substantial justification " and " special circumstances, " are not

s upported by law or facts.

43. The attorney's fees and costs were reasonable and

necessary to defend against de la Paz. Likewise, the additional

cost of the Transcript incurred by de la Paz was reasonable and

necessary to the determination of entitlement to such fees and

costs. N ordal v. Dep't of Prof'l Reg., Div. of Real Estate , Case

No. 89 - 3441F (DOAH Feb. 9, 1990).

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Marta R. de la Paz's Motion for

Attorney ' s Fees an d Costs is GRANTED. The Department of

Financial Services, Division of Insurance Agents and Agency

Services, shall pay to Marta R. de la Paz , within 30 days , the

sum of $3 1 , 797 . 14 for attorney ' s fees and costs incurred in DOAH

Case No. 13 - 3820PL.

DONE AND OR DERED this 18th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

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 18th day of December, 2014 .

ENDNOTE S

1/ DFS cites to de la Paz ' s obtaining watercraft insurance for

her son and boyfriend through IWSF as proof that she was

negligent in checking whether IWSF was a UE. However, the

information regarding these additional transactions between MDLPA

and IWSF was first revealed at the final hearing, only after the

filing of the Adm inistrative Complaint.

2/ At the final hearing on the issue of fees and costs, DFS

solicited the testimony of an Allstate employee, Shannon Bowes,

who stated that Allstate would never have given a list of other

insurance carriers that were not fully vett ed and which included

UEs such as IWSF. Although Bowes was very credible, her

testimony w a s not relevant. Bowes ' testimony failed to take

into account that the assertion, that IWSF was on a list provided

by Allstate, came from Chiullan, not de la Paz. Bowes stated

that she was not aware of IWSF until asked to testify in the

de la Paz fees and costs proceeding. Therefore, this information

was no t available to D FS prior to the filing of the

Administrative Complaint and could not have been included in a

" credibility " determination.

COPIES FURNISHED:

David J. Busch, Esquire

Department of Financial Services

Division of Legal Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

(eServed)

N. Fraser Schuh, Esquire

704 Southea st Third Avenue Extension

Hallandale, Florida 33009

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO JUDICIA L REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by fi ling the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.