STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3794

)

RALPH STEVEN CARMONA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on October 27, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: James A. Bossart, Esquire

Department of Insurance

412 Larson Building Tallahassee, Florida 32399-0300

For Respondent: David C. Arnold, Esquire

9130 South Dadeland Boulevard, #1617

Miami, Florida 33156 STATEMENT OF THE ISSUES

The issues presented are whether Respondent committed the offenses set forth in the administrative complaint filed in this case and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 6, 1989, Petitioner filed an administrative complaint containing one count which charged that Respondent committed multiple violations of the Florida Insurance Code and sought to impose disciplinary sanctions against Respondent. The gravamen of the charges was that Respondent solicited and sold a medical malpractice insurance policy on behalf of an insurance company that was not authorized to do business in Florida and that Respondent was not licensed to represent.

On June 28, 1989, Respondent partially admitted and denied the allegations of the administrative complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1987). On July 5, 1989, Petitioner referred the matter to the Division of Administrative Hearings.

At the hearing, Petitioner called three witnesses and introduced 15 exhibits which were admitted into evidence. Petitioner's exhibit 4 was received in part as uncorroborated hearsay. Respondent testified on his own behalf and introduced two exhibits which were received into evidence.

A transcript of the proceedings was filed on December 4, 1989. By rule, proposed findings of fact were due on December 14, 1989. Both parties timely submitted proposed findings of fact. A ruling on each finding of fact has been made and is reflected in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Ralph Steven Carmona, was licensed as an insurance agent by Petitioner, Department of Insurance. On October 25, 1989, Respondent was eligible for licensure and licensed as a Life and Health Insurance Agent. From April 7, 1967 to April l, 1989, Respondent was licensed as a General Lines - Property, Casualty, Surety and Miscellaneous Lines Insurance Agent and is currently eligible for such licensure. From January 21, 1985 through April 1, 1987, Respondent was licensed as a Surplus Lines - Property, Casualty, Surety and Miscellaneous Lines Insurance Agent and remained eligible for such licensure until March 31, 1989.

   
   

2. Respondent also served as an officer and director of the Greater Miami Insurance Agency, Inc., an incorporated general lines and life and health insurance agency in Miami. At the time of the incident at issue, Respondent, also, was associated with and conducted insurance transactions in the name of Greater Miami Insurance Agency.

   
   

3. In August of 1987, Dr. Lucien Armand, a medical general surgeon, approached Respondent about the possibility of obtaining medical malpractice insurance. Dr. Armand was in the process of establishing his practice with Lawnwood Regional Medical Center in Fort Pierce, Florida. As a condition for employment at Lawnwood Regional Medical Center, Dr. Armand was required to obtain medical malpractice insurance from an insurer authorized to do the business of insurance in Florida.

   
   

4. At Dr. Armand's request, Respondent made several inquiries about the possibility of insuring Dr. Armand. Since Dr. Armand had suffered at least four medical malpractice insurance claims from the period of 1982 through 1986, obtaining coverage for him was difficult. However, Respondent gathered several quotations from various medical malpractice insurance companies including the Florida Medical Malpractice Joint Underwriting Association (FMMJUA) which quoted a premium of between $75,000 to $80,000, annually. Dr. Armand rejected each of the plans offered by Respondent as too expensive and requested Respondent to continue his search for a less expensive coverage.

   
   

5. Sometime prior to the time he was approached by Dr. Armand, Respondent had been contacted by a company with an address in the Bahamas, International Med Trust Fund (IMTF). Respondent called IMTF and requested additional information concerning their offerings and financial status. In response to his request, Respondent received a letter from a G.L.J. Wilson written on the letterhead of Paramount Insurance Broker & Agents Limited. Respondent represented that Mr. Wilson was the broker and agent for IMTF. The letter was dated February 2, 1987 and, as quoted from the letter, made the following apparent representations pertinent to IMTF:

   * * *

   International Ned Trust Fund has been doing business in the State of Florida for over three years.

   The Fund has retained the services of Melsar Ltd, Inc., a Florida Corporation that are Financial and General Consultants to the Insurance Industry whose job it is to advise us on strategy and regulations of the Insurance Agency. We have not been authorized to write business in the state of Florida simply because up until now authorization was not required.

   We are however, advised that the office of The Insurance commissioner does not object to our writing business in Florida so long as we state our intent to defend all claims and actions within the state. This we have done.

   We do have the services of a Florida Lawyer whose job it is to co-ordinate the legal defence of the fund, should action from a claim commence.

   * * *

   
   

   Respondent also received a letter from Gulf Union Bank (Bahamas) Ltd. dated February 4, 1987 which stated that the "dollar value" of IMTF was in the moderate seven figure bracket.

   
   

6. To verify the allegations in Mr. Wilson's letter, Respondent called Petitioner and spoke with someone whom Respondent believed to be a representative of Petitioner. Respondent understood the alleged spokesperson to say that the Petitioner had no jurisdiction over IMTF and from that assumed that IMTF was not required to be licensed by Petitioner before doing business in Florida.

   
   

7. Feeling assured that IMTF need not be licensed from his understanding of the alleged representation by Petitioner, that IMTF had adequate financial resources from the representation made by Gulf Union Bank and that IMTF had previously transacted business in Florida from Mr. Wilson's letter, Respondent ended his inquiries about the status of IMTF to conduct insurance business in Florida. Respondent prepared to offer policies for IMTF.

   
   

8. Respondent solicited for IMTF under his General Lines - Property, Casualty, Surety and Miscellaneous Lines agent's license. Although medical malpractice insurance can be written under the license, existent law requires that the insurer, itself, must be authorized by Petitioner and an agent must hold an appointment with the insurer which is registered with Petitioner. As of August 20, 1987, IMTF was also not an authorized insurer. Further, Respondent was not authorized to solicit insurance in Florida on behalf of International Med Trust Fund.

   
   

9. When Dr. Armand rejected coverage by the FMMJUA, Respondent gave Dr. Armand an application for IMTF and quoted him a premium of $24,500, a substantial decrease from the $75,000 to $80,000 premium quoted by the FMMJUA. Respondent also shared with Dr. Armand the information he had received

   concerning IMTF. Dr. Armand paid the deposit of $7,500 by tendering $5,000 in cash and financing the remainder with Respondent. Dr. Armand was then given a one month binder from Greater Miami Insurance Agency for coverage by IMTF dated August 20, 1989. Later, Respondent received the Certificate of Insurance from IMTF dated November 3, 1987 for the indemnity period of August 20, 1987 through August 20, 1988. Respondent copied the certificate and forwarded it to Dr.

   Armand.

   
   

10. Dr. Armand's policy was the first and only policy which Respondent has written for IMTF. However, Respondent's reliance on the representations he obtained about the status of IMTF and his failure to have adequate knowledge about the insurers for which he was authorized to solicit under his general lines license clearly demonstrate a lack of reasonable knowledge about the transactions for which he was licensed.

    
    

11. Between October 28, 1987 and March 7, 1988, Dr. Armand paid four premium installments totaling $6,674.00 to Greater Miami Insurance Agency in addition to the deposit. The funds were deposited, in trust, in the corporate account of Greater Miami Insurance Agency. In the regular course of business, the monies, minus Respondent's commission and approximately $1,500, were forwarded to IMTF.

    
    

12. Sometime in early 1988, the hospital questioned the validity of the IMTF policy and contacted Petitioner. Petitioner responded with a letter dated April 6, 1988 stating that IMTF was not approved or authorized to write any kind of coverage in Florida.

    
    

13. Dr. Armand was informed by the hospital about Petitioner's letter and its contents and that he must obtain substitute insurance to remain on staff there. Dr. Armand then informed Respondent about the letter from Petitioner. Respondent offered to return Dr. Armand's money, but Dr. Armand, having confidence that Petitioner's letter was in error, requested Respondent to clarify the matter with the hospital.

    
    

14. During the months of April and May, 1988, Dr. Armand repeatedly tried to contact Respondent concerning the status of Respondent's efforts to clarify the matter. Failing to reach him by telephone, Dr. Armand wrote Respondent on June 11, 1988 and requested a refund of the amount of premium paid to IMTF. Then, on June 15, 1988, Dr. Armand again wrote to Respondent requesting assurance that IMTF would indemnify Dr. Armand for claims arising from acts occurring during the period of time which Dr. Armand thought he was covered by IMTF. Dr. Armand made this request although he had requested that the premium be refunded to him. The proof was unclear as to whether the funds were, or were not, refunded to Dr. Armand and no competent, substantial evidence was presented to show whether IMTF would, or would not, honor a claim against Dr. Armand.

    
    

15. Respondent attempted to satisfy Dr. Armand's requests. He telephoned IMTF and requested it to submit its Bahamian license certificate to the hospital. He, also, sought substitute coverage for Dr. Armand by again contacting the FMMJUA and secured a one month binder with FMMJUA. The proof is unclear as to what funds Respondent used as the deposit for the binder. However, the premium quoted for the coverage by the FMMJUA, in this instance, was $125,000 which Dr. Armand rejected. Although alternate insurance was

    available to Dr. Armand, he terminated his staff privileges at Lawnwood Regional Medical Center. The reasons for his departure from Lawnwood are unclear. Dr.

    Armand currently practices in Broward County, Florida.

16. Respondent still holds some of the remaining premium funds in trust, and a balance on the premium is owing IMTF. The amount of these funds, in addition to the amount of commission paid to Respondent, were not proven by competent, substantial evidence.

    
    

17. The instant claim represents the first and only complaint filed with Petitioner against Respondent since Respondent was first licensed by Petitioner in 1967.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

19. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

20. The administrative complaint alleges that Respondent violated the following provisions of the Florida Insurance Code:

    
    

    1. Section 626.112(2), Florida Statutes (1987);

    2. Section 626.311(4), Florida Statutes (1987);

    3. Section 626.561(1), Florida Statutes (1987);

       d. Section 626.611(5), (7), (8); (9), (10) and

       (13), Florida Statutes (1987), as amended;

       1. Section 626.621(2), and (6), Florida Statutes (1987), as amended;

       2. Section 626.901(1), Florida Statutes (1987), as amended;

       3. Section 626.9521, Florida Statutes (1987);

       h. Section 626.9541(1)(a)l, (1)(a)5, (1)(b)

       (1)(e)1, (1)(1), and (1)(0)1, Florida Statutes (1987), as amended.

       
       

21. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 626.311(4) when he held himself out as an agent for International Med Trust Fund (IMTF). Section 626.311(4) provides as follows:

    
    

    (4) No agent licensee shall transact or attempt to transact under his license any kind of insurance or class thereof for which he does not have currently in force of record with the department an agency appointment by an authorized insurer.

    
    

    By its terms, Section 626.311(4) prohibits an agent licensee from transacting any kind of insurance for which he does not have an agency appointment by an authorized insurer registered with Petitioner. Here, IMTF is not an authorized insurer, and Petitioner does not have on record an appointment for the representation of IMTF by Respondent.

22. Petitioner also established by clear and convincing evidence that Respondent violated the provisions of Section 626.901(1) when he secured the insurance for Dr. Armand with IMTF. Section 626.901(1) provides as follows:

    
    

    1. No person shall, from offices or by personnel or facilities located in this state or in any other state, directly or indirectly act as agent for, or otherwise represent or aid on behalf of another, any insurer not then authorized to transact such insurance in this state, or in any other state, in:

       1. The solicitation, negotiation, procurement, or effectuation of insurance or annuity contracts, or renewals thereof;

       2. The dissemination of information as to coverage or rates;

       3. The forwarding of applications;

       4. The delivery of policies or contracts;

       5. The inspection of risks;

       6. The fixing of rates;

       7. The investigation or adjustment of claims of losses; or

       8. The collection or forwarding of premiums:

          or in any other manner represent or assist such an insurer in the transaction of insurance with respect to subjects of insurance resident, located, or to be performed in this state, if the property or risk is located in any other state, then, subject to the provision os subsection (2), insurance may only be written with or placed in an insurer authorized to do such business in such state or in an insurer with which a licensed insurance broker of such state may lawfully place such insurance.

          
          

          By its terms, Section 626.901(1) prohibits a person from assisting any insurer not authorized to transact insurance in Florida. 1/ Here, IMTF was not authorized to perform the business of insurance Florida. Further, Respondent assisted IMTF when he solicited, negotiated, procured and effectuate insurance for IMTF; and forwarded an application, delivered a policy, collected premiums for IMTF. Thus, Respondent violated the provisions of Section 626.901(1).

          
          

23. The provisions of Section 626.621(2) are invoked by Petitioner's proof that Respondent violated the provisions of Section 626.311(4) and Section 626.901(1). Section 626.621 provides, in pertinent part, as follows:

    
    

    The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative,

    supervising or managing general agent, or claims investigator, and it may suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee 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:

    * * *

    1. 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 permit.

    
    

    By its terms, Section 626.621(2) authorizes Petitioner to discipline a licensee if the licensee, while acting under his license violates any provision of law applicable to the business of insurance. Here, the proof is clear that Respondent is a licensee and that Sections 626.311(4) and 626.901(1), which he violated, are provisions of law which govern the business of insurance in Florida Thus, Section 626.621 is applicable to Respondent.

    
    

24. Section 626.611(8) requires discipline against a licensee who has demonstrated a lack of reasonably adequate knowledge and technical competence to engage in the activities for which he is licensed. Section 626.611 provides, in pertinent part, as follows:

    
    

    The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:

    * * *

    (8) Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or permit.

    
    

    To be found in violation of this provision, the proof must be clear that Respondent committed both elements of the offense: a lack of reasonably adequate knowledge and a lack of reasonably adequate technical competence. Here, the proof is clear as that Respondent demonstrated a lack of reasonably adequate knowledge when he relied on a somewhat vague representations as to the legal status and activity of a company with which he was to do business.

    However, the proof failed to demonstrate any lack of technical competence on the part of Respondent. Accordingly, Petitioner failed to show that Respondent violated the provisions of Section 626.611(8).

25. Petitioner did not establish by clear and convincing evidence that Respondent violated the provisions of the remaining provisions of law with which he has been charged and which read as follows:

    
    

    1. Section 626.561(1) provides as follows:

       1. All premiums, return premiums, or other funds belonging to insurers or others received by an agent, solicitor, or adjuster in transactions under his license shall be trust funds so received by the licensee in a fiduciary capacity; and the licensee in the applicable regular course of business shall account for and pay the same to the insurer, insured, or other person entitled thereto.

          
          

    2. Section 626.611 provides, in pertinent part, as follows: The department shall deny, suspend,

       revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:

       * * *

       (5) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising.

       * * *

       (7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

       * * *

       1. Fraudulent or dishonest practices in the conduct of business under the license or permit.

       2. Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received In conduct of business under the license.

       * * *

       (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.

    3. Section 626.621 provides, in pertinent part, as follows: The department may, in its discretion,

       deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it may suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee 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 permit, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of this chapter, or having otherwise shown

       himself to be a source of injury or loss to the public or detrimental to the public interest.

       
       

    4. Section 626.9521 provides as follows:

       No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to

       S. 626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance. Any person who violates any provision of this part shall be subject to the penalties provided in s. 627.381.

       
       

    5. The provisions of Section 626.9541 define unfair methods of competition and unfair or deceptive acts or practices and those with which Respondent is charged with having committed read as follows:

       1. UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS. - The following are defined as unfair methods of competition and unfair or deceptive acts or practices:

          1. Misrepresentations and false advertising of insurance policies. - Knowingly making, issuing, circulating, or causing to be made, issued, or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison which:

             1. Misrepresents the benefits, advantages, conditions, or terms of any insurance policy.

             * * *

             5. Uses any name or title of any insurance policy or class of insurance policies misrepresenting the true nature thereof.

             * * *

          2. False information and advertising generally.

    Knowingly making, publishing, disseminating, circulating or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public:

    1. In a newspaper, magazine, or other publication,

    2. In the form of a notice, circular, pamphlet, letter, or poster,

    3. Over any radio or television station, or

    4. In any other way,

    an advertisement, announcement, or statement containing any assertion, representation, or statement with respect to the business of insurance, which is untrue, deceptive or misleading.

    * * *

    (e) False statement and entries. -

    1. Knowingly:

    1. Filing with any supervisory or other public official,

    2. Making, publishing, disseminating, circulating,

    3. Delivering to any person,

    4. Placing before the public,

    5. Causing, directly or indirectly, to be made, published, disseminated,

       circulated, delivered to any person, or

       placed before the public, any false material statement.

       * * *

       1. Twisting. - Knowingly making any misleading representation or incomplete or fraudulent comparisons of any insurance policies or insurers for the purpose of inducing, or tending to induce, any person to lapse, forfeit, surrender, terminate, retain, pledge, assign, borrow on or convert any insurance policy or to take out a policy of insurance in another insurer.

    * * *

    (o) Illegal dealings in premiums; excess or reduced charges for insurance.

    1. Knowingly collecting any sum as a premium or charge for insurance, which is not then provided, or is not in due course to be provided, subject to acceptance of the risk by the insurer, by an insurance policy issued by an insurer as permitted by this code.

    
    

26. Respondent's violation of Section 626.621(2), authorizes the discretionary suspension, revocation or refusal to renew or continue any license issued under Chapter 626. However, the strict provisions of Section 626.621 need not be invoked pursuant to Sections 626.681, Florida Statutes (1987) and 626.691, Florida Statutes (1987). Section 626.681 and Section 626.691 authorize the imposition of an administrative fine and probation in lieu of the discipline listed in Section 626.621, respectively, and under certain conditions which apply to the case at issue. In determining the recommendation for an appropriate penalty in this case, consideration has been given to the fact that the instant offense is the first violation filed against Respondent.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Insurance enter a final order which

finds that Respondent committed the multiple violations of the Florida Insurance Code as set forth in the Conclusions of Law portion of this Recommended Order, imposes a an administrative fine of five hundred dollars ($500) on Respondent and places Respondent on probation for a period of three (3) months.

DONE AND ENTERED this 10th day of January, 1990, in Tallahassee, Leon County, Florida.

JANE C. HAYMAN

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1990.

ENDNOTES

1/ Section 626.901(2), Florida Statutes (1987) provides certain exemptions from the provisions of Section 626.901. Here, Respondent did not raise and failed to prove the applicability of any of the exemptions outlined in Section 626.901(2).

APPENDIX TO THE RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted by Petitioner:

1. The proposed findings of fact in paragraph l are adopted in material part by paragraph l of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph l of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph l of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 2 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 3 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 3 of the Recommended Order.

7. The proposed findings of fact in paragraph 7 are adopted in material part in paragraphs 3 and 14.

8. The proposed findings of fact in paragraph 8 are rejected as immaterial.

9. The proposed findings of fact in paragraph 9 are adopted in material part by paragraphs 3 and 4 of the Recommended Order.

10. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 9 of the Recommended Order.

11. The proposed findings of fact in paragraph 11 are rejected as immaterial.

12. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 9 of the Recommended Order.

13. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 9 of the Recommended Order.

14. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 8 of the Recommended Order.

15. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 8 of the Recommended Order.

16. The proposed findings of fact in paragraph 16 are adopted in material part by paragraphs 7 of the Recommended Order and rejected in part as not supported by competent, substantial evidence.

17. The proposed findings of fact in paragraph 17 are adopted in material part by paragraph 8 of the Recommended Order.

18. The proposed findings of fact in paragraph 18 are rejected as not supported by competent, substantial evidence.

19. The proposed findings of fact in paragraph 19 are adopted in material part by paragraph 13 of the Recommended Order.

20. The proposed findings of fact in paragraph 20 are adopted in material part by paragraph 9 of the Recommended Order.

21. The proposed findings of fact in paragraph 21 are rejected as immaterial.

22. The proposed findings of fact in paragraph 22 are adopted in material part by paragraph 12 of the Recommended Order.

23. The proposed findings of fact in paragraph 23 are adopted in material part by paragraph 13 of the Recommended Order.

24. The proposed findings of fact in paragraph 24 are adopted in material part by paragraph 13 of the Recommended Order and rejected in part as not supported by competent, substantial evidence.

25. The proposed findings of fact in paragraph 25 are adopted in material part by paragraph 13 of the Recommended Order.

26. The proposed findings of fact in paragraph 26 are adopted in material part in paragraphs 13 - 15 of the Recommended Order.

27. The proposed findings of fact in paragraph 27 are rejected immaterial.

28. The proposed findings of fact in paragraph 28 are rejected immaterial and not supported by competent, substantial evidence.

29. The proposed findings of fact in paragraph 29 is rejected as immaterial and not supported by competent, substantial evidence.

30. The proposed findings of fact in paragraph 30 are adopted in material part by paragraph 13 and 14 of the Recommended Order.

31. The proposed findings of fact in paragraph 31 are rejected as immaterial.

32. The proposed findings of fact in paragraph 32 are adopted in material part is paragraph 14 and rejected in part as not supported by competent, substantial evidence.

33. The proposed findings of fact in paragraph 33 are rejected as not supported by competent, substantial evidence.

The following rulings are made on the proposed findings of fact submitted by Respondent:

part in paragraph 3 and 4 of the Recommended Order and rejected in part as not supported by competent, Substantial evidence.

1. The proposed findings of fact in paragraph 5 are adopted in material part in paragraph 4 of the Recommended Order.

2. The proposed findings of fact in paragraph 6 are adopted in material part in paragraph 5 and rejected in part as not supported by competent, substantial evidence.

3. The proposed findings of fact in paragraph 7 are adopted in material part in paragraph 6 of the Recommended Order.

4. The proposed findings of fact in paragraph 8 are adopted in material part in paragraph 5 and rejected in part as not Supported by competent, Substantial evidence.

5. The proposed findings of fact in paragraph 9 are adopted in material part in Paragraph 7 of the Recommended Order.

6. The proposed findings of fact in Paragraph 10 are adopted in material part in Paragraph 9 of the Recommended Order.

7. The Proposed findings of fact in Paragraph 11 are rejected as not Supported by competent, substantial evidence.

8. The proposed findings of fact in paragraph 12 are adopted in material part in Paragraph 13 of the Recommended Order.

9. The Proposed findings of fact in Paragraph 12 are adopted in material part in paragraph 10 of the Recommended Order.

10. The proposed findings of fact in paragraph 14 are adopted in material part in Paragraph 8 of the Recommended Order.

11. The Proposed findings of fact in paragraph 15 are rejected as not Supported by competent, substantial evidence.

12. The Proposed findings of fact in Paragraph 16 are adopted in material part in paragraph 14 of the Recommended Order and rejected in part as not Supported by competent, substantial evidence..

13. The proposed findings of fact in paragraph 17 are adopted in material part in Paragraph 14 of the Recommended Order.

14. The Proposed finding of fact in Paragraph 18 are rejected as a conclusion of law.

COPIES FURNISHED:

James A. Bossart, Esquire Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

David C. Arnold, Esquire Two Datran Center

9130 South Dadeland Blvd. Suite 1617

Miami, Florida 33156

Don Dowdell General Counsel The Capitol Plaza Level

Tallahassee, Florida 32399-0300

Hon. Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Docket for Case No: 89-003794

Orders for Case No: 89-003794