STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE ) AND TREASURER, )
)
Petitioner, )
)
vs. ) CASE NO. 89-6161
)
JOHNNY L. JOHNSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 19, 1990, in Miami, Florida.
APPEARANCES
For Petitioner: James A. Bossart, Esquire
Department of Insurance and Treasurer Division of Legal Services
412 Larson Building Tallahassee, FL 32399-0300
For Respondent: Johnny L. Johnson, pro se
17120 Northwest 27th Avenue Opa Locka, FL 33056
STATEMENT OF THE ISSUE
The issue presented is whether Respondent, a licensed insurance agent, is guilty of violating the statutes regulating the conduct of an insurance agent, and if so, what disciplinary action should be taken against him, if any.
PRELIMINARY STATEMENT
Petitioner Department of Insurance and Treasurer issued an Administrative Complaint against Respondent Johnny L. Johnson alleging that he had violated numerous provisions of the statutes regulating the conduct of an insurance agent in the State of Florida, and Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. This matter was transferred to the Division of Administrative Hearings for the conduct of that formal proceeding. On February 7, 1990, Petitioner filed an Amended Administrative Complaint as the charging document in this cause. During the final hearing, Petitioner
voluntarily dismissed Counts I and III of that Amended Administrative Complaint.
Petitioner presented the testimony of Patricia Moss, Karen Pappalardo, James Morgan Tillie, Sina Tillie, William H. Douglas, and Richard E. Turner. Additionally, Petitioner's Exhibits numbered 1-26 were admitted in evidence.
The Respondent testified on his own behalf. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.
Although both parties requested leave to file proposed findings of fact in the form of proposed recommended orders, only Petitioner did so. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Respondent has been eligible for licensure and licensed as a life and health insurance agent and as a dental health care contract salesman.
For many years, Respondent had also been licensed to solicit general lines -- property, casualty, surety, and miscellaneous lines -- insurance in this state. Respondent was unaware that this license expired on March 24,
1987. At all times material hereto, Respondent was, however, eligible for licensure as a general lines agent.
At all times material hereto, Respondent was one of the officers of Johnson's Model City Insurance Agency #1, Inc., a Florida corporation. That corporation was involuntarily dissolved on November 4, 1988.
On December 30, 1986, Respondent telephoned Petitioner to discuss the propriety of an insurance agent charging a consulting fee. Following that telephonic conversation, an attorney for Petitioner directed correspondence to Respondent confirming that telephone conversation, advising that a consulting fee could legally be charged under certain circumstances. Those circumstances included the use of a separate consulting contract between the agent and the insured so that the insured would fully understand that he or she was entering into a separate contract and paying a separate consideration in advance of the performance of consulting services. Additionally, the services rendered must be other than those normally provided by an insurance agent. Further, if a separate consulting contract were effectuated, an agent could set up a separate consulting corporation to enter into such contracts.
Hartford Insurance Company sells automobile insurance in the State of Florida by use of a toll-free telephone number. People who know the telephone number can call Hartford directly, obtain a quote for automobile insurance, and purchase a policy directly from Hartford. Hartford has no insurance agents in the State of Florida and pays no commissions to insurance agents in Florida for the obtaining of automobile insurance customers. A person can obtain a quote in writing from the Hartford in advance of purchasing a policy. Sometimes, the quotation card and the policy are issued and mailed simultaneously by Hartford to its new insureds.
On September 20, 1987, Patricia Moss telephoned J. M. C. Insurance Consultants pursuant to an ad in the telephone yellow pages. She inquired about obtaining automobile insurance to replace her current policy which would expire on September 22, 1987. She spoke with an employee named Betty who advised her that she could obtain replacement insurance at a cost of $927.
Since the cost quoted to her was substantially lower than the prices she had been quoted by the other agencies she had consulted, Moss went to the offices of J. M. C. on September 21, 1987. Betty presented Moss with a number of documents to sign. She signed a Power of Attorney appointing Johnson's Model City Insurance, Inc., doing business as JMC Insurance Consultants as her attorney-in-fact to obtain insurance for her, specifically ratifying and confirming actions taken on her behalf by J. L. Johnson- consultant. She also executed an Agreement with Consultant specifying the services that JMC Insurance Consultants would perform on her behalf. She signed a further statement which provided that: "I understand that JMC Insurance is acting as Consultants for my insurance placement and is entitled to any and all consultation fees." She also signed a document written in boldfaced type which states:
IMPORTANT NOTICE
THIS LETTER IS TO INFORM YOU THAT JMC INSURANCE CONSULTANTS ARE NOT AGENTS NOR DO WE REPRESENT HARTFORD INSURANCE COMPANY IN ANY WAY WHATSOEVER.
WE REPRESENT "YOU" THE CLIENT AND WE ACT IN YOUR BEHALF WITH THE RIGHT THAT YOU GIVE US THROUGH A POWER OF ATTORNEY.
WE ENDEAVOR TO PLACE YOUR AUTO INSURANCE FOR YOU ON YOUR BEHALF. WE ARE YOUR CONSULTANT. IF YOU HAVE A PROBLEM PLEASE CALL US WE ARE HERE TO HELP AND ACT IN YOUR BEHALF. CALL US FIRST. LET US HANDLE IT.
CLIENT.
I HAVE READ AND I UNDERSTAND.
Moss gave JMC Consultants a check in the amount of $262.50 for which she was given a receipt which carried the specific notation that the money she had paid was for an insurance consultant's fee. She was also given a small card entitled Insurance Identification Card on which Betty filled in information showing that she would be insured by Hartford effective on the following day and specifically describing the coverage provided, the automobile insured, and the name and address of Moss.
Within a week she received directly from the Hartford an insurance policy for the benefits which she sought. The policy itself reflected that the premium for the policy was $632 and that she would be receiving a bill from Hartford for that amount.
She telephoned Betty, demanding a refund of her $262.50, which demand was refused. Betty explained to her that the amount was for the consultant's fee for obtaining the low- cost coverage for Moss.
Hartford's direct marketing program does allow people to purchase insurance on someone else's behalf utilizing a Power of Attorney. Although Hartford's records do not reflect a Power of Attorney from Moss to J. M.
C. Consultants or Respondent, Hartford's records regarding their policyholder Moss are not accurate. For example, they erroneously reflect that they quoted a rate to Moss on September 15, a week before they received any contact on her behalf.
Although Moss testified that Betty told her the $262.50 was the down payment on her insurance premium, her testimony is not credible in view of the numerous documents that she signed stating that she fully understood that Respondent was not an agent for Hartford, that Respondent would be acting on her behalf pursuant to the Power of Attorney and Consultant's Agreement which she had signed, and the other documents reflecting that the $262.50 was a consultant's fee which she was paying to Respondent to act on her behalf. Her testimony that she did not understand is refuted by the documents she signed saying that she did. There is no allegation that Moss, a retired registered nurse, was unable to read. Rather, it is concluded that Moss voluntarily chose to pay the Hartford premium plus Respondent's consulting fee since the total price for the two charges was still substantially less than she could have obtained insurance for from other sources.
Allstate Insurance Company is an insurer which sells insurance policies through their agents in the State of Florida. It also has a division which participates in Florida's Joint Underwriting Association (hereinafter "FJUA"), a program through which high-risk drivers who cannot obtain insurance in the regular voluntary insurance market can obtain automobile insurance. Prior to the time that his general lines agent license expired, Respondent participated in that program and was assigned to write insurance for Allstate for policyholders participating in the program. The Producers Contract entered into between Respondent and the FJUA, which assigned him to Allstate Insurance Company, provided that it would automatically terminate if an agent's general lines license expired.
On July 22, 1988, James Tillie came to the office of J. M. C. to procure automobile insurance for the van that he used in his business. After meeting with Respondent, Tillie gave Respondent a check in the amount of $204 as a down payment on an automobile insurance policy. The check was endorsed and deposited into the business bank account of J. M. C.
Respondent gave James Tillie an automobile insurance binder which reflected that his insurance policy was to be issued through Allstate Insurance Company.
Under the terms of Respondent's contract with the FJUA, Respondent was required to submit James Tillie's application and premium to Allstate within 24 hours. The FJUA application acts as a binder. Once the application is completed and the premium is paid to the agent, the insured has automatic coverage for 30 days during which time the carrier, Allstate in this case, can
act on the application. There is no evidence as to when Respondent forwarded James Tillie's application to Allstate; however, Allstate has no record of ever receiving the application. Respondent did tell James Tillie that within a couple of months he would receive from Allstate his policy and instructions for payment of the balance of his premium.
After a month or two had elapsed, James Tillie became concerned since he had not yet received his insurance policy. He contacted Respondent who assured him that he did have insurance coverage.
Shortly thereafter, James Tillie received in the mail from Respondent a card entitled Insurance Identification Card. On that card information had been filled in showing a policy number, the effective date, the insurance company as Allstate Insurance Company, a description of the insured vehicle, and the name and address of James Tillie. This is not an official Allstate
identification card, and no one purported it to be such. An official Allstate Insurance card is issued by Allstate as part of the policy issued by it.
On September 23, 1988, Sina Tillie, James' mother, visited J. M. C. for the purpose of purchasing automobile insurance for her new automobile. Sina Tillie is an elderly person who had never before owned an automobile or possessed a driver's license. She wished to purchase insurance on a brand- new automobile.
Sina Tillie gave Respondent $1,828 in cash as full payment of the policy's annual premium. Respondent gave her an insurance binder which reflected that her insurance was placed with Allstate.
Allstate has no record of receiving Sina Tillie's application and premium from Respondent.
Subsequently, Sina Tillie became concerned when she had not yet received her insurance policy. She asked her daughter to contact Respondent. Respondent advised her daughter not to worry. He then mailed to Sina Tillie an Insurance Identification Card similar to the one which he had provided to James Tillie reflecting James' coverage. He also telephoned Sina Tillie to assure her that if anything happened, all she would need to do would be to show the card saying that she was covered and to contact him.
Since neither he nor his mother had received a policy from Allstate, James Tillie called Allstate. He did not know that there were, in effect, two Allstates. The Allstate office which he contacted was a regular Allstate office which markets insurance to customers who call or come in, and not an office affiliated with the FJUA program. The person with whom he spoke told him that neither he nor his mother were insured by Allstate and that the policy numbers reflected on the Insurance Identification Cards given by Respondent to James and his mother were not Allstate policy numbers, but rather were binder numbers.
James Tillie then contacted Respondent who consistently maintained that both James and Sina were insured. Respondent contacted Allstate regarding James' and Sina's policies.
James Tillie came to the office of J. M. C. and met with Respondent. He advised Respondent that he and his mother had obtained insurance elsewhere and requested refunds of the premiums that he and his mother had paid. Respondent told Tillie that he could not refund the premiums since both James and his mother were insured in exchange for those premiums.
Respondent eventually told James Tillie that he would refund the premiums if the Tillies would sign releases. James Tillie maintained that he would sign releases only after he had received the refund of the premiums. The meeting ended in stalemate.
James Tillie contacted Petitioner, and Petitioner contacted Respondent. Respondent maintained that he would refund the premiums in exchange for a release. Petitioner forwarded a copy of Respondent's letter to James Tillie.
Respondent eventually made arrangements with James and his mother to refund the premiums in monthly payments since he did not have the money to refund the premiums in full. By the time of the final hearing in this cause, Respondent had only refunded the total amount of $600 to the Tillies.
At the time that Respondent's general lines agent license with Integrity Insurance Company was cancelled on March 24, 1987, he believed that he was being re-licensed by Fortune Insurance Company. However, he never received a license for or from Fortune and never checked to ascertain why.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Count II of the Amended Administrative Complaint relates to the Moss transaction and alleges that Respondent has violated the following statutory provisions:
Section 624.11(1) .
No person shall transact insurance in this state, or relative to a subject of insurance resident, located, or to be performed in this state, without complying with the applicable provisions of this code. Section 626.041
* * *
With respect to any insurances, no person shall, unless licensed as an agent:
Solicit insurance or procure applications therefor;
In this state receive or receipt for any money on account of or for any insurer, or receive or receipt for money from other persons to be transmitted to any insurer for a policy, contract, or certificate of insurance or any renewal thereof, although such policy, certificate, or contract is not signed by him as agent or representative of the insurer;
Directly or indirectly represent himself to be an agent of any insurer or as an agent, to collect or forward any insurance premium, or to solicit, negotiate, effect, procure, receive, deliver, or forward, directly or indirectly, any insurance contract or renewal thereof or any endorsement relating to an insurance contract, or attempt to effect the same, of property or insurable business activities or interests, located in this stat~;
In this state engage or hold himself out as engaging in the business of analyzing or abstracting insurance policies or of counseling or advising or giving opinions (other than as a licensed attorney at law) relative to insurance or insurance contracts, for fee, commission, or other compensation, other than as a salaried bo fide full-time employee so counseling and advising his employer relative to the
insurance interests of the employer and of the subsidiaries or business affiliates of the employer;
In anywise directly or indirectly make or cause to be made, or attempt to make or cause to be made, any contract of insurance for or on account of any insurer;
Section 626.112 .
* * *
(2) No agent or solicitor shall solicit or otherwise transact as agent or solicitor, or represent or hold himself out to be an agent or solicitor as to, any kind or kinds of insurance as to which he is not then licensed by the department.
Section 626.311 .
* * *
(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.
Section 626.561
(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. Section 626.611 .
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:
* * *
If the license or permit is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code.
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.
* * *
(9) Fraudulent or dishonest practices in the conduct of 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.
Section 626.621 .
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:
* * *
(3) Violation of any lawful order or rule of the department.
* * *
(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.
Section 626.734 .
Any general lines insurance agent who is an officer, director, stockholder, or employee of an incorporated general lines insurance agency shall remain personally and fully liable and accountable for any wrongful acts, misconduct, or violations of any provisions of this code committed by such licensee or by any person under his direct supervision and control while acting on behalf of the corporation.
Section 626.9541 .
(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:
* * *
(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.
As to the Moss transaction, Respondent has violated none of the statutory provisions set forth above. Although Respondent's general lines agent license had expired prior to the time that Patricia Moss came to J. M. C., the transaction itself did not require licensure as an insurance agent. Hartford was using a direct marketing program under which any person could have purchased insurance and under which any person with a Power of Attorney could have purchased insurance for someone else. Moss came to J. M. C., and Respondent's employee used superior information on Moss' behalf by calling Hartford's
toll-free number. Petitioner argues that Moss could have called Hartford herself. That is true, if Moss knew the phone number, which she apparently did not. Moss effectuated a substantial savings in the cost of obtaining insurance by purchasing her insurance from Hartford and by paying someone else a consultant's fee. She suffered no financial harm, and she was not entitled to a refund of her consultant's fee after the consulting services had been performed.
Further, Respondent appears to have complied with the instructions contained in the letter he obtained from Petitioner explaining how a consultant's fee could be properly charged. Although Petitioner argues that Moss did not "fully understand" the consulting fee arrangement, there is nothing more Respondent could have done to inform her about it since she signed numerous documents explaining the arrangement and signed statements that she did fully understand.
Count IV of the Amended Administrative Complaint relates to the James Tillie transaction and alleges that Respondent has violated the following statutory provisions set forth above: Sections 626.112(2), 626.311(4), 626.561(1), 626.611(4), 626.611(7), 626.611(9), 626.611(13), 626.621(6), 626.734, and 626.9541(1) (o)1., Florida Statutes. Additionally, Petitioner alleges that, as to James Tillie, Respondent violated the following additional statutory provisions:
Section 626.611 .
* * *
(8) Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or permit.
* * *
(10) 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.
Section 626.621 .
* * *
(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.
Petitioner has met its burden of proving that Respondent violated Sections 626.112(2), 626.311(4), 626.561(1), 626.621(6), 626.611(10), and 626.621(2), Florida Statutes, in that he sold automobile insurance to James Tillie at a time that he was not licensed to do so and in that he failed to return to James Tillie his insurance premium after Tillie told him he wanted his money back. Petitioner has failed to prove that Respondent violated any other statutory provisions as to James Tillie.
Count V alleges that Respondent, as to the Sina Tillie transaction, violated the following statutory provisions set forth above: Sections 626.112(2), 626.311(4), 626.561(1), 626.611(4), 626.611(7), 626.611(8), 626.611(9), 626.611(10), 626.611(13), 626.621(2), 626.621(6), 626.734, and 626.9541(1) (o)1., Florida Statutes.
Petitioner has met its burden of proving that Respondent violated Sections 626.112(2), 626.311(4), 626.561(1), 626.611(10), 626.621(2), and 626.621(6), Florida Statutes, in that he sold automobile insurance to Sina Tillie at a time that he was not licensed to do so and in that he failed to return to Sina Tillie her insurance premium after Tillie told him she wanted her money back. Petitioner has failed to prove that Respondent violated any other statutory provisions as to Sina Tillie.
In its Amended Administrative Complaint, the Department recommends that penalties be imposed against Respondent pursuant to the
provisions of Sections 626.611, 626.681, and 626.691, Florida Statutes. The imposition of an administrative fine as provided in Section 626.681 and the imposition of probation as provided in Section 626.691 are not available in this cause since Respondent has been found guilty of violating Section 626.611(10) which requires mandatory suspension or revocation of his licensure and eligibility for licensure. In its Proposed Recommended Order Petitioner recommends that Respondent's license and eligibility for licensure be revoked.
That recommendation is too harsh for the facts involved in this case.
During the final hearing, Petitioner dismissed two counts of the five count Amended Administrative Complaint filed against Respondent. Further, Petitioner failed to prove any of its allegations in regard to the count relating to Patricia Moss. The transactions with James and Sina Tillie involve the other two counts, and Petitioner has proven violation of only some of the statutory provisions alleged by it. Respondent did violate those statutory provisions requiring that he be licensed as a general lines agent in order to solicit or sell automobile insurance. Respondent had been licensed as a general lines agent for many years before his licensure expired. It was Respondent's obligation to ensure that his licensure remained in full force, but there is no evidence to suggest that Respondent's failure to keep his licensure current resulted from anything other than simple negligence. No evidence was presented, and no allegation was made, that Respondent's failure to keep an active license was a willful or deliberate act. Further, Respondent had been writing insurance on behalf of Allstate through the FJUA since February of 1981, and he continued to do so for James and Sina Tillie, not knowing that his contract with FJUA had automatically terminated due to his general lines agent license expiring. No fraudulent or willful intent has been proven to have existed on Respondent's part at the time that he issued binders to James and to Sina Tillie.
Regarding his failure to return premiums to James and Sina Tillie, the evidence shows that Respondent believed when he issued them binders that they were covered by insurance for 30 days. It is also clear that as time passed and policies were not issued to the Tillies by Allstate, Respondent contacted Allstate to ascertain what problems had arisen. Petitioner failed to prove that Respondent did not transmit the applications and premiums from the Tillies to Allstate within 24-hours, and Respondent failed to prove that Allstate lost those applications. What happened to them has simply not been proven. At some point, it did become clear that the Tillies were not issued policies by Allstate, were not insured by Allstate, and that Respondent could not bind insurance for them since his general lines agent's license had expired. At that point, he did become legally obligated to refund the entire premium amount to the Tillies. Although he has refunded a total of $600 to them, he still retains
$1,432 of their money. Respondent testified that he does not have the money to pay them back; yet, that does not affect his legal obligation and, in fact, was the basis for finding him guilty of wrongfully retaining premium monies due to the insureds. A suspension of Respondent's licensure and eligibility for licensure is the appropriate penalty for this unfortunate, but not fraudulent, set of circumstances surrounding Respondent's transactions with the Tillies.
Section 626.641 provides that a suspension shall not exceed two years. Although Respondent's general lines agent license has expired, he is still licensed currently as a life and health agent and as a dental health care service contract salesman and health insurance agent. During his period of suspension, he will not be available to service policies sold by him under his current licensure. A 60-day suspension appears to be an appropriate penalty to balance the need for disciplining Respondent for his statutory violations in his transactions with James and Sina Tillie with his responsibilities to clients who have previously purchased other kinds of insurance through him.
Based upon the foregoing Findings of Fact and Conclusions of Law, it
is
RECOMMENDED that a Final Order be entered finding Respondent guilty of
statutory violations as set forth in this Recommended Order and suspending Respondent's licensure and eligibility for licensure for a period of 60 days from the date of the Final Order entered in this cause.
DONE and ENTERED this 13th day of June, 1990, at Tallahassee, Florida.
LINDA M. RIGOT, 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 13th day of June, 1990.
APPENDIX TO RECOMMENDED ORDER
Petitioner's proposed findings of fact numbered 1-3, 7-9, 14-19, 21-26, and 28-32 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed findings of fact numbered 4-6, 10, 11, 13, 20, and 27 have been rejected as not being supported by the weight of the credible evidence in this cause.
Petitioner's proposed finding of fact number 12 has been rejected as being unnecessary for determination of the issues in this cause.
COPIES FURNISHED:
James A. Bossart, Esquire Department of Insurance and
Treasurer
Division of Legal Services
412 Larson Building
Tallahassee, Florida 32399-0300
Johnny L. Johnson
17120 Northwest 27th Avenue Opa Locka, Florida 33056
Honorable Tom Gallagher State Treasurer and
Insurance Commissioner The Capitol, Plaza Level
Tallahassee, Florida 32399-0300
Don Dowdell, General Counsel Department of Insurance and
Treasurer
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
=================================================================
AGENCY FINAL ORDER
=================================================================
OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE
IN THE MATTER OF: CASE NO. 89-L-518SMH DOAH CASE NO. 89-6161
JOHNNY L. JOHNSON
/
FINAL ORDER
THIS CAUSE came on before the undersigned Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, for consideration and final agency action. On September 7, 1989, an Administrative Complaint was filed andamended on February 7, 1990, charging Respondent, JOHNNY L.JOHNSON, 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 Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, on April 19, 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 Respondent's license as a Life and Health Insurance Agent, and as a Dental Health Care Contract Salesman be suspended for a period of 60 days. The Petitioner filed exceptions to the Recommended Order. No exceptions were filed by the Respondent.
RULING ON PETITIONER'S EXCEPTION TO CONCLUSIONS OF LAW
The Petitioner takes exception to several remarks made by the Hearing Officer in that conclusion of law set forth on page 18 of the Recommended Order, which is in regard to the transactions involving James and Sina Tillie.
The Petitioner correctly points out that Section 626.561(I), Florida Statutes, establishes that agents who receive premium funds from insureds must recognize their fiduciary responsibilities therein, and accordingly must exercise strict accountability for those funds. Accountability for those funds begins the moment the agent receives them and that duty does not end until those funds are remitted to the insurer or returned to the insured or that other person entitled thereto.
Irrespective of those remarks, the Hearing Officer does conclude on page 16 of the recommended order that the Petitioner has met its burden of proving that, as alleged in counts IV and V of the amended administrative complaint, the Respondent has violated Sections 626.561(1) and 626.611(10), Florida Statutes, as well as other enumerated sections of the Florida insurance code.
RULING ON PETITIONER'S EXCEPTION TO RECOMMENDED PENALTY
The Petitioner takes exception to the recommendation that the Respondent be suspended for sixty days under the reasoning that due to the severity of the violations, license revocation is appropriate.
Neither penalty recommended by either the Petitioner or the Hearing Officer incorporate provisions which require the Respondent return to James and Sina Tillie those premium funds which need be repaid. For those reasons, the Petitioner's exception is rejected and the Hearing Officer's recommendation is accepted. However, the Respondent must restore all premium funds lawfully belonging to James and Sina Tillie, as a condition for reinstatement of the Respondent's suspension. Section 626.641, Florida Statutes, authorizes the Department to impose this as a necessary condition for reinstatement.
Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises,
IT IS THEREFORE ORDERED:
The Findings of Fact of the hearing officer are adopted in full as the Department's Findings of Fact.
For the reasons discussed above, the Conclusions of Law of the hearing officer are adopted in part and rejected in part as the Department's Conclusions of Law.
That the hearing officer's recommendation that the Respondent's license as a Life and Health Insurance Agent and as a Dental Health Care Contract Salesman be suspended for a period of sixty days is accepted.
That the license of JOHNNY L. JOHNSON as a Life and Health Insurance Agent and as a Dental Health Care Contract Salesman is hereby suspended for a period of sixty (60) days. The Respondent's licensure shall not be reinstated except upon the Respondent's request for such reinstatement, and a necessary condition for reinstatement shall be the Respondent's full repayment-of all----
premium-funds to--James and Sina Tillie. Failure by JOHNNY L. JOHNSON to abide by the terms of suspension shall result in the immediate revocation of the Respondent's license in this State without further-proceedings.
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 the agency clerk, at 412 Larson Building, Tallahassee, Florida 32399-0300, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order.
DONE and ORDERED this 24th day of July, 1990.
TOM GALLAGHER
Treasurer and Insurance Commissioner
COPIES FURNISHED TO:
Linda M. Rigot, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Johnny L. Johnson
17120 Northwest 27th Avenue Opa Locka, Florida 33056
James A. Bossart, Esquire Department of Insurance and Treasurer
Division of Legal Services
412 Larson Building Tallahassee, Florida 32399-0300
| Issue Date | Proceedings |
|---|---|
| Jun. 13, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 24, 1990 | Agency Final Order | |
| Jun. 13, 1990 | Recommended Order | Suspension of licensure appropriate where insurance agent failed to refund premiums where coverage not obtained and insured demanded refund of premiums |
DEPARTMENT OF INSURANCE vs DANIEL LEE ALISON, 89-006161 (1989)
DEPARTMENT OF INSURANCE vs ROBERT CHARLES ANDERSON, 89-006161 (1989)
DEPARTMENT OF INSURANCE AND TREASURER vs. LARRY WAYNE LINDSAY, 89-006161 (1989)
DEPARTMENT OF INSURANCE AND TREASURER vs. JON SCOTT ROBBINS, 89-006161 (1989)
DEPARTMENT OF INSURANCE AND TREASURER vs RALPH EDWARD CARTER, 89-006161 (1989)
