STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTHENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5712

)

STEPHEN TODD DAGGETT, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 7, 1990, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nancy S. Isenberg, Esquire

Department of Insurance Division of Legal Services Room 412, Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Thomas W. Stahl, Esquire

Newell & Stahl, P. A. 817 North Gadsden Street

Tallahassee, Florida 32303

and

Wayne O. Smith, Esquire 5420 Central Avenue

St. Petersburg, Florida 33707 ISSUE

The issue for determination in these proceedings is whether the Respondent knowingly and willfully made certain misrepresentations to the DePeughs with the intent of causing the DePeughs to cancel their existing insurance coverages and purchase insurance policies from the Respondent.

PRELIMINARY STATEMENT

The Petitioner filed a one-count Administrative Complaint against the Respondent on September 21, 1989. The Complaint alleged that the Respondent had made certain misrepresentations to Forrest and Viola DePeugh for the purpose of inducing the DePeughs to cancel their existing insurance coverage and purchase an insurance policy from the Respondent. The Complaint alleged that the Respondent's misrepresentations to the DePeughs constituted a violation of one or more of the following provisions of the Florida Insurance Code: Sections 624.11(1), 626.611(4), 626.611(5), 626.611(7), 626.611(8), 626.611(9),

626.611(13), 626.621(2), 626.621(5), 626.621(6), 626.9521, 626.9541(1) (a)4.,

626.9541(1)(a)6., 626.9541(1) (c), 626.9541(1)(k)1., and 626.9541(1)(l), Florida

Statutes (1989).

At the final hearing, the Department presented the testimony of the DePeughs, and the Respondent testified in his own behalf. Both parties introduces exhibits in evidence, as well, and the Department ordered the preparation of a transcript of the final hearing, which was filed on March 27, 1990. Explicit rulings on the proposed findings of fact in the proposed recommended orders filed by the parties may be found in the attached Appendix to Recommended Order, Case No. 89-5712.

FINDINGS OF FACT

1. The Respondent is, and at all times applicable to these proceedings was, a licensed health and accident insurance agent licensed by National States Insurance Company.

   
   

2. In order to become a licensed Florida insurance agent, the Respondent was required to become familiar with the provisions of the Florida Insurance Code and pass an exam given by the Department of Insurance. The Respondent is familiar with the provisions of the Florida Insurance Code applicable to insurance agents.

   
   

3. On or about May 4, 1989, Respondent visited the home of Forrest and Viola DePeugh in Englewood, Florida. The DePeughs had sent in a "lead card" to the Respondent's company requesting information on insurance.

   
   

4. While visiting the DePeughs, the Respondent asked to see their existing insurance policies. The DePeughs showed the Respondent three insurance policies, all of which were Medicare Supplement policies. The DePeughs had policies from American Sun, AARP, and Old Southern Insurance Company. 5.

The Respondent attempted to explain to the DePeughs how their existing coverages would work and how the policy offered by the Respondent's company, National States, was different from the insurance policies the DePeughs had already purchased. Mr. DePeugh had a difficult time understanding the difference in the coverages offered by the various policies. The Respondent tried to explain that the Old Southern policy would pay 100 percent of the Medicare allowable charges, up to the actual amount of the-physician's charges, while the National States policy would pay 200 percent of the Medicare allowable charges, up to the actual amount of the physician charges.

1. While the Respondent was explaining the differences between the policies, Mr. DePeugh was told by the Respondent that the insurance agent who had sold the DePeughs the Old Southern policy, Richard Stetsky, would never have sold them something that did not pay the actual bill.

   
   

2. Stetsky had told them that he had been with Old Southern for seven or eight years. When Mrs DePeugh told the Respondent that Stetsky had been with Old Southern for seven or eight years, the Respondent told the DePeughs that the Respondent personally knew that Stetsky had not worked for Old Southern for that length of time because Stetsky had worked with the Respondent at the same agency, Diversified Health Services, only three or four years ago. The Respondent told Mr. DePeugh that if.Stetsky had told them he had worked for Old Southern for seven or eight years, Stetsky was not telling them the truth.

3. Although there was conflicting testimony, the evidence did not prove that the Respondent told the DePeughs that Stetsky was a "thief" or a "crook".

   
   

4. During his sales call with the DePeughs, the Respondent showed the DePeughs a copy of the BESTS rating guide, an industry reference which rates the financial performance of insurance companies. The Respondent informed the DePeughs that Old Southern had a BESTS' rating of "C", while the company the Respondent represented, National States, had a BESTS' rating of "A". The Respondent attempted to explain to the DePeughs the difference between an "A" and a "C" rating. The Respondent also told the DePeughs that they could check the ratings of insurance companies at the public library. Mr. DePeugh called the Department of Insurance after the Respondent left, and the Department stated that Old Southern had experienced financial difficulties in the past, but that the company was now in good standing.

   
   

5. The evidence did not prove that the Respondent told the DePeughs that Old Southern was "bankrupt" or that Old Southern was a "no good" company.

   
   

6. The Respondent did not take an insurance application from the DePeughs. The Respondent did not accept any money from the DePeughs. The Respondent did not tell the DePeughs to cancel any of their existing insurance coverages.

   
   

7. The Respondent's sales approach bothered Mrs. DePeugh, and she thought that the Respondent "should have sat down and talked sensibly." The purpose of Mrs. DePeugh's complaint against the Respondent was to make him talk to elderly people in a "more polite fashion" and to "change his attitude to the way he talks to the elderly."

   
   

8. If the Respondent had been a "gentleman", Mr. DePeugh believes that he and his wife possibly would have "bought some insurance off of him." Like his wife, the main basis of Mr. DePeugh's complaint against the Respondent was "his attitude".

   
   

9. There was no evidence that the Respondent failed to comply with a proper order or rule of the Department of Insurance.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Petitioner has the burden of proof in these proceedings to prove the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The standard of clear and convincing evidence to be used in administrative licensing cases was outlined by the First District Court of Appeal in Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989):

    
    

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of tie trier of fact the firm belief of conviction,

    without hesitancy, as to be the truth of the allegations sought to be established. 550 So.2d at 116, n.5

    
    

11. The Administrative Complaint alleged that Respondent violated one or more of the following sections of the Insurance Code: Sections 624.11(1), 626.611(4), 626.611(5), 626.611(7), 626.611(8), 626.611(9), 626.611(13), 626.621(2), 626.621(5), 626.621(6), 626.9521, 626.9541(1)(a)4., 626.9541(1)(a)6., 626.9541(1)(c), 626.9541(1)(k)1., and 626.9541(1)(l), Florida Statutes (1989). These provisions provide as follows.

    
    

    1. Compliance required.--

       1. No person shall transact insurance in this state . . . without complying with the applicable provisions of this code [Chapters 624 through 632,634, 637, 638, 639, 641, 642, and 651, Fla. Stat.]

    626.611 Grounds for compulsory refusal, suspension, or revocation of agent's solicitor's, or adjuster's license or . permit.--The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster

    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 of the following applicable grounds exist:

    1. If the license or permit is wilfully used, or to be used, to circumvent any of the requirements or prohibitions of this code.

    2. 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.

    1. Demonstrated lack of fitness or trustworthiness to engage in the business 01' insurance.

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

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

    (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.

    626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representative's supervising or managing general agent's or claims

    investigator's permit.--The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster . . . 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:

    (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 permit.

    1. Violation of the provision against twisting, as defined in s. 626.9541(1) (1).

    2. In the conduct of business under the license or permit, engaging in unfair methods of competition or in unfair and 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.

    626.9521 Unfair methods of competition and unfair or deceptive acts or practices prohibited.--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 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.

    626.9541 Unfair methods of competition and unfair or deceptive acts or practices defined.--

    (l) 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:

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

    4. Is misleading, or is a misrepresentation, as to the financial condition of any person or as to the legal reserve system upon which any life insurer operates.

    1. Is a misrepresentation for the purpose of inducing or tending to induce, the lapse, forfeiture, exchange, conversion, or surrender of any insurance policy.

       (c) Defamation. --Knowingly making, publishing, disseminating, or circulating

       any oral or written statement . which is false or maliciously critical or, or derogatory to, any person and which is calculated to injure such person.

       1. Misrepresenting in insurance applications.

          1. Knowingly making false or fraudulent statements or representations on, or relative to, an application for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual.

       2. Twisting.--Knowingly making any misleading representations or incomplete or fraudulent comparisons . . . of or with respect to any insurance policies or insurers for the purpose of inducing, or tending to induce, any person to lapse, forfeit, surrender, terminate, . . . or convert any insurance policy or to take

       out a policy of insurance in another insurer.

       
       

12. The evidence did not prove that the Respondent willfully used his insurance license to circumvent any of the requirements or prohibitions of the Insurance Code. The Petitioner has failed to prove by clear and convincing evidence that the Respondent violated the provisions of s. 626.611(4), Florida Statutes.

    
    

13. The evidence did not prove that the Respondent willfully misrepresented any insurance policy or annuity contract, either in person or by advertising. The evidence shows that the Respondent attempted to explain to the DePeughs the differences between the Old Southern policy and the policy issued by National States. The evidence did not prove that the Respondent misrepresented either of the insurance policies. The Petitioner has failed to prove by clear and convincing evidence that the Respondent violated the provisions of s. 626.611(5), Florida Statutes.

    
    

14. The evidence did not prove that the Respondent lacks fitness or trustworthiness to engage in the business of insurance. The Respondent did not accept any money from the DePeughs or tell them to cancel any of their existing policies. The Petitioner has failed to prove by clear and convincing evidence that the Respondent violated the provisions of s. 626.611(7), Florida Statutes.

    
    

15. There was no evidence to show that the Respondent demonstrated the lack of reasonably adequate knowledge to engage in the transactions authorized by his license. The unrebutted evidence showed that the Respondent was familiar with those sections of the Insurance Code necessary to pass the Petitioner's exam for licensing insurance agents. The Respondent was aware of the different coverages provided under the DePeugh's existing insurance policies and the

    policies sold by the Respondent. The Petitioner did not prove by clear and convincing evidence that the Respondent violated the provisions of s.

    626.611(8), Florida Statutes.

    
    

16. The evidence did not prove that the Respondent engaged in fraudulent or dishonest practices during his limited business dealings with the DePeughs. He did not obtain any money from the DePeughs; he did not tell the DePeughs to cancel any of their existing insurance policies. The DePeughs did not cancel any of their existing insurance policies as a result of the Respondent's sales pitch. The DePeughs' main complaint against the Respondent was that they did not like his "attitude." The Petitioner did not prove by clear and convincing evidence that the Respondent violated the provisions of s. 626.611(9), Florida Statutes.

    
    

17. There was no evidence to show that Respondent has ever willfully failed to comply with an order or rule of the Department of Insurance or that the Respondent willfully violated any provisions of the Insurance Code. The Petitioner did not prove by clear and convincing evidence that the Respondent violated the provisions of s. 626.611(13), Florida Statutes.

    
    

18. The Petitioner did not prove by clear and convincing evidence that the Respondent engaged in any of the unfair methods of competition or unfair trade practices set forth in Sections 626.621, 626.9521 and 621.9541, above. It was not proven that the Respondent knowingly misrepresented any material facts during his brief sales presentation to the DePeughs. The Respondent informed the DePeughs that Old Southern had experienced financial difficulty in the past, a fact which was confirmed by the Department of Insurance when Mr. DePeugh called to inquire as to the financial stability of Old Southern. The Respondent told the DePeughs to check on the condition of Old Southern at the public library. The Respondent did not tell the DePeughs, or even suggest to them, that they should cancel their Old Southern policy. The DePeughs suffered no harm as a result of the Respondent's sales visit. The real basis of the DePeughs' complaint against the Respondent was that they did not like the Respondent's "attitude"; if he had been a "gentleman" and a little more polite to them, they would not have filed a complaint against him.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Insurance, enter a final order dismissing the Administrative Complaint against the Respondent, Stephen Todd Daggett, in this case.

RECOMMENDED this 25th day of April, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5712

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-6. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven.

2. Accepted but unnecessary.

3. Rejected as not proven.

4. Accepted but unnecessary.

5. Accepted but subordinate to facts not proven and contrary to those found, and also unnecessary.

Respondent's Proposed Findings of Fact.

1.-14. Accepted and incorporated to the extent not subordinate or unnecessary.

15. Irrelevant and unnecessary.

COPIES FURNISHED:

Nancy S. Isenberg, Esquire Department of Insurance Division of Legal Services Room 412, Larson Building Tallahassee, FL 32399-0300

Thomas W. Stahl, Esquire Newell & Stahl, P. A.

817 North Gadsden Street Tallahassee, FL 32303

Wayne O. Smith, Esquire Wayne O. Smith, P. A.

5420 Central Avenue

St. Petersburg, FL 33707

Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Don Dowdell, Esquire General Counsel

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

=================================================================

AGENCY FINAL ORDER

=================================================================

OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

IN THE MATTER OF: CASE NO: 89-L-763RCB DOAH CASE NO. 89-5712

STEPHEN TODD DAGGETT

/

FINAL ORDER

This cause came on for hearing before the undersigned Treasurer and Insurance Commissioner of the State of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action. On September 21, 1989, an Administrative Complaint was filed charging the Respondent with various violations of the Insurance Code. The Respondent timely filed a request for a formal proceeding pursuant to section 120.57(1), Florida Statutes.

Pursuant to notice, the matter was heard before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings, on March 7, 1990.After consideration of the evidence, argument and testimony presented at hearing, and subsequent written submissions by the parties, the hearing officer issued his Recommended Order. (Attached as Exhibit A). The hearing officer recommended that the Administrative Complaint be dismissed. Timely exceptions to the Recommended Order were filed by Petitioner.

RULINGS ON PETITIONER'S EXCEPTIONS PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT

1. Petitioner takes exception to the Hearing Officer's finding that Respondent was licensed to represent National States Insurance Company (hereinafter referred to as "National States") as a Health and Accident

   Insurance Agent. Respondent is licensed in this state pursuant to 626.112, Florida Statutes as a Health Insurance Agent. There is not a license designation in the Insurance Code as an Accident Insurance Agent. Accordingly, Petitioner's Exception to Finding of Fact #1 is accepted.

   
   

2. Petitioner takes exception to the Hearing Officer's finding of Fact Paragraph Number 4. After reviewing the evidence in the record, the hearing officer determined that the DePeughs showed the Respondent insurance policies from Old Southern Life Insurance Company (hereinafter referred to as "Old Southern Life"), American Sun Life Insurance Company, and AARP. Petitioner's exception to this finding is predicated on the argument that a review of the evidence in the transcript more readily supports the view that the DePeughs only showed the Respondent one insurance policy from Old Southern Life. However, as there is competent substantial evidence to support the hearing officer's Finding of Fact on this question, Petitioner's Exception Number 2 must be rejected.

   
   

3. Petitioner's Exception Number 3 excepts to Paragraph Number 6 of the Hearing Officer's Findings of Fact. The record contains conflicting testimony regarding the statements made to the DePeughs during the Respondent's sales presentation. In this instance, the conflicting testimony concerns whether the Respondent told the DePeughs that Richard Stetsky, the agent for Old Southern Life, would not have sold them a policy that paid the entire bill. As there is competent and substantial evidence in the record to support the Hearing Officer's Findings of Fact, Petitioner's Exception Number 3 must be rejected.

   
   

4. Petitioner's Exception Number 4 excepts to Paragraph Number 7 of the Hearing Officer's Findings of Fact. Respondent testified that he had personal knowledge that Richard Stetsky had not been employed with Old Southern Life for the past seven or eight years. (Tr. 65). As there is competent substantial evidence in the record to support the Hearing Officer's Findings of Fact, Petitioner's Exception Number 4 must be rejected.

   
   

5. Petitioner's Exception Number 5 excepts to paragraph Number 8 of the Hearing Officer's Findings of Fact. The Hearing Officer determined based on the conflicting evidence in the record, that the Respondent did not make disparaging statements toward Richard Stetsky, the agent representing Old Southern Life. Accordingly, as there is competent substantial evidence to support the Hearing Officer's Finding of Fact on this question, exception number 5 to the Hearing Officer's Finding of Fact must be rejected.

   
   

6. Petitioner's Exception Number 6 excepts to paragraph Number 10 of the Hearing Officer's Findings of Fact. The Hearing Officer found based on the conflicting evidence in the record that the Respondent did not make false or disparaging statements regarding the financial condition of Old Southern Life, but rather was trying to draw an objective comparison of the ratings of National States to that of Old Southern Life. Although the DePeughs were frightened by what the Respondent told them, the pivotal issue is whether the Respondent's statements regarding the financial condition of Old Southern Life were false, reckless, or otherwise calculated to cause the DePeughs to cancel their existing insurance policy. The Hearing Officer upon reviewing the inconsistent evidence determined that the Respondent did not make disparaging statements about Old Southern Life and as there is competent substantial evidence to support this finding, Petitioner's Exception Number 6 to the Hearing Officer's Finding of Fact must be rejected.

   
   

7. Petitioner's Exception Number 7 excepts to Paragraphs Number 12 and 13 of the Hearing Officer's Findings of Fact. As there is competent substantial

evidence to support the Hearing Officer's finding Petitioner's exception Number

7 to Paragraphs Number 12 and 13 of the Hearing Officer's Findings of Fact must be rejected.

RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW

1. Petitioner's Exception Number 1 excepts to Paragraph Number 3 of the Hearing Officer's Conclusions of Law wherein the Hearing Officer concluded as a matter of law that Respondent did not willfully use his license to circumvent a provision of the Florida Insurance Code in violation of Section 626.611(4), Florida Statutes. The Hearing Officer determined that the evidence failed to prove the allegations as set forth in the Department's Administrative Complaint. Since the Hearing Officer's Conclusion of Law is predicated upon the evidence in the record, Petitioner's Exception Number I to Paragraph 3 of the Hearing Officer's Conclusions of Law must be rejected.

   
   

2. Petitioner's Exception Number 2 excepts to Paragraph Number 4 of the Hearing Officer's Conclusions of Law wherein the Hearing Officer concluded as a matter of law that Respondent did not violate the provisions of 626.611(5), Florida Statutes. Although it is true that Respondent might have violated the provisions of 626.611(5), Florida Statutes even though the DePeughs did not as a result of the sales presentation cancel their existing insurance policy, the question is whether the Respondent during his sales presentation made false or reckless - statements to the DePeughs which were tantamount to a "willful misrepresentation of any insurance policy or ... willful deception with regard to any insurance policy." The Hearing Officer concluded that Respondent did not violate the above referenced provision of the Florida Insurance Code in that the Respondent did not maker disparaging or false statements about the financial viability of Old Southern Life or about Mr. Richard Stetsky, the insurance agent who sold the Old Southern Life policy to the DePeughs. Accordingly, since the Hearing Officer's Conclusion of Law is predicated upon his finding of fact that Respondent did not make false or disparaging statements with regard to the Old Southern Life policy or its agent, the Department is required to accept this Conclusion of Law and Petitioner's Exception to Conclusion of Law Number 2 must be rejected.

   
   

3. Petitioner's Exception Number 3 excepts to Paragraph 5 of the Hearing Officer's Conclusions of Law wherein the Hearing Officer concluded as a matter of law that Respondent did not violate the provision of 626.611(7), Florida Statutes. Petitioner's exception to this Conclusion of Law is based on the allegation that Respondent's statements to the DePeughs during his sales presentation were calculated to cause the DePeughs to cancel their existing policy and to purchase insurance from the Respondent. This conduct, if true, would demonstrate a lack of fitness or trustworthiness to engage in the business of insurance. However, the Hearing Officer, based upon a review of the record, found that Respondent's statements to the DePeughs were not false, reckless, or calculated to cause the DePeughs to cancel their insurance. He also based his conclusion on the finding that Respondent did not tell the DePeughs to cancel their existing policy. Based upon that finding, he concluded that Respondent did not violate the above-referenced provision of the Florida Insurance Code. Accordingly, since the Hearing Officer's Conclusion of Law is predicated upon his Finding of Fact that Respondent did not make false and or misleading statements calculated to result in the DePeugh's canceling their existing insurance policy from Old Southern Life, Petitioner's Exception to Conclusion of Law Number 5 must be rejected.

4. Petitioner's Exception Number 4 excepts to Paragraph 7 of the Hearing Officer's Conclusion of Law wherein the Hearing Officer concluded as a matter of law that Respondent did not violate the provisions of 626.611(9). Based upon the Hearing Officer's Finding of Fact that Respondent did not engage in fraudulent or dishonest practices during his sales presentation to the DePeughs, Petitioner's Exception Number 4 to Paragraph 7 of the Hearing Officer's Conclusion of Law must be rejected.

   
   

5. Petitioner's Exception Number 5 excepts to Paragraph 8 of the Hearing Officer's Conclusions of Law. The Hearing Officer concluded as a matter of law that Respondent did not violate the provisions of 626.611(13), Florida Statutes, engaged in dishonest or deceptive practices in violation of 626.611(9), Florida Statutes or use his license to circumvent any of the requirements of the Insurance Code in violation of 626.611(4), Florida Statutes. These conclusions were based upon findings in the record that Respondent did not make false or reckless statements to the DePeughs. Accordingly, Petitioner's Exception Number

   5 to Paragraph 8 of the Hearing officer's Conclusions of Law must be rejected.

   
   

6. Petitioner's Exception Number 6 excepts to the Hearing Officer's Conclusion of Law Number 9 wherein the Hearing Officer concluded as a matter of- law that Respondent did not violate the provision of 626.621(5), (6), 626.9521 or 626.9541(1)(a)4, (1)(a)6, (1)(c), (1)(k)I, and (I)(1), Florida Statutes. The pivotal issue in this case is whether the Respondent made statements which disparaged the financial condition of Old Southern Life, or made statements which disparaged Richard Stetsky, the agent who sold the DePeughs the Old Southern Life insurance policy. Since the Hearing Officer found that the Respondent did not make false or misleading statements as alleged in the Department's Administrative Complaint, Petitioner's Exception Number 6 of the Hearing Officer's Conclusion of Law must be rejected. While it is true that the reason the DePeughs decided to file a complaint with the Petitioner does not directly determine whether there is a violation of the Florida Insurance Code, the Hearing Officer determined that a violation of the code did not occur. It is therefore unnecessary to make an affirmative ruling regarding the last sentence to the Hearing Officer's Conclusion of Law Paragraph 9.

Upon careful consideration of the record, the submissions of the parties and being otherwise fully advised in the premises, it is

ORDERED:

1. The Findings of Fact of the Hearing Officer are hereby adopted in full as the Department's Findings of Fact except as modified in Paragraph number 1.

   
   

2. The Findings of Fact of the Hearing Officer are hereby adopted in full as the Department's Conclusions of Law.

   
   

3. The Hearing Officer's Recommendation that the Administrative Complaint be dismissed with prejudice is approved and accepted as being the appropriate disposition of this case.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as Agency Clerk, 412 Larson Building, Tallahassee, Florida 32399-0300 and a copy of the same and filing fee, with the appropriate District Court of Appeal within thirty (30) days of -rendition of this Order.

DONE and ORDERED this 21st day of June, 1990.

TOM GALLAGHER

Treasurer and Insurance Commissioner

COPIES FURNISHED:

J. Lawrence Johnston, Hearing Examiner Division of Administrative Hearings

The DeSoto Building, 1230 Apalachee Parkway Tallahassee, Florida 32399-1550

Thomas W. Stahl, Esquire Newell & Stahl, P.A.

817 North Gadsden Street Tallahassee, Florida 32303

Wayne O. Smith, Esquire 5420 Central Avenue

St. Petersburg, Florida 33707

Nancy S. Isenberg, Esquire Department of Insurance Division of Legal Services Room 412 Larson Building

Tallahassee, Florida 32399-0300

Docket for Case No: 89-005712

Orders for Case No: 89-005712