STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ODIS THOMAS COOPER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-469

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in the above styled case on May 20, 1981, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Odis Thomas Cooper, Pro Se.

1535 South West 44 Terrace

Fort Lauderdale, Florida 33317

For Respondent: Steven R. Scott, Esquire

Department of Insurance The Capitol

Tallahassee, Florida 32301

The issue for determination in this case is whether the Petitioner's application for qualification as an ordinary combination life and disability insurance agent was properly, denied by the Department based on the Petitioner's failing grade on the January 6, 1981, licensing examination.

At the hearing, Respondent's Exhibits 1-3, depositions of Lillian B. Davis, Nelly Sosa and Cindy Benefield, respectively, and Respondent's Exhibit 4, the exam submitted by the Petitioner for grading, were offered and admitted into evidence. Mrs. Donna Rae Endler testified for Respondent. Petitioner testified on his own behalf.

A proposed recommended order was submitted by the Respondent. To the extent that those proposed findings of fact are not reflected in this Order they are rejected as being not supported by competent and substantial evidence or were considered immaterial to the results reached.

FINDINGS OF FACT

1. On January 6, 1981, the Petitioner was administered an examination for licensure as an ordinary-combination life including disability agent at the local service office of the Department of Insurance, 201 West Broward Boulevard, Room 207, Fort Lauderdale, Florida. (T. 30)

   
   

2. This was the Petitioner's third and final attempt to pass this examination; failure to pass would result in the denial of a temporary license as a debit agent and termination of Petitioner's present employment. (T. 18,38,39)

   
   

3. The exam was formulated and typed in Tallahassee and mailed to the Broward Service Office a few days prior to January 6, 1981. For security reasons, the exam was kept in a locked bin and sealed in an envelope. Upon arriving for the examination the Petitioner unsealed his test envelope in the presence of witnesses and took the exam into the test room. (T. 32,33)

   
   

4. When Petitioner left the test center, Mrs. Donna Rae Endler, the exam proctor, quickly checked the test questions to see that the questions were either answered or initialed and mailed the Petitioner's exam to Tallahassee for grading (T. 37)

   
   

5. In Tallahassee, the Petitioners exam was unsealed and graded by Nelly Sosa, a licensing specialist, on January 9, 1981. (Respondent's Exhibit 2) In attempting to grade the exam, Ms. Sosa noticed that only the first page of Petitioner's exam corresponded to the appropriate answer key. Ms. Sosa took the exam to her supervisor, Lillian Davis, who ascertained that aside from the first page, the exam was of unknown origin. (Respondent's Exhibit 1)

   
   

6. The exam turned in by the Petitioner consists of the first page from the January 6, 1981, licensing exam followed by ten pages from a different fifty question exam. This is ascertained by the following:

   
   

   1. The first page contains questions one and two and the second page begins with question one and ends on page ten with question fifty.

   2. The second page begins with numeral 2-1 at the bottom and the following

      pages have Florida - 2 in the upper right hand corner. The first page is designated simply by page l.

   3. The typeset and print on the first page is different from the following ten

      pages.

   4. The top of the second page of the exam has been cut and torn so that the top

      of the exam page is missing. (Respondent's Exhibit 4)

      
      

7. The questions appended to page one of Petitioner's exam are of a type asked by the Department and apparently formulated from a manual agents use to prepare for the exam. (T. 44, Respondent's Exhibit l)

   
   

8. Petitioner's assertion that the exam turned in by him was the same exam unsealed at the beginning of the exam is not credible. Given the security

   surrounding the exam and an analysis of the exam itself, the only logical explanation for the existence of the different questions is that they were substituted by the Petitioner as part of a rather obvious attempt to cheat to avoid loss of his employment.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

10. Petitioner was refused licensure on the grounds that he violated Section 626.611(3), Florida Statutes, and/or Section 626.611(7), Florida Statutes.

    
    

11. Section 626.611(3) and (7), Florida Statutes, requires refusal of licensure for:

    
    

    (3) [f]ailure to pass to the Department's satisfaction any examination required under this code. [and/or]

    (7) [f]or demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

    
    

12. The facts establish that the examination turned in by the Petitioner has never been used by the Department and was of unknown origin. The Department had neither the motive nor opportunity to substitute pages on Petitioner's licensing exam. The Petitioner certainly had ample motive this being his third and final attempt to pass. Thus, the Department properly refused to grade the Petitioner's exam once it was ascertained that a substituted exam was appended to the first page of the actual exam.

    
    

13. Moreover, since the Petitioner's actions in this case were clearly willful. The Department also demonstrated by a preponderance of competent and substantial evidence that licensure was properly denied pursuant to Section 626.611(7), Florida Statutes.

RECOMMENDATION

It is, therefore RECOMMENDED:

That the Department enter a final order denying the application for licensure to the Petitioner, Odis Thomas Cooper, as an ordinary-combination life including disability agent.

DONE and ORDERED this 13th day of August, 1981, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1981.

COPIES FURNISHED:

Steven R. Scott, Esquire Department of Insurance The Capitol

Tallahassee, Florida 32301

Odis Thomas Cooper 1535 S 44 Terrace

Fort Lauderdale, Florida 33317

Docket for Case No: 81-000469

Orders for Case No: 81-000469