STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0694

)

DOYLE CARLTON NEWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case on June 10, 1994, by telephone conference call attended by the undersigned, Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, and counsel for the Petitioner.

APPEARANCES

For Petitioner: William C. Childers, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Was not present and was not represented.

STATEMENT OF THE ISSUES

The issue for consideration in this hearing was whether Respondent's license as a life and health debit agent and a general lines, (fire), agent should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated January 26, 1993, the Treasurer and Insurance Commissioner of the State of Florida seeks to discipline Respondent's insurance license as described above because he failed to account for and pay over to the company by which he was employed, all funds collected by him on the company's behalf, in violation of various provisions of Sections 626.611, 626.561, and 626.621, Florida Statutes. By handwritten letter dated February 11, 1993, Respondent indicated his disagreement with the amount claimed to be owed by him, and on the basis of this disclaimer, the Department referred the matter to the Division of Administrative Hearings for appointment of a Hearing Officer.

Respondent did not respond to the Division's Initial Order dated February 14, 1994, a copy of which was sent by U.S. Mail to Respondent at one of the addresses listed for him in the material forwarded by the Department. In fact, the Initial Order was returned by the Postal Department with the notation that delivery was attempted but that the addressee was unknown at that address. The

subsequent Notice of Hearing was mailed to Respondent at two other addresses, those which were listed by the Department on its Administrative Complaint, and at the company for which he had previously worked. All were returned without delivery and with the notation that no forwarding order was on file.

At the hearing, held by telephone conference call, of which an unsuccessful attempt was made to inform Respondent, the taking of testimony was delayed for

15 minutes beyond the scheduled starting time but Respondent did not appear. Counsel for the Department advised that notwithstanding the Departmental requirement for licensed agents to inform the Department of a current mailing address, Respondent had failed to do so, and it had no other address for Respondent than those to which the Administrative Complaint and all Division Orders and Notices were sent. Petitioner's counsel also advised that attempts to contact Respondent telephonically were unsuccessful because his last known telephone number had been disconnected and there was no current number on file for him. Attempts to discover another current number were also unsuccessful.

At the hearing, Petitioner presented the testimony of Mark S. Sierra, local district manager for United Insurance Company of America, Respondent's former employer. Petitioner also introduced Petitioner's Exhibits 1 through 4.

Respondent not being present or represented presented no evidence in his behalf.

No transcript was provided and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Department of Insurance, was the state agency responsible for the licensing of commercial insurance sales agents and the regulation of the insurance industry and profession in Florida. Respondent, Doyle Carlton Newell, was licensed in Florida as a life and health (debit) agent and a general lines agent limited to industrial fire.

   
   

2. On April 26, 1991, Respondent entered into an agency contract with United Insurance Company of America, (United), which authorized him to sell authorized insurance policies for the company in Florida within his assigned territory. The terms of the agency contract obligated Respondent to remit to the company, on a weekly basis, all premium money collected by him on the company's behalf.

   
   

3. For reasons not stated, United terminated Respondent from employment on May 11, 1992 by use of company form 38A, and Respondent's agency contract was cancelled immediately. The termination was followed by an audit of Respondent's account because for some time, company management had had some concern as to the condition of those accounts. Respondent had admitted to improperly taking money belonging to the company, and the audit was conducted during the period immediately following his termination in May, 1992 through August, 1992.

   
   

4. Either prior to or as a part of the audit, Respondent submitted a list of all discrepancies he could recall. The audit revealed an actual deficiency of $3,731.67. After application of the bond submitted by and on behalf of Respondent, the ultimate shortage was $3,257.67. Respondent had, the day he left employment with the company, indicated he would reimburse it for any shortage when he overcame some personal matters and gambling problems. After the exact amount was determined, he was again asked, both orally and, several

   times through certified mail, to satisfy the obligation but as of the date of hearing, he had made no payments.

   
   

5. All policies written by Respondent were honored by the company regardless of the fact he had not remitted the premiums paid therefor.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

7. Petitioner seeks to discipline Respondent's licenses because of his failure to remit to his company premium monies collected by him as payment for policies sold by him on the company's behalf. If proven, Respondent's misconduct would constitute a violation of various provisions of Sections 626.561, 626.611, and 626.621, Florida Statutes.

   
   

8. The burden of proof in this case is on the Petitioner to establish Respondent's commission of the offenses alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

9. There is no question Respondent failed to account for and pay to the insurer here the funds received by him as policy premiums and which he held as trust funds for the company. This constitutes a violation of Section 626.561(1), Florida Statutes. The evidence of Respondent's misconduct also establishes that he used his license to circumvent the requirements of the Florida Insurance Code by failing to account properly for money placed in his trust, in violation of Section 626.611(4), Florida Statutes. His activities clearly establish his lack of fitness or trustworthiness to engage in the business of insurance, in violation of Section 626.611(7), Florida Statutes.

   
   

10. The evidence also demonstrates clearly that Respondent is guilty of fraudulent or dishonest practices in the conduct of his business under the license, in violation of Section 626.611(9), Florida Statutes; converted moneys belonging to insurers which he received in the conduct of business under his license, in violation of Section 626.611(10), Florida Statutes; willfully failed to comply with rules of the Department or the Code relating to transmittal of funds, in violation of Section 626.621(2), Florida Statutes; failed to pay over, upon demand, money of the insurer which came into his hands, in violation of Section 626.621(4), Florida Statutes; and engaged in practices which were detrimental to the public interest, in violation of Section 626.621(6), Florida Statutes.

    
    

11. The Respondent's misconduct related to volitional acts which involved his handling of money belonging to an insurer. There is no evidence on the record, however, which indicates he lacks reasonably adequate knowledge or does not possess the technical competence to engage in the insurance business, as alleged here as a violation of Section 626.611(8), Florida Statutes, and he must be found not guilty of that allegation.

    
    

12. Taken together, however, the evidence clearly establishes that Respondent should not be in a position where he handles the funds of others, and certainly not in the insurance business. It is to the credit of the company that it honored the policies written by Respondent even though it was not paid

therefor. Under other circumstances, the public might well have suffered loss, and this is a situation which the licensing provisions of the insurance code were designed to correct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered finding Respondent guilty of all misconduct and violations alleged except that relating to a lack of knowledge or technical competency, and revoking his license as an insurance agent in Florida.

RECOMMENDED this 23rd day of June, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 23rd day of June, 1994.

COPIES FURNISHED:

William C. Childers, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0222

Doyle Carlton Newell

8414 Waterford Avenue, T3 Tampa, Florida 33604

Doyle Carlton Newell

2106 Two Lakes Road, Apartment 2T Tampa, Florida 33604

Doyle Carlton Newell 13637 Twin Lakes Lane Tampa, Florida 33624

Doyle Carlton Newell American General Life and

Accident Insurance Co.

802 West Waters Avenue Tampa, Florida 33604

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil General Counsel

Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 94-000694

Orders for Case No: 94-000694