STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE & ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4167

)

JOANNE MARIE SHEPHERD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on April 4, and June 23, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Allen R. Moyad, Esquire

Department of Insurance Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Thomas F. Woods, Esquire

Gatlin, Woods & Carlson 1709-D Mahan Drive Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

Whether Respondent violated the following sections of the Florida Statutes: 626.041(2), 626.561(1), 626.592(1), 626.611(4), (5), (7)-(10), (13), 626.21(2),

(6), (12), 626.9521, 626.9541(1)(a)1, (b), (e)1., (k)1., (o)1., (z)3,

627.739(2), and 627.843. If so, what penalty should be imposed.

PRELIMINARY STATEMENT

On July 12, 1994, Petitioner, Department of Insurance and Treasurer (Department), issued a nine-count Administrative Complaint against Respondent, Joanne Marie Shepherd (Shepherd), alleging violations of Chapters 626 and 627, Florida Statutes. Shepherd requested an administrative hearing and the case was forwarded to the Division of Administrative Hearings on July 26, 1994, for assignment to a hearing officer.

The case was scheduled for final hearing on October 31, 1994. Shortly before the hearing date, Petitioner advised the Hearing Officer that the parties had settled the case and a hearing would not be necessary. The hearing was cancelled. On November 21, 1994, Respondent filed a Motion to Reset Final

Hearing, advising that the parties were unable to reach a final settlement. The case was reset for hearing on April 4, 1995. The final hearing commenced on that date but the parties were unable to conclude the hearing in the time allotted. The hearing was reconvened on June 23, 1995.

At the final hearing the Department called the following witnesses: Joanne Marie Shepherd, Andrew Prisco, Carol Sheridan, Andrew Combs, Jo Ann Strader, Wayne LeBlanc, Eric William Henry, Daniel Link, Kelly Conley, and Jo Ann Jones. Petitioner's Exhibits 1-32 were admitted in evidence. At the final hearing, Shepherd testified in her own behalf and called the following witnesses: David Scott, Susan Hanrotti, Richard Ferullo, Mary Beth Reilly, Irvin Mark Lader, Loretta Pace, Carol Sheridan, and Amy Kelly. Respondent's Exhibits 3-9 were admitted in evidence.

At the conclusion of the final hearing, the parties agreed to file proposed recommended orders within 30 days after the date the transcript was filed. The last volume of the transcript was filed on July 20, 1995. On August 16, 1995, Petitioner filed a Motion for Extension of Time to File Proposed Recommended Orders. An Order was issued extending the time for filing proposed recommended orders to September 5, 1995. Respondent filed her proposed recommended order on September 1, 1995. On September, 6, 1995, Petitioner filed its proposed recommended order and a Motion for One Day Extension of Time to File Proposed Recommended Order. Having shown good cause and there being no objection to the granting of the motion for extension of time, Petitioner's Motion for One Day Extension of Time is GRANTED. On September 13, 1995, the Department filed an unopposed Petitioner's Motion to Correct Records and Pleading, requesting that the title of its proposed recommended order be corrected to read, "Petitioner's Proposed Recommended Order." The motion is GRANTED. The parties proposed findings of facts are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Joanne Marie Shepherd (Shepherd), is currently and was at all times pertinent to this proceedings licensed in Florida as an authorized joint underwriter, association representative, life agent, life and health agent, general lines-property casualty, surety and miscellaneous lines agent, health insurance agent, independent adjuster, and dental health care service contract salesman.

   
   

2. At all times relevant to this proceeding, Shepherd was the president, secretary, and treasurer of Coral Springs Auto Tag and Insurance Agency, Inc. (Coral Springs Agency). Coral Springs Agency is an insurance agency incorporated and existing pursuant to the laws of the state of Florida. At all times relevant to this proceeding Shepherd would be present at the Coral Springs Agency office during approximately 90 percent of the operating hours of the business.

   
   

3. In early 1992, Shepherd organized an automobile club, Quality Motoring Association (QMA). At all times relevant to this proceeding, Shepherd was the vice president, secretary, treasurer, director, and resident agent of QMA. QMA provides one or more of the following services: coverage for automobile towing and road service, rental reimbursement, emergency travel expense, and theft reward. Shepherd's employees were paid a commission for each QMA contract which they sold.

4. Contracts for QMA services were on a printed form and contained the following language:

   
   

   THIS CONTRACT IS NOT AN INSURANCE POLICY AND DOES NOT COMPLY WITH THE FINANCIAL RESPONSI-

   BILITY OR NO-FAULT LAWS OF ANY STATE OR TERRITORY.

   
   

5. Jo Ann Jones and Kelly Conley were employed by Coral Springs Agency beginning in 1987 and 1991, respectively. They worked under the direct control and supervision of Shepherd.

   
   

6. On February 26, 1993, Ms. Jones received a limited customer representative license for automobile insurance. She received her 220 license in December, 1994.

   
   

7. During 1993, Ms. Conley spent approximately 60 to 70 percent of her work time performing tag and title work for Coral Springs Agency. In addition, her other duties included filing, answering the telephone, assisting in preparing correspondence concerning late payments and intentions to cancel, and selling QMA services. Her duties did include giving quotes for renewals and specific coverage requests, taking applications and receiving premium payments; however the evidence did not establish that Ms. Conley spent more than ten percent of her time performing these duties. She received her 220 license in October, 1994.

   
   

8. On October 26, 1994, Shepherd originally filed the name of the primary agent for Coral Springs Agency as Kelly Gorton. This filing was amended on December 15, 1994, to change the name of the primary agent to Jo Connors. The records of the Department do not show that Shepherd filed the name of the primary agent for Coral Springs Agency for 1990 through 1993. Shepherd did not file the name of the primary agency for Coral Springs Agency for 1990, 1991, 1992 and 1993.

   
   

9. In 1992, Andrew Coombs came to Coral Springs Agency to procure an automobile insurance policy. Shepherd explained the coverages to him. Mr. Coombs was issued a policy for PIP and property damage. Based on Respondent's Exhibit No. 8, Mr. Coombs was also issued comprehensive and collision coverage with Executive Insurance Company for a policy period of July 5, 1992 through July 5, 1993. The declaration sheet for the Executive Insurance Company policy showed that Mr. Coombs had a conviction for DUI/DWI on 6-11-90.

   
   

10. In 1992, Mr. Coombs signed a contract with QMA for towing and rental services. However, Mr. Coombs was under the impression that the rental and towing services were included as part of his insurance policy. The contract which he signed did not indicate the fee amount for the contract.

    
    

11. In June, 1993, Mr. Coombs called and discussed with Jo Ann Jones his need for a policy renewal and received a written quote from her on June 17, 1993, which stated:

    
    

    As per your request, please see the following renewal quote. 25,000 property damage, basic PIP w/a 2000 ded. Comp and coll. w/a 500 ded each. Your annual premium is 1278. w/a down payment of 302.62 and 6 months payments of

    170.56. If you have any questions please call me. Thank you.

12. The following Saturday, Mr. Coombs went to the Coral Springs Agency and gave Ms. Jones $200 in cash and a check for $1,078. He received a receipt from Ms. Jones for that amount showing that it was for "ins. paid in full." Mr. Coombs was in a hurry on that day and he executed a power of attorney appointing Coral Springs Auto Tag and Insurance Agency as his attorney-in-fact and authorizing the Coral Springs Agency to sign and execute applications for automobile insurance. The power of attorney did not authorize Coral Springs Agency to execute a contract with QMA for Mr. Coombs. Jo Ann Jones witnessed the execution of the power of attorney and dated it 7-3-93.

    
    

13. The power of attorney was used on July 3, 1993 to execute a contract with QMA for towing and rental services. The charge for these automobile club services was $100 and was so indicated on the contract. Mr. Coombs did not know that the power of attorney would be used to purchase towing and rental services with QMA.

    
    

14. The power of attorney was used also to execute Mr. Coombs' application for an insurance policy with Progressive. The application showed that the total premium with Progressive was $1,178. The policy with Progressive was for property damage, PIP, comprehensive and collision. In completing the application, it was the understanding of the Coral Springs Agency that the latest conviction that Mr. Coombs had was the DUI in June, 1990. However, Mr. Coombs had confused the date of the occurrence of the violation with the date of conviction and had not revealed that in October, 1990, his license had been revoked because of the DUI violation.

    
    

15. When Progressive learned of the revocation, it notified Mr. Coombs that an additional $98 premium would be due. As a result of the notification from Progressive, Mr. Coombs learned that Progressive had received $1,178 instead of the $1,278 which he had given Coral Springs Agency and that he had been charged $100 for QMA's towing and rental services. Surprised and upset by this revelation, Mr. Coombs contacted the Department of Insurance and made a complaint.

    
    

16. On July 24, 1993, Wayne LeBlanc went to the Coral Springs Agency to purchase automobile insurance. His current policy was with Allstate and he told Ms. Conley that he wanted similar coverage. The Allstate policy included towing and rental coverage for approximately eight dollars. Ms. Conley gave Mr. LeBlanc a quote.

    
    

17. Ms. Conley filled out Mr. LeBlanc's application for insurance with Progressive and a contract with QMA for rental and towing services. She placed "X's" on the documents indicating where Mr. LeBlanc should sign and he signed the documents. Mr. LeBlanc did not know that he was purchasing towing and rental services from an automobile club. Ms. Conley did not explain the QMA contract to Mr. LeBlanc. The Progressive application showed that the total premium for the insurance was $512. The QMA contract showed the amount of the fee for QMA services as $100.

    
    

18. Mr. LeBlanc gave Ms. Conley a check for $228. Ms. Conley applied $128 for payment of the insurance coverage and $100 for the QMA coverage. A short time later, Mr. LeBlanc received a statement from Progressive indicating that his insurance premium had increased from $512 to $702 because he had failed to show proof of insurance for the six months prior to the purchase of the Progressive policy.

19. Mr. LeBlanc cancelled his policy with Progressive. He received a check from QMA dated January 19, 1994 for $100 as a refund on his QMA coverage.

    
    

20. In August, 1993, Eric Henry called Coral Springs Agency for a quote for automobile insurance for his 1984 Nissan. He wanted the minimum coverage which was legally required. Mr. Henry was given a quote of between $480 and

    $490. He, along with his father, went to Coral Springs Agency to purchase the insurance.

    
    

21. Mr. Henry signed a Progressive insurance application. The Progressive application showed a total premium of $410 in two different locations on the contract as well as a breakdown of the premium by coverage. Additionally the application showed a $103 down payment with the remainder of the premium to be paid in installments.

    
    

22. Mr. Henry signed a contract with QMA. The contract showed a fee of

    $80 as well as the benefits he was receiving under the contract. Ms. Jones did not explain the QMA contract to Mr. Henry. He did not know that he was purchasing towing and rental services from an automobile club. He did not ask for the automobile club services and did not want them. He had never had towing and rental coverage before.

    
    

23. Mr. Henry gave Ms. Jones $183, of which $103 was applied to the insurance premium and $80 to QMA for towing and rental services. Mr. Henry was given a receipt by Ms. Jones that described the money as "DP on ins."

    
    

24. Mr. Henry learned that he had purchased QMA coverage from a representative from the Department. He contacted the Coral Springs Agency and requested a refund for the QMA coverage because he did not want and had not asked for the QMA services. QMA refunded his money. Mr. Henry has continued to do business with Coral Springs Agency.

    
    

25. On Saturday, August 21, 1993, JoAnne Strader called Coral Springs Agency for a quote for insurance on her automobile. Shepherd gave her a quote by telephone for coverage by Fortune Insurance Company. Ms. Strader wanted the minimum coverage required by law and nothing else. Coral Springs closed at one that afternoon so Ms. Strader hurried to the agency to purchase the insurance.

    
    

26. When she arrived at the agency, Ms. Conley pulled up the quote from the computer. Ms. Strader signed the application for the Fortune Insurance, a contract with QMA for towing and rental services, and an agreement for financing the insurance premiums. The application stated that the total insurance premium was $207. The QMA contract showed that the fee for the QMA services was $55 for six months. Ms. Jones did not explain the QMA contract. The financing agreement showed that the total premium was $207 with $102 being applied as the down payment. Ms. Strader gave Ms. Conley a check for $157 of which $102 was applied as a down payment for the insurance coverage and $55 for QMA services.

    
    

27. The finance agreement provided that Ms. Strader would make three payments of $42.95 beginning on September 21, 1993. Ms. Strader was given a copy of the finance agreement on August 21, 1993. Ms. Strader later called Coral Springs Agency and advised Ms. Conley that she had misplaced her insurance documents. Ms. Conley sent Ms. Strader a duplicate set, including a copy of the finance agreement, in October, 1993.

    
    

28. Ms. Strader was unaware at the time she purchased the insurance that she had also purchased automobile club services from QMA. She learned for the

    first time that she had purchased such services when a representative from the Department contacted her in January, 1994 and told her.

    
    

29. In February, 1994, Ms. Strader made a claim to QMA for reimbursement of towing expenses. She received a check dated February 18, 1994 from QMA.

    
    

30. On November 9, 1993, Daniel Link went to the Coral Springs Agency to purchase minimum automobile insurance coverage for his two vehicles. He was given a written quote by Jo Ann Jones. Mr. Link asked Ms. Jones to prepare the application and stated that he would come back later in the day to sign the application. When he returned to the agency the application was prepared and he signed it. The application showed that the total insurance premium was $1023 with a breakdown by vehicle of the costs for the coverages.

    
    

31. Mr. Link gave Coral Springs Agency a check for $356, which he thought would be applied to the insurance premium; however only $256 was applied toward the insurance premium. Mr. Link signed an agreement to finance the outstanding premium balance. The finance agreement showed that the total premium was $1023 with a down payment of $256 with the remainder to be paid in eight payments. His testimony was not clear whether he received a copy of the finance agreement on the day that he signed the agreement.

    
    

32. Mr. Link did not want to purchase towing and rental coverage. When he came into the agency to sign the application, he also signed a contract with QMA for automobile club services which showed a fee of $100. The blanks in the contract had been filled out by someone at Coral Springs Agency, and he signed where an "X" was placed. Ms. Jones did not explain the QMA contract to Mr. Link. He did not know that he had purchased such services. Of the amount which Mr. Link paid the Coral Springs Agency, $100 went to pay for QMA coverage.

    
    

33. In November, 1993, Andrew Prisco and his father went to the Coral Springs Agency to purchase insurance for a 1985 Nissan. Mr. Prisco's father had transferred the title to the car to Mr. Prisco. The vehicle has previously been insured through the Coral Springs Agency. Mr. Prisco's father handled the transaction for Mr. Prisco and discussed the coverage with Ms. Jones.

    
    

34. Mr. Prisco signed an application for Progressive Insurance. Jo Ann Jones had filled out a portion of the application. The application showed that the total premium was $410. Mr. Prisco gave the Coral Springs Agency a check for $490, thinking it was for insurance premiums.

    
    

35. Mr. Prisco did not want towing and rental services, but he signed a contract with QMA. Ms. Jones filled out the QMA agreement and put an "X" where Mr. Prisco was supposed to sign. Mr. Prisco signed where Ms. Jones indicated; however he was unaware that he was purchasing automobile club services. Ms. Jones did not explain the QMA contract to Mr. Prisco. The QMA contract showed that the fee for the services was $80. Of the $490 which he paid Coral Springs Agency, $80 was for QMA.

    
    

36. Mr. Prisco learned from a Department representative that he had purchased QMA services. Mr. Prisco and his father requested a refund from QMA. QMA refunded the fee paid by Mr. Prisco. Mr. Prisco has continued to do business with Coral Springs Agency.

    
    

37. Shepherd has been a licensed insurance agent in Florida since 1982. Other than the instant proceeding, Shepherd has never had a disciplinary action taken against her insurance agent license.

    CONCLUSIONS OF LAW

    
    

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

    
    

39. The Department has the burden to establish by clear and convincing evidence that Shepherd is guilty of the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987.)

    
    

40. Pursuant to Section 626.734, Florida Statutes, as a general lines agent and corporate officer and director of Coral Springs Agency, Shepherd was and remains personally liable and accountable for any wrongful acts, misconduct, or violations of any provisions of the Florida Insurance Code which were personally committed by her or committed by persons under her direct supervision and control while acting on behalf of the corporation, if Shepherd knew or should have known of such acts.

    
    

41. The Department has alleged that Shepherd has violated Section 626.041(2), Florida Statutes, which provides that with respect to insurance for which a general lines agent's license is issued, a person is precluded from certain actions unless licensed. These actions include:

    
    

    1. Solicit insurance or procure applications therefor;

    2. 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, certif- icate, or contract is not signed by him as agent or representative of the insurer;

    3. 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 state;

    4. 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 bona 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;

    5. 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; . . .

       
       

42. Section 626.0428, Florida Statutes and Rule 4-222.050, Florida Administrative Code, allow unlicensed clerical employees of an agent or agency to do the following tasks on an incidental basis: taking an application, giving a quote, and receiving premiums.

    
    

43. "Taking an application" is defined by Rule 4-222.020, Florida Administrative Code, as

    
    

    [F]illing in the blanks on an application form in response to information provided by the applicant, and then passing the application to an agent or customer representative for further application of judgment, processing, binding, policy interpretation, procedure explanation, or insurance advice and counsel, or similar activity. Taking an application does not include application of judgment, processing, binding, policy interpretation, signing an

    application, procedure explanation, or insurance advice and counsel or similar activity.

    
    

44. "Giving a quote" is defined by Rule 4-222.020, Florida Administrative Code as

    
    

    [T]he basic tasks of obtaining certain basic underwriting answers from the inquirer, and then consulting written underwriting materials that state the rate. Giving a quote does not involve application of judgment, processing, binding, policy interpretation, signing an

    application, procedure explanation, or insurance advice or counsel, or similar activity.

    
    

45. Rule 4-222.020(2), Florida Administrative Code defines "incidental" as

    
    

    1. Conduct by insurance agency personnel qualifies as "incidental" only if it meets the following three criteria:

       1. All the work done under the "incidental" exception, in terms of the amount of time the unlicensed employee spends doing it, is 10 percent or less of the employee's time compared to time spent on other tasks;

       2. The exact amount and timing of the work is unpredictable; and,

       3. On an agency-wide aggregate level, all the work done by unlicensed employees under the "incidental" exception is 10 percent or less of such work as compared to the amount of such work done by agents, solicitors, and customer representatives in that office.

46. Jo Ann Jones became licensed as a limited customer representative in February, 1993. A limited customer representative is "a customer representative appointed by a general lines agent or general lines agency to assist the agent or agency in transacting only the business of private passenger motor vehicle insurance from the office of the agent or agency." Section 626.072(2), Florida Statutes.

    
    

47. A customer representative may perform the following functions: take insurance applications, give quotes, interpret policies, explain procedures, give insurance advice, solicit new customers at the agent's office or by telephone from that office, and bind new or additional coverage. Rule 4- 213.130, Florida Administrative Code.

    
    

48. The Department has failed to establish that Ms. Jones' actions as alleged in Counts I, IV, VIII, and IX of the Administrative Complaint were in violation Section 626.041(2). Thus, the Department has failed to establish that Shepherd violated Section 626.041(2) as alleged in Counts I, IV, VIII, and IX of the Administrative Complaint.

    
    

49. Kelly Conley was not licensed to transact any insurance business during the time relevant to this proceeding. Ms. Conley did take an application, give a quote and receive a premium from Mr. LeBlanc. She did take an application and receive payment from Ms. Strader. The issue is whether these actions were done incidental to her clerical duties. The evidence presented did not establish that Ms. Conley spent more than ten percent of her time performing these types of duties; thus, Ms. Conley's interfacing with Mr. LeBlanc and Ms. Strader were incidental to her clerical duties at Coral Springs Agency. Ms. Conley did not violate Section 626.041(2), Florida Statutes. The Department has failed to establish that Shepherd violated Section 626.041(2) as alleged in Counts II and V of the Administrative Complaint.

    
    

50. The Department has alleged that Shepherd has violated Section 626.592(1), Florida Statutes, which provides:

    
    

    On or before January 1, 1990, and annually thereafter, each person operating an insurance agency and each location of a multiple location agency shall designate a primary agent for each insurance agency location and shall file the name of the person so designated, and the address of the insurance agency location where he is primary agent, with the Department of Insurance, on a form approved by the department. The designation of the primary agent may be changed at the option of the agency and any change shall be effective upon notification to the department.

    
    

51. The Department has established by clear and convincing evidence that Shepherd failed to designate and file the name of the primary agent for Coral Springs Agency for 1990, 1991, 1992, and 1993. The primary agent was designated and the name filed for 1994 after the Administrative Complaint was issued.

    Thus, the Department has established that Shepherd violated Section 626.592(1), Florida Statutes.

52. The Department has alleged that Shepherd violated Section 627.739(2), Florida Statutes, which provides:

    
    

    Insurers shall offer to each applicant and to each policy holder, upon the renewal of an existing policy, deductibles, in amounts of

    $250, $500, $1,000, and $2,000, such amount

    to be deducted from the benefits otherwise due each person subject to the deduction. However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

    
    

53. The Department has failed to present any evidence to establish that Shepherd violated Section 627.739(2), Florida Statutes.

    
    

54. The Department has alleged that Shepherd has violated Section 627.843, Florida Statutes, which provides:

    
    

    Before the due date of the first installment payable under a premium finance agreement, the premium finance company holding the agreement, or the insurance agent shall deliver to the insured, or mail to him at his address as shown in the agreement, a copy thereof or, if the agreement contained any blank space was sub- sequently filled in, in accordance with s.

    627.839(4), a copy of the agreement as so filled in.

    
    

55. The Department has failed to establish by clear and convincing evidence that Shepherd violated Section 627.843, Florida Statutes.

    
    

56. The Department has alleged that Shepherd is guilty of the practice of sliding, which is defined by Section 626.9541(1)(x) 3., Florida Statutes as:

    
    

    Charging an applicant for a specific ancillary coverage or product, in addition to the cost of the motor vehicle insurance coverage applied for, without the informed consent of the applicant.

    
    

    The Department has established by clear and convincing evidence that Ms. Conley and Ms. Jones did engage in the practice of sliding automobile club memberships as it relates to Counts I, II, IV, V, VIII, and IX, and pursuant to Section 626.734, Florida Statutes, Shepherd is vicariously guilty of sliding. Given the amount of time that Shepherd spent in the office she either knew or should have known what Ms. Conley and Ms. Jones were sliding as it related to the sale of QMA contracts.

    
    

57. Mr. Coombs, Mr. LeBlanc, Ms. Strader, Mr. Henry, Mr. Link, and Mr. Prisco were unaware at the time they were purchasing automobile insurance that they were also purchasing memberships in an automobile club. These customers were given a total premium quote, which unbeknownst to them included a fee for QMA. With the exception of Mr. Coombs, the customers signed the documents that were placed before them, thinking that the documents pertained to insurance coverage. Most of the customers learned they had purchased QMA services when they were so advised by a representative from the Department.

58. In the case of Mr. Coombs, he was clearly given a total premium quote of $1278, which indicated that he was getting property damage, PIP, collision and comprehensive insurance coverage. The quote did not mention towing and rental services with QMA, yet included the QMA fee in the total premium cost. Additionally, the power of attorney which he signed did not authorize Coral Springs Agency to sign a contract with QMA on his behalf. Unbeknownst to Mr. Coombs the power of attorney was used to purchase QMA coverage and he was charged a fee for QMA coverage.

    
    

59. The instant case is similar to Department of Insurance v. Williamson, DOAH Case No. 88-4553, (Recommended Order issued July 24, 1989, Final Order issued September 5, 1989) and Department of Insurance v. Pascale, DOAH Case No. 86-3565, (Recommended Order issued June 24, 1987, Final Order issued September 21, 1987). In those cases the Department determined that the agents or their salespersons had been guilty of charging for automobile club memberships without the informed consent of their customers.

    
    

60. Shepherd argues that because the customers signed the QMA contracts which stated they were not contracts for insurance that the customers had given their informed consent for the purchase of QMA services. In Thomas v. Department of Insurance and Treasurer, 559 So.2d 419 (Fla. 2d DCA 1990), the court held that agents were engaged in unlawful insurance practices even though the customers signed forms explaining that the customers were purchasing memberships in an automobile club. The customers did not request the memberships, the agents did not explain that it was not insurance and that it was optional, and the customers did not realize they were buying memberships. Given the totality of the circumstances, Shepherd's argument is rejected. It is clear that the customers thought the money that they were giving to Coral Springs Agency was for insurance premiums. Mr. LeBlanc had towing and rental with his previous insurance carrier and was charged $8 for that coverage. He had asked Coral Springs Agency for insurance coverage similar to what he had. Instead of being sold towing and rental coverage with his insurance policy for a nominal charge, he was charged a $100 for a membership in an automobile club. Mr. Henry, Ms. Strader, and Mr. Link asked for the minimum insurance coverage required by law and instead were sold memberships in an automobile club.

    
    

61. Additionally, the Department has established by clear and convincing evidence that Shepherd through the actions of her employees violated Sections 626.611(5), (7), and (9); 626.621 (2) and (6); and 626.9521, Florida Statutes, as set forth in Counts I, II, IV, V, VIII, and IX.

    
    

62. The Department has failed to present any evidence that established the alleged violations set forth in Counts III, VI, and VII of the Administrative Complaint.

    
    

63. Rule 4-231.040, Florida Administrative Code states that in calculating penalties, only the violation specifying the highest stated penalty will be considered for that count, and this will be referred to as the penalty per count. Each penalty per count is added together to determine the total penalty, which can be adjusted taking into consideration any mitigating or aggravating circumstances. The adjusted total penalty is referred to as the final penalty.

    
    

64. The highest penalty per count for Counts I, II, IV, V, VIII, and IX is suspension for nine months based on a violation of Section 626.911(9). The total penalty is a suspension for 40 months. In considering a final penalty, it should be noted that Shepherd's violations with the exception of Section 626.592(1) is based on vicarious liability, Shepherd has refunded the money to

those customers who requested a refund, and she has had no prior disciplinary actions taken against her license. Thus, the final penalty should be reduced to a two year suspension.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts III, VI, and

VII of the Administrative Complaint; finding that Joanne Shepherd violated

Section 626.592(1), Florida Statutes; finding that Shepherd violated Sections 626.9541(1)(x)3., 626.611(5), (7), and (9), Sections 626.621(2)(6), and

626.9521, Florida Statutes, as set forth in Counts II, IV, V, VIII and IX of the Administrative Complaint; and suspending Joanne Shepherd's license for two years.

DONE AND ENTERED this 16th day of October, 1995, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 16th day of October, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4167

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-4: Accepted in substance.

2. Paragraph 5: Rejected as constituting a conclusion of law.

3. Paragraphs 6-7: Accepted in substance.

4. Paragraph 8: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found.

5. Paragraph 9: Accepted in substance that Ms. Jones was employed as an employee of Coral Springs Agency during the time period relevant to this proceeding.

6. Paragraph 10: Rejected as not supported by the evidence. Ms. Jones was a limited customer representative.

7. Paragraphs 11-19: Accepted in substance.

8. Paragraph 20: Accepted in substance that Progressive asked for an additional $98 but denied that the reason for the additional premium was because Shepherd failed to send Progressive $1,278. The reason of the increase was because Coomb's license had been either suspended or revoked in 1990.

9. Paragraph 21: Accepted in substance.

10. Paragraph 22: The first sentence is accepted in substance to the extent that Ms. Conley took an application from Mr. Leblanc but not that she solicited or procured the application. The last sentence is rejected as not supported by clear and convincing evidence.

11. Paragraph 23: Accepted in substance.

12. Paragraph 24: The first sentence is rejected as to soliciting. The remainder is accepted in substance.

13. Paragraphs 25-32: Accepted in substance.

14. Paragraph 33: The first sentence is accepted in substance that Ms. Conley took an application from Ms. Strader for automobile insurance with Fortune but rejected that she solicited or procured the application. The last sentence is accepted in substance.

15. Paragraph 34: Accepted in substance.

16. Paragraph 35: The first sentence is accepted in substance except as to soliciting. The remainder is accepted in substance.

17. Paragraph 36: The first sentence is accepted in substance. The remainder is rejected as not supported by clear and convincing evidence.

18. Paragraphs 37-39: Accepted in substance.

19. Paragraph 40: Rejected as not supported by the evidence.

20. Paragraphs 41-42: Accepted in substance.

21. Paragraph 43: The first sentence is accepted in substance. The remainder is rejected as not supported by clear and convincing evidence.

22. Paragraphs 44-49: Accepted in substance.

Respondent's Proposed Findings of Fact.

1. Paragraph 1: Accepted in substance except as to Mr. Coombs. He did not sign the application.

2. Paragraph 2: Accepted in substance.

3. Paragraph 3: Rejected as not supported by the evidence.

4. Paragraph 4: Accepted in substance.

5. Paragraphs 5-6: Accepted in substance.

6. Paragraph 7: Rejected as not supported by the evidence.

7. Paragraph 8: Rejected as constituting a conclusion of law.

8. Paragraph 9: Rejected as irrelevant.

9. Paragraph 10: Accepted in substance.

10. Paragraphs 11-12: Accepted in substance.

11. Paragraphs 13-17: Rejected as not supported by the evidence.

12. Paragraph 18: Accepted in substance.

COPIES FURNISHED:

Allen R. Moayad, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Thomas F. Woods, Esquire

Gatlin, Woods, Carlson and Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308

Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Dan Sumner

Acting General Counsel Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399

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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

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

THE TREASURER OF THE STATE OF FLORIDA DEPARTMENT OF INSURANCE

BILL NELSON

IN THE MATTER OF: DOAH Case No. 94-4167 Case Nos. 07420-93-A-ARM

JOANNE MARIE SHEPHERD 12646-95-F-DMM

/

FINAL ORDER

This cause came before the undersigned Treasurer and insurance Commissioner of the State of Florida for consideration and final agency action. On July 12, 1994 an Administrative Complaint was filed alleging that the Respondent had violated numerous provisions of Chapters 626 and 627, Florida Statutes based on information provided to the Department. 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 Susan B. Kirkland, Hearing Officer for the Division of Administrative Hearings, on April 4 and June 23, 1995.

After consideration of the evidence, testimony, exhibits and post-hearing submissions of the parties, on October 16, 1995, the Hearing Officer rendered a Recommended Order (Attached as Exhibit "A") covering all findings of fact and conclusions of law.

The Petitioner did not file exceptions. On October 30, 1995, the Respondent filed 18 exceptions to the Recommended Order. The exceptions filed by Respondent are vague and poorly referenced. The exceptions do not separate objections to conclusions, of law from objections to findings of fact. Further, within a single numbered exception, Respondent has often times combined numerous broad objections to both law and fact. Further, Respondent's exceptions do not cite the numbered paragraphs of the Hearing Officer's Recommended Order and rarely do they cite to the record. However, pursuant to Rule 28-5, Florida Administrative Code, I have rendered a ruling on each exception, with a brief statement of the grounds which support each ruling and have made supplemental Conclusions of Laws as set forth below.

RULING ON RESPONDENT'S EXCEPTIONS TO THE RECOMMENDED ORDER:

1. The Respondent first takes exception to the Hearing Officer's Conclusion of Law that Respondent violated Section 626.9541(1)(x)3., Florida Statutes. The Respondent asserts in this exception that the Respondent was never charged with a violation of this section and that the violation was not alleged in the administrative complaint.

The Conclusions of Law of the Hearing Officer may be rejected and modified by the agency responsible for the enforcement of the law. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985); Maynard v. Florida Unemployment Appeals Commission, 609 So.2d 143 (Fla. DCA 1992); Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2nd DCA 1991); Siess v. Department of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982)

The Department of insurance is the state agency responsible for the interpretation, implementation and enforcement of Chapter 626, and as such its expertise and experience with respect to its proper interpretation is entitled to great deference. Ball v. Florida Podiatrist Trust, ,620 So.2d 1018 (Fla. 1st DCA 1993). A review of the record including the administrative complaint reveals that this violation was not charged. Therefore, this exception is ACCEPTED.

However, conclusion of law number 56 contains an error in transcription and as such it is corrected below in the supplemental conclusion of law. While conclusion of law number 56 incorrectly cites a violation of Section 626.9541(1)(x)3., Florida Statutes. The language which follows the incorrect Section cite is language taken from Section 626.9541(1)(z)3., Florida Statutes. This language details the practice of sliding. This practice was correctly found to have occurred by the Hearing Officer. The relevant language of Section 626.9541(1)(z)3., Florida Statutes was included under conclusion of law number 56, and reads in pertinent part: Sliding is the act or practice of...

3. Charging an applicant for a specific ancillary coverage or product, in addition to the cost of the motor vehicle insurance coverage applied for, without the informed consent of the applicant.

The following supplemental Conclusion of Law is made in lieu of Conclusion of Law number 56 which is rejected:

SUPPLEMENTAL CONCLUSIONS OF LAW

56. The department has alleged that Shepherd is guilty of the practice of sliding, which is defined by Section 626.9541(1)(z)3., Florida Statutes as:

Charging an applicant for a specific ancillary coverage or product, in addition to the cost of the motor vehicle insurance coverage applied for, without the informed consent of the applicant.

The Department has established by clear and convincing evidence that Ms. Conley and Ms. Jones did engage in the practice of sliding automobile club memberships as it relates to Counts I, II, IV, V, VIII, and IX, and pursuant to Section 626.734, Florida Statutes, Shepherd is vicariously guilty of sliding. Given the amount of time that Shepherd spent in the office she either knew or should have known that Ms. Conley and Ms. Jones were sliding as it related to the sale of Quality Motoring Association (hereinafter "QMA") contracts.

1. The Respondent next takes exception to the Hearing Officer's use of Department of Insurance v. Williamson, DOAH Case No. 88-4553, and Department of Insurance v. Pascale, DOAH Case No. 86-3565 under conclusion of law number 59. The Hearing Officer does not state that she has relied upon these cases to establish the correct standard of proof.

   
   

   The Hearing Officer clearly and correctly enunciates the standard of proof under conclusion of law number 39. Conclusion of law number 59 merely notes similarities between the instant case and the cited cases. As cited under conclusion of law number 39, the Department has the burden to establish by clear and convincing evidence that Shepherd is guilty of the acts alleged in the Administrative Complaint. Ferris v. Turlington, 510 S.2d 292 (Fla. 1987). This exception is therefore REJECTED.

   
   

2. The Respondent argues that the Hearing Officer failed to give the correct weight to the standard of proof required by Ferris. However, as discussed above, the Hearing Officer in the instant case, correctly applied the elevated standard of clear and convincing evidence. This standard applies when there is a contemplated loss of livelihood. In applying this standard, the Hearing Officer did consider the circumstances and therefore applied the elevated standard of proof as Ferris, 510 S.2d 292 (Fla. 1987) directs. This exception is therefore REJECTED.

   
   

3. The Respondent next argues that the Hearing Officer failed to articulate how the burden of proof was carried in light of Evans Packing Co. v. Department of Agriculture and Consumer Services, 500 So.2d 112 (Fla. 1st DCA 1989). Respondent then cites language from a footnote in that case. While this language may help a reader of that case understand why the scientific test at issue was rejected, this footnoted language does not provide the basis for a "test" which a Hearing Officer is required to explicitly apply on each occasion where "clear and convincing evidence" is the standard of proof. The testimonial and documentary evidence presented in this case is sufficient to meet the Department's burden of clear and convincing evidence. This exception is therefore REJECTED.

4. The Respondent takes exception to the Hearing Officer's finding that the customers were unaware of purchases of automobile club memberships. However, there is substantial and competent evidence to support this finding of fact. An agency's final order must not reject or modify the Hearing Officer's findings of fact unless the agency first determines from a review of the complete record and states with particularity in the final order that the findings of fact were not based on competent and substantial evidence or the proceedings did not comply with the essential requirements of law. Groves- Watkins Constructors v. Department of Transportation, 511 So.2d 323 (Fla. 1st

   DCA 1987), quashed on other grounds, 530 So.2d 912 (Fla. 1988). The record does not support this exception. This exception is therefore DENIED.

   
   

5. The Respondent excepts to the Hearing Officer's use of Thomas v. Department of insurance and Treasurer, 559 So.2d 419 (Fla. 2nd DCA 1990). The Hearing Officer referred to Thomas when addressing Respondent's claim that the customers had given informed consent for the purchase of the memberships in automobile clubs because they signed QMA contracts. Respondent argues that the ruling in vasquez v. Bankers insurance Co., 502 S. 2d 894 (Fla. 1987) rather than Thomas should be determinative on this issue. As explained by the court in Thomas, the vasquez decision concerns an insured's contractual relationship with his or her insurance company. It does not concern the customer's relationship with the insurance agent or the agent's statutory responsibilities to the customer and the general public. The Thomas decision is, as the Hearing Officer noted, more factually similar to the instant case and was appropriately referenced by the Hearing Officer. This exception is therefore DENIED.

   
   

6. The Respondent further excepts to the Hearing Officer's use of Thomas. For the reasons as discussed above under number 6, this exception is DENIED.

   
   

7. The Respondent excepts to the application of provisions of Chapter 626, Florida Statutes to the Respondent in this case. Chapter 626, Florida Statutes is controlling and applies to the conduct of the agent in the instant case. The violations cited by Respondent are detailed under Sections 626.611 and 626.621, Florida Statutes and arose from Respondent's conduct under her license as an insurance agent in this state. Respondent was not engaged solely in the business of sale of automobile club memberships. Rather, Respondent used her license as an insurance agent as a means to facilitate the sale of the automobile club memberships while engaged in practices that were violative of numerous provisions of the Florida insurance Code.

   
   

   Further, contrary to Respondent's claim, there was substantial competent evidence to support a factual finding that misrepresentation and fraudulent or dishonest practices were used by Respondent in her conduct of business under her license as an insurance agent. This exception is therefore DENIED.

   
   

8. The Respondent next raises exceptions to the Hearing Officer's use of the theory of vicarious liability and claims that the finding of a violation of Section 626.611(7), Florida Statutes, is predicated on the validity of this theory. In conclusion of law number 40, the Hearing Officer cites Section 626.734, Florida Statutes and finds that Respondent:

   
   

   as a general lines agent and corporate officer or director of Coral Springs Agency, Shepherd was and remains personally liable for any wrongful acts, misconduct, or violations of any provisions of the Florida insurance Code which were personally committed by her or committed

   by persons under her direct supervision and control while acting on behalf of the corpora- tion, if Shepherd knew or should have known of the acts.

   
   

   The Hearing Officer correctly applies Section 626.734, Florida Statutes, where applicable, to hold Respondent liable for the acts of her employees.

   
   

   Further, the finding that Respondent violated Section 626.611(7), Florida Statutes through the acts of her employees is supported by clear and convincing evidence. This exception is therefore DENIED.

   
   

9. The Respondent takes exception to the calculation of the penalty under conclusion of law number 64. The Hearing Officer incorrectly states that the total penalty as calculated in accordance with Rule 4-231.040, Florida Administrative Code would be forty (40) months. While Respondent argues this calculation is impermissible due to the effect of Section 626.641, Florida Statutes, this is not an accurate statement of the flaw in the calculation. The effect of this Section will be discussed below under this paragraph number 10.

The Hearing Officer under conclusion of law number 63 does state the correct procedure for calculation of the penalty. However, the calculation under conclusion of law number 64 is incorrect. The penalty per count is nine

(9) months based upon the violations of 626.611(9), Florida Statutes; not 626.911(9), Florida Statutes as the Hearing Officer mistakenly cites.

The penalty per count of nine (9) months was correctly identified by the Hearing Officer. Once identified, the penalties per count should be added. In the instant case, 626.611(9), which is the violation with the same maximum penalty in each count, is found to be violated in six (6) of the counts as framed in the administrative complaint. Specifically, Counts I, II, IV, V, VIII and IX were found to include violations of 626.611(9), Florida Statutes. The nine (9) months penalty per count multiplied by the six (6) counts equals a total penalty of suspension for fifty four (54) months, not forty (40) as the Hearing Officer Calculated.

However, Section 626.641(1), Florida Statutes states that an agent shall not be suspended for a term to exceed two years. Therefore, although the total penalty as recalculated herein is a fifty four (54) month suspension, the maximum allowable suspension is twenty four (24) months or two (2) years. Since a fifty four (54) month suspension is not allowable and in light of the multiplicity of the violations, the appropriate total penalty in this case is revocation of Respondent's licenses. This exception is therefore ACCEPTED.

The following supplemental Conclusion of Law is made in lieu of Conclusion of Law 64 which is rejected:

SUPPLEMENTAL CONCLUSIONS OF LAW

64. The highest penalty per count for Counts I, II, IV, I, VIII, and IX is suspension for nine (9) months based on a violation of Section 626.611(9), Florida Statutes. The total penalty is a suspension for fifty four (54) months. The maximum allowable period of suspension provided for under Section 626.641(1), Florida Statutes is twenty four (24) months or (2) years. Since a

fifty four (54) month suspension is not allowable and in light of the multiplicity of the violations, the appropriate total penalty in this case is revocation.

However, in considering a final penalty, the following mitigating factors should be noted; Shepherd's violations, with the exception of Section 626.592(1), Florida Statutes are based on vicarious liability, Shepherd has refunded the money to those customers who requested a refund, and Shepherd has had no prior disciplinary actions taken against her license. Therefore, pursuant to Rule 4-231.160, Florida Administrative Code, the final penalty is reduced from revocation to a two (2) year suspension.

1. The Respondent excepts to the finding that Jo Ann Jones "solicited" applications. The Respondent offers a Webster's Dictionary definition of "solicitation." The Department has however, addressed the issue of solicitation in four separate rule chapters: Chapters 4-150, 4-156, 4-193 and 4C-6, Florida Administrative Code. And therefore it is proper to look to the language of these Departmental Rules in determining what the Department intended "solicitation" to mean, rather than turning to a non-industry, dictionary definition for guidance.

   
   

   For example, Chapter 4-150.008(3), Florida Administrative Code requires a spokesperson who performs any of the following acts, 'which shall be considered soliciting an insurance product," to be licensed as an agent if he: solicits insurance, procures applications, engages in analyzing or abstracting insurance policies, engages in counseling, advising or giving opinions to persons relative to insurance contracts or performs invitations to contract. Respondent's employee Jo Ann Jones was found by competent and substantial evidence to have engaged in the type of acts described above which constitute "solicitation." This exception is therefore DENIED.

   
   

2. The Respondent excepts to the finding that Kelly Conley "solicited" applications. The definition of "solicitation" is as discussed above under number 11. Respondent's employee Kelly Conley was found by competent and substantial evidence to have engaged in the type of acts described above which constitute "solicitation." This exception is therefore DENIED.

   
   

3. The Respondent excepts to the finding that Respondent "fraudulently quoted..." Respondent claims no allegations of fraud were made and further, that there was no evidence to support such an allegation. Respondent overlooks the existence of Section 626.611(9), Florida Statutes. Respondent was charged with multiple violations of this Section in the Administrative Complaint and the Hearing Officer found six (6) such violations to exist and have been proven by clear and convincing evidence. This exception is therefore DENIED.

   
   

4. The Respondent raises a multitude of exceptions under this paragraph. The first exception is to the Hearing Officer's finding of that the Respondent's staff was acting under direct instruction from the Respondent. There was competent and substantial evidence in the record to support such a finding. Respondent next raises the issue of informed consent. This issue was disposed of above under paragraph numbers 5,6 and 7. This exception is therefore DENIED.

   
   

5. The Respondent again raises the issue of informed consent. This issue was addressed above under paragraph numbers 5,6 and 7. This exception number 15 merely repeats and restates the elements of several previous exceptions. This exception is therefore DENIED.

6. The Respondent takes exception to the Hearing Officer's finding that Kelly Conley and Jo Ann Jones intentionally failed to intentionally failed to inform customers that part of their fee was for QMA coverage. There is however, competent and substantial evidence to support the finding of the intentional failure and in particular, the testimony of Mr. Coombs and Ms. Strader and the documentary evidence support such a finding. This exception is therefore DENIED.

   
   

7. The Respondent again objects to the finding of fraud. This is addressed above under paragraph numbers 8 and 13. The Respondent then takes exception to form in which the following statement is drafted by Petitioner and adopted by the Hearing Officer: "the premium financing agreement... fraudulently provided." The Respondent, whose own drafting could not survive such scrutiny, senselessly takes exception to the drafting and states that "a finance agreement is not capable of committing fraud." While this statement may not have been drafted in the most clear form, the meaning of this statement when read in full context is clear and easily understood. This exception is therefore DENIED.

   
   

8. Respondent again raises the informed consent issue as a defense to the charge of sliding. No informed consent was found to exist in this case. The Department met its burden of clear and convincing proof on the charges of sliding. Respondent's defense of "informed consent" was not proven to the satisfaction of the Hearing Officer nor was such a factual finding of informed consent supported by competent and substantial evidence. The Department was not required to prove the existence of a "policy" which would negate the defense of informed consent when the defense was not meritorious. Due to the existence of competent and substantial evidence of fraud and other misconduct surrounding the execution of the documents which purport to give informed consent the Respondent is precluded from claiming informed consent. This exception is therefore DENIED.

Upon careful consideration of the record, including the original charging document, the evidence adduced at formal hearing, the transcript of the hearing, the Hearing Officer's Recommended Order, the Respondent's exceptions, the relevant statutes, rules and case law, and being otherwise fully advised in the premises:

IT IS THEREFORE ORDERED:

1. The Findings of Fact of the Hearing Officer are adopted in full as the Department's Findings of Fact.

   
   

2. The Conclusions of Law of the Hearing Officer, with the exception of numbers 56 and 64, are adopted in full as the Department's Conclusions of Law. Supplemental Conclusions of Law numbers 56 and 64 are made and adopted by the Department in lieu of adopting Conclusions of Law numbers 56 and 64 of the Hearing Officer.

   
   

3. The recommended penalty of a two (2) year suspension of Respondent's insurance licenses is accepted as the appropriate disposition of this case.

ACCORDINGLY, the penalty recommended by Susan B. Kirkland, Hearing Officer, is hereby adopted by the Department of Insurance and Respondent's insurance licenses and eligibility for licensure in the State of Florida hereby stands SUSPENDED for two (2) years effective the date of this Final Order. During the period of suspension, the Respondent shall not engage in or attempt or profess

to engage in any transaction or business for which a license or appointment is required under the Florida insurance Code. Furthermore, during the period of suspension, the Respondent shall not directly or indirectly own, control or be employed in any manner by an insurance agent or agency.

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, 200 East Gaines Street, 612 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 ORDERED this 18th day of December, 1995

COPIES FURNISHED:

Susan B. Kirkland Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Allen Moayad, Esquire Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

Thomas F. Woods, Esquire Gatlin, Woods & Carl son 1709-D Mahan Drive Tallahassee, Florida 32308

BILL NELSON

Treasurer and

Insurance Commissioner

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

DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JOANNE MARIE SHEPHERD, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 95-4699

DOAH CASE NO. 94-4167

DEPARTMENT OF INSURANCE,

Appellee.

/ Opinion filed August 15, 1996.

An appeal from an order of the Department of Insurance.

Thomas F. Woods of Gatlin, Woods & Carlson, Tallahassee, for Appellant.

Allen R. Moayad of the Department of Insurance and Treasurer, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED. See Thomas v. Department of Ins., 559 So. 2d 419 (Fla. 2d DCA 1990), review denied, 570 So. 2d 1307 (Fla. 1990).

KAHN, DAVIS, and BENTON, JJ., CONCUR.

Docket for Case No: 94-004167

Orders for Case No: 94-004167