STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4604

)

DWETTA JANICE HUNTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Miami, Florida on September 18, 1996, before Stuart M. Lerner, a duly designated Hearing Officer 1/ of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael H. Davidson, Esquire

Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Dwetta Janice Hunter, pro se

610 Northwest 214th Street

Building Number 3, Apartment Number 201

Miami, Florida 33169 STATEMENT OF THE ISSUE

1. Whether Respondent committed the violations alleged in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against her?

PRELIMINARY STATEMENT

On July 11, 1995, Petitioner issued an Administrative Complaint alleging that Respondent, a licensed general lines insurance agent, had engaged in conduct that warranted the suspension or revocation of her license. There are five counts in the Administrative Complaint.

The following allegation is made in Count I of the Administrative Complaint:

4. In November and December, 1993, in Dade County, Florida, you [Respondent] accepted premium payments for workers' compensation

and liability insurance from Joseph Ha, owner of Dashiwa Corporation, d/b/a Liberty Flea Market, in Miami, Florida, but failed to properly and promptly remit the appropriate premiums to the purported insurer, resulting in cancellation of the policy in question, failed to effectuate delivery of any such policy(ies) ever in effect to Dashiwa Corpor-

ation, and failed or refused to secure workmen's compensation coverage or to refund those premiums after demand.

According to the Administrative Complaint, in engaging in such conduct, Respondent violated Sections 626.561(1), 626.611(7), 626.611(10), 626.611(13), and 626.621(2), Florida Statutes.

Count II of the Administrative Complaint alleges the following:

6. In December, 1993, in Dade County, Florida, you [Respondent] accepted an automobile insurance premium down payment from Rene A. Hernandez, for an automobile owned by Gloria E. Hernandez, but that you failed to secure coverage for that automobile and owner with any insurer, and failed or refused to return said downpayment and subse- quent premium payments, and further, that your failures or refusals resulted in non-coverage

to the automobile and owner at the time of an accident involving that vehicle, causing a loss to the owner thereof.

According to the Administrative Complaint, in engaging in such conduct, Respondent violated Sections 626.561(1), 626.611(7), 626.611(10), 626.611(13),

626.621(2), and 626.621(6), Florida Statutes.

Count III of the Administrative Complaint alleges the following:

8. In August, 1994, in Dade County, Florida, you [Respondent] accepted an automobile insurance premium downpayment from Jacquetta Yolanda Jackson, failed to properly and promptly remit necessary premiums to any insurer, resulting in rejection

of Jackson's application for insurance, repeatedly issued bank drafts for transmittal of necessary premiums to the insurer, which drafts were dis- honored, and failed to secure any such coverage for Jacquetta Yolanda Jackson for a period of eight months thereafter.

According to the Administrative Complaint, in engaging in such conduct, Respondent violated Sections 626.561(1), 626.611(7), 626.611(10), 626.611(13), and 626.621(2), Florida Statutes.

Count IV of the Administrative Complaint alleges the following:

1. In September, 1994, in Dade County, Florida you [Respondent] accepted an automobile insurance

   premium downpayment from Roderick T. Cole, but failed to effectuate delivery of any such policy to Roderick T. Cole, failed to properly and promptly remit necessary premiums and applica- tions to any insurer, failed to secure any such coverage for Roderick T. Cole for an extended period of time, and failed to effectuate a refund of premiums paid by Cole to Bankers Insurance for

   a policy you never secured for him with that insurer.

   
   

   According to the Administrative Complaint, in engaging in such conduct, Respondent violated Sections 626.561(1), 626.611(7), 626.611(8), 626.611(10),

   626.611(13), and 626.621(2), Florida Statutes.

   
   

   Count V of the Administrative Complaint alleges the following:

   
   

2. On or about January 14, 1993, you [Respondent] purported to secure commercial automobile insurance coverage for the James E. Scott Community Associa- tion, but failed to remit necessary premiums, resulting in rejection of that application for insurance.

According to the Administrative Complaint, in engaging in such conduct, Respondent violated Sections 626.561(1), 626.611(7), 626.611(8), 626.611(10),

626.611(13), and 626.621(2), Florida Statutes.

Respondent denied the allegations of wrongdoing alleged in the Administrative Complaint and requested a formal hearing on the matter. On September 19, 1995, the case was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Respondent had requested.

On March 29, 1996, Petitioner filed a Motion to Specify Established Facts in which it requested the previously assigned Hearing Officer to declare that the facts alleged in Count I of the Administrative Complaint had been "conclusively established" as a result of admissions that Respondent had made. On May 3, 1996, the previously assigned Hearing Officer issued an order declaring that "the facts in Count I of the Administrative Complaint are deemed admitted and not subject to dispute at the final hearing."

As noted above, the final hearing in this case was held on September 18, 1996. At the outset of the hearing, Respondent orally requested permission to withdraw the technical admissions resulting (by operation of Rule 1.370(b), Florida Rules of Civil Procedure) from her failure to have timely responded to Petitioner's requests for admissions 4 and 17. 2/ The undersigned (relying on the case of Wilson v. Department of Administration, Division of Retirement, 538 So.2d 139 (Fla. 4th DCA 1989)) granted Respondent such permission.

During the evidentiary portion of the hearing, Petitioner offered two exhibits (Petitioner's Exhibits 1 and 2) into evidence. One of these exhibits (Petitioner's Exhibit 1) was the transcript of a deposition of Respondent taken on December 1, 1995. Both of Petitioner's exhibits were received into evidence without objection. Petitioner presented no live witnesses.

Respondent testified on her own behalf. She presented no other testimony or evidence.

At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties of their right to file proposed recommended orders and established a deadline (30 days after the undersigned's receipt of the transcript of the hearing) for the filing of these post-hearing submittals. The undersigned received the transcript of the hearing on October 15, 1996. On November 21, 1996, Petitioner filed a proposed recommended order, which the undersigned has carefully considered. (In its proposed recommended order, Petitioner candidly concedes that "[r]elative to Count [V] of the Administrative Complaint, the record contains insufficient evidence to support the allegations therein." In view of Petitioner's concession concerning the lack of evidence to support the allegations made in Count V of the Administrative Complaint, any further discussion concerning these allegations in this Recommended Order is unnecessary. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole (including the admissions made by Respondent), the following Findings of Fact are made:

Background Information

1. Respondent is now, and has been since 1978, licensed by Petitioner as a general lines insurance agent. During the period of her licensure, Petitioner has not taken any disciplinary action against her.

   
   

2. Professional Future Development Corporation (hereinafter referred to as "Professional") is an insurance agency located at 2234 Northwest 2nd Avenue in Miami, Florida.

   
   

3. Respondent owns and works as an insurance agent for Professional.

   
   

   Count I

   
   

4. Joseph Ha is the owner of Dashiwa Corporation.

   
   

5. Dashiwa Corporation operates the Liberty Flea Market in Miami, Florida.

   
   

6. Ha enlisted Respondent's services to obtain workers' compensation insurance for his business. 3/

   
   

7. In November and December of 1993, Ha provided Respondent with monies (in the form of checks made out to Professional) to be used to pay the premiums for such insurance.

   
   

8. Respondent deposited the checks in Professional's bank account.

   
   

9. She did not properly and promptly (in the regular course of business) remit the premium payments to the insurer. Instead, without Ha's consent, she used these monies to help pay the medical expenses of a cousin who had AIDS.

   
   

10. As a result of Respondent's dereliction, Ha's business was without the workers' compensation insurance coverage Respondent was supposed to obtain for him.

11. Respondent has yet to make a complete refund of the monies Ha provided her to obtain such coverage.

    
    

    Count II

    
    

12. On or about December 21, 1993, Rene Hernandez, on behalf of his mother, Gloria Hernandez, provided Respondent with a down payment (in the amount of $251.00) for insurance that Respondent was to obtain for an automobile owned by Gloria Hernandez.

    
    

13. The balance of the premium was to be financed by a premium finance company.

    
    

14. Respondent failed to take the necessary steps (in the regular course of business) to obtain insurance for Gloria Hernandez's automobile.

    
    

15. In March of 1994, Hernandez's automobile was involved in an accident.

    
    

16. As of the date of the accident, Respondent had neither obtained insurance for the automobile, nor had she refunded (in the regular course of business) the monies she had been given to obtain such insurance.

    
    

17. Following the accident, in June of 1994, Respondent finally secured coverage for Hernandez's automobile

    
    

    Count III

    
    

18. On or about August 15, 1994, Jacquetta Jackson provided Respondent with a down payment for insurance that Respondent was to obtain for an automobile that Jackson owned.

    
    

19. The application for such insurance coverage was bound on or about that same day.

    
    

20. Respondent submitted the application (on an outdated form) to Bankers Insurance Company (as a member of the Florida Automobile Joint Underwriting Association) on or about November 14, 1994. The application was accompanied by a "sight-draft" from a premium finance company in an amount less than the gross premium that was due for the requested insurance coverage.

    
    

21. Rule 2B of the Rules of General Practice of the Florida Automobile Joint Underwriting Association provides that premiums are to be submitted to the insurer on a gross remittance basis within one business day after the application for coverage is bound.

    
    

22. Respondent failed to comply with the requirements of Rule 2B in her efforts to obtain automobile insurance for Jackson.

    
    

23. By letters dated November 14, 1994, and December 20, 1994, Bankers Insurance Company notified Respondent that it had rejected the application she had submitted on behalf of Jackson because the application had been submitted on an outdated form and had not been submitted in accordance with the requirements of Rule 2B.

    
    

24. It was not until January 18, 1995, that Respondent submitted another application to Bankers Insurance Company on behalf of Jackson. 4/

25. The insurance that Jackson had requested was finally obtained on February 28, 1995 (from Fortune Insurance Company by another insurance agent to whom Respondent had transferred the matter).

    
    

26. Respondent never advised Jackson, during the period that Jackson was without coverage (from on or about August 15, 1994, to February 28, 1995), that the requested insurance had not been obtained.

    
    

    Count IV

    
    

27. On or about September 26, 1994, Roderick Cole provided Respondent with a down payment for insurance that Respondent was to obtain for an automobile that Cole owned.

    
    

28. The application for such insurance coverage was bound on or about that same day.

    
    

29. Respondent submitted the application (on an outdated form) to Bankers Insurance Company (as a member of the Florida Automobile Joint Underwriting Association) on or about November 14, 1994. The application was accompanied by a "sight-draft" from a premium finance company in an amount less than the gross premium that was due for the requested insurance coverage.

    
    

30. Respondent failed to comply with the requirements of Rule 2B in her efforts to obtain automobile insurance for Cole.

    
    

31. Bankers Insurance Company subsequently notified Respondent by letter that it had rejected the application she had submitted on behalf of Cole because the application had been submitted on an outdated form and had not been submitted in accordance with the requirements of Rule 2B.

    
    

32. It was not until January 18, 1995, that Respondent submitted another application on behalf of Cole.

    
    

33. The insurance that Cole had requested was finally obtained on March 7, 1995 (from Fortune Insurance Company by another insurance agent to whom Respondent had transferred the matter).

    
    

34. Respondent never advised Cole, during the period that Cole was without coverage (from on or about September 26, 1994, to March 7, 1995), that the requested insurance had not been obtained.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Administrative Complaint issued against Respondent in the instant case alleges violations of Sections 626.561(1), 626.611(7), 626.611(8), 626.611(10), 626.611(13), 626.621(2), and 626.621(6), Florida Statutes.

    
    

36. At all times material to the instant case, Section 626.561(1), Florida Statutes, has provided as follows:

    
    

    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. An agent shall keep the funds belonging to each

    insurer for which he is not appointed, other than a surplus lines insurer, in a separate

    account so as to allow the department [Petitioner] to properly audit such funds. 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.

    
    

37. At all times material to the instant case, Section 626.611, Florida Statutes, has provided, in pertinent part, as follows:

    
    

    The department [Petitioner] shall . . . suspend, revoke . . . the license . . of any . . . agent

    . . ., and it shall suspend or revoke the eligi- bility to hold a license . . . of any such person, if it finds that as to the . . . licensee . . . any one or more of following applicable grounds exist: . . .

    1. Demonstrated lack of fitness or trustworth- iness to engage in the business of insurance.

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

       (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

       . . . .

       (13) Willful failure to comply with, or willful violation of, any proper order or rule of the department [Petitioner] or willful violation of any provision of this code.

       
       

       If an agent is found guilty of any of these violations, revocation or suspension is "mandatory as a matter of law." Dyer v. Department of Insurance and Treasurer, 585 So.2d 1009, 1015 (Fla. 1st DCA 1991). Pursuant to Section 626.641(1), Florida Statutes, if a suspension is imposed, the period of the suspension "shall not exceed 2 years."

       
       

38. At all times material to the instant case, Section 626.621, Florida Statutes, has provided, in pertinent part, as follows:

    
    

    The department [Petitioner] may, in its discretion

    . . . suspend, revoke, . . . the license . . of any . . . agent . . . , and it may suspend or revoke the eligibility to hold a license . . .

    of any such person, if it finds that as to the

    . . . licensee . . . any one or more of the following applicable grounds exist under circum- stances for which such . . . suspension, revoca- tion, . . . is not mandatory under s. 626.611:

    . . .

    (2) Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license. . . .

    (6) In the conduct of business under the

    license . . . , 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. 5/

    
    

    Sections 626.681 6/ and 626.691, 7/ Florida Statutes, authorize Petitioner, in lieu of discretionary suspension or revocation of the agent's license, to instead impose an administrative fine (Section 626.681) and/or place the agent on probation (Section 626.691).

    
    

39. The foregoing statutory provisions are "in effect, . . . penal statute[s] . . . This being true the[y] must be strictly construed and no conduct is to be regarded as included within [them] that is not reasonably proscribed by [them]. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977); see also Whitaker v. Department of Insurance and Treasurer, 21 FLW D1353, D1354 (Fla. 1st DCA June 13, 1996)("[b]ecause the statute [Section 626.954(1)(x)4, Florida Statutes] is penal in nature, it must be strictly construed with any doubt resolved in favor of the licensee").

    
    

40. An agent's license may be suspended or revoked based upon the foregoing statutory provisions only if the grounds for suspension or revocation are established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); McKinney v. Castor, 667 So.2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v. Castor, 640 So.2d 164, 167 (Fla. 1st DCA 1994); Nair v. Department of Business and Professional Regulation, 654 So.2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement,

    585 So.2d 500 (Fla. 3d DCA 1991); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988); Section 120.57(1)(h), Fla. Stat. (Supp. 1996)("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute"). "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So.2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

41. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129,

    133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

42. Count I of the Administrative Complaint issued against Respondent in the instant case alleges that Respondent engaged in conduct violative of Sections 626.561(1), 626.611(7), 626.611(10), 626.611(13), and 626.621(2), Florida Statutes, in connection with her handling of the responsibility she had undertaken to obtain workers' compensation insurance for Joseph Ha. This count

    of the Administrative Complaint is supported by clear and convincing record evidence of Respondent's guilt of the alleged violations.

    
    

43. Count II of the Administrative Complaint alleges that Respondent engaged in conduct violative of Sections 626.561(1), 626.611(7), 626.611(10), 626.611(13), 626.621(2), and 626.621(6), Florida Statutes, in connection with her handling of the responsibility she had undertaken to obtain automobile insurance for Gloria Hernandez. This count of the Administrative Complaint is supported by clear and convincing record evidence of Respondent's guilt of the alleged violations, except to the extent that it alleges a violation of Section 626.611(13), Florida Statutes.

    
    

44. Count III of the Administrative Complaint alleges that Respondent engaged in conduct violative of Sections 626.561(1), 626.611(7), 626.611(10), 626.611(13), and 626.621(2), Florida Statutes, in connection with her handling of the responsibility she had undertaken to obtain automobile insurance for Jacquetta Jackson. This count of the Administrative Complaint is supported by clear and convincing record evidence of Respondent's guilt of the alleged violations, except to the extent that it alleges a violation of Section 626.611(13), Florida Statutes.

    
    

45. Count IV of the Administrative Complaint alleges that Respondent engaged in conduct violative of Sections 626.561(1), 626.611(7), 626.611(8), 626.611(10), 626.611(13), and 626.621(2), Florida Statutes, in connection with her handling of the responsibility she had undertaken to obtain automobile insurance for Roderick Cole. This count of the Administrative Complaint is supported by clear and convincing record evidence of Respondent's guilt of the alleged violations, except to the extent that it alleges a violation of Section 626.611(13), Florida Statutes.

    
    

46. Where, as in the instant case, "one has violated [both] [S]ection 626.611 and 626.621, [Florida Statutes, S]ection 626.611 governs the penalty to be imposed." Dyer v. Department of Insurance and Treasurer, 585 So.2d at 1014. The penalty, however, should be "based upon the number and severity of all offenses of which the licensee has been found guilty." Id.

    
    

47. In determining the particular penalty Petitioner should select, it is necessary to consult Chapter 4-231, Florida Administrative Code, which contains the Department's "penalty guidelines." Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

48. Rule 4-231.040, Florida Administrative Code, describes how the "final penalty" should be "calculated." It provides as follows:

    
    

    1. Penalty Per Count.

       1. The Department [Petitioner] is authorized to find that multiple grounds exist under [S]ections 626.611 and 626.621, Florida Statutes, for disciplinary action against the licensee based upon a single count in an administrative complaint based

          upon a single act of misconduct by a licensee. However, for the purpose of this rule chapter, only the violation specifying the highest stated penalty will be considered for that

          count. The highest stated penalty thus established for each count is referred to as the "penalty per count."

       2. The requirement for a single highest stated penalty for each count in an adminis- trative complaint shall be applicable regardless of the number or nature of the violations established in a single count of an admin- istrative complaint.

    2. Total Penalty. Each penalty per count shall be added together and the sum shall be referred to as the "total penalty."

    3. Final Penalty. The final penalty which will be imposed against a licensee under these rules shall be the total penalty, as adjusted to take into consideration any aggravating or mitigating factors, provided however the Department [Petitioner] shall convert the total penalty to an administrative fine and probation in the absence of a violation of [S]ection 626.611, Florida Statutes, if war- ranted upon the Department's [Petitioner's] consideration of the factors set forth in [R]ule subsection 4-231.160(1).

    
    

49. The "stated penalties" for violations of Section 626.611, Florida Statutes, are set forth in Rule 4-231.080, Florida Administrative Code. They include, in pertinent part, the following:

    
    

    1. s.626.611(7), F.S.- suspension 6 months

    2. s.626.611(8), F.S.- suspension 6 months

    (10) s.626.611(10), F.S.- suspension 9 months

    (13) s.626.611(13), F.S.- suspension 6 months

    
    

50. The "stated penalties" for violations of Section 626.621, Florida Statutes, are set forth in Rule 4-231.090, Florida Administrative Code. They include, in pertinent part, the following:

    
    

    1. s.626.621(2), F.S.- suspension 3 months

       (6) s.626.621(6), F.S.- suspension 6 months

       
       

51. The "stated penalty" for a violation of Section 626.561(1), Florida Statutes, is set forth in subsection (9) of Rule 4-231.110, Florida Administrative Code. It is a "suspension [of] 9 months."

    
    

52. Rule 4-231.160, Florida Administrative Code, addresses the subject of aggravating and mitigating circumstances. It provides, in pertinent part, as follows:

    
    

    The Department [Petitioner] shall consider the following aggravating and mitigating factors and apply them to the total penalty

    in reaching the final penalty assessed against a licensee under this rule chapter. After consideration and application of these factors, the Department [Petitioner] shall, if warranted by the Department's [Petitioner's] consider-

    ation of the factors, either decrease or increase the penalty to any penalty authorized by law.

    1. For penalties other than those assessed under [R]ule 4-231.150: 8/

       1. willfulness of licensee's conduct;

       2. degree of actual injury to victim;

       3. degree of potential injury to victim;

       4. timely restitution;

    1. motivation of agent;

    2. financial gain or loss to agent;

    3. cooperation with the Department [Petitioner];

    4. vicarious or personal responsibility;

    5. related criminal charge; disposition;

    6. existence of secondary violations in counts;

    7. previous disciplinary orders or prior warning by the Department [Petitioner]; and

    8. other relevant factors.

    
    

53. In the instant case, Respondent has been found guilty, at least in part, of Counts I through IV of the Administrative Complaint. The "penalty per count" for each of these four counts is a nine month suspension. The "total penalty" therefore is a 36 month (or three year) suspension, which is the equivalent of revocation inasmuch as a suspension, pursuant to Section 626.641(1), Florida Statutes, may "not exceed 2 years."

    
    

54. Having carefully considered the facts of the instant case in light of the factors listed in Rule 4-231.160, Florida Administrative Code, the undersigned finds that there are insufficient "mitigating circumstances" present in the instant case, when compared to the "aggravating circumstances" present, to warrant a reduction in the "total penalty."

    
    

55. Accordingly, the penalty that Petitioner should impose upon Respondent in the instant case, i.e., the "final penalty," is revocation of Respondent's license. 9/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Petitioner enter a final order: (1) finding Respondent guilty of the violations noted in the Conclusions of Law of this Recommended Order; (2) penalizing Respondent for having committed these violations by revoking her license; and (3) dismissing the remaining allegations of misconduct advanced in the Administrative Complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of December, 1996.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1996.

ENDNOTES

1/ Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned (and of all other Hearing Officers of the Division of Administrative Hearings) was changed to Administrative Law Judge, effective October 1, 1996.

2/ Although Respondent did not timely respond to any of Petitioner's requests for admissions, she indicated, on the record at hearing, that she did not dispute the matters asserted in any of Petitioner's requests for admissions (as modified) other than requests 4 and 17.

3/ Ha also asked Respondent to obtain liability insurance for his business. Respondent ultimately procured the liability insurance Ha had requested.

4/ A week earlier, on January 11, 1995, the General Manager of the Florida Automobile Joint Underwriting Association had sent the following letter to Respondent:

It has been brought to my attention by Bankers Insurance Company, your servicing carrier, that you are in violation [of] your Producers Contract and Plan of Operation of the FAJUA because you are not remitting funds in accordance with the JUA rules. On June 20, 1994 Bankers advised you of the requirement to send the gross remittance with original applications. You have failed to comply with that request as evidenced by the application submitted in December [sic] for Jacqu[e]tta Jackson.

Additionally Bankers advises that you continue to ignore their requests to submit applications and payments in accordance with your Producer's Contract and the FAJUA Plan of Operation. You have also failed to [r]espond to their request to satisfy an old commissions due balance.

This letter constitutes notice that your assignment to Bankers Insurance Company as your FAJUA servicing carrier is terminated upon its receipt. You are no longer authorized to solicit, accept, or submit applications for or to the FAJUA or any of its servicing carriers. All books, manuals, supplies and forms should be returned to Bankers at their St. Petersburg address.

5/ The First District Court of Appeal has held "that the language following the last 'or' in [S]ection 626.621(6), Florida Statutes (Supp. 1992)['detrimental to the public interest'] offends due process" because it is "too vague to

constitute notice of what acts it purports to prohibit." Whitaker v. Department of Insurance and Treasurer, 21 FLW D1353, D1354 (Fla. 1st DCA June 13, 1996).

6/ At all times material to the instant case, Section 626.681, Florida Statutes, has provided, in pertinent part, as follows:

(1)[I]f the department [Petitioner] finds that one or more grounds exist for the suspension, revocation, . . . [of] any license . . . issued under this chapter, the department [Petitioner] may, in its discretion, in lieu of such suspension, revocation, . . . , and except on a second offense or when such suspension, revocation . . . is mandatory, impose upon the licensee . . . an administrative penalty in an amount up to $500 . . . . The administrative penalty may, in the discretion of the department [Petitioner], be augmented by an amount equal to any commissions received by or accruing to the credit of the licensee . . . in connection with any transaction as to which the grounds for suspension, revocation . . . related. . . .

1. The department [Petitioner] may allow the licensee . . . a reasonable period, not to exceed 30 days, within which to pay to the department the amount of the penalty so imposed. If the licensee . . . fails to pay the penalty in its entirety to the department [Petitioner] within the period so allowed, the license . . . of the licensee shall stand suspended or revoked, . . . , as the case may be, upon expiration of such period.

7/ At all times material to the instant case, Section 626.691, Florida Statutes, has provided, in pertinent part, as follows:

1. If the department [Petitioner] finds that one or more grounds exist for the suspension, revocation . . . [of] any license . . . issued under this part, the department [Petitioner] may, in its discretion, except when an administrative fine is not permissible under s.626.681 or when such suspension, revocation . . . is mandatory, in lieu of such suspension, revocation, ,

   or in connection with any administrative monetary penalty imposed under s.626.681, place the offending licensee . . . on probation for a period, not to exceed 2 years, as specified by the department [Petitioner] in its order.

2. As a condition to such probation or in connection therewith, the department [Petitioner] may specify in its order reasonable terms and conditions to be fulfilled by the probationer during the probationary period. If during the probationary period, the department [Petitioner] has good cause to believe that the probationer has violated such terms and conditions or any of them, it shall suspend, revoke, . . . the license . . of the probationer, as upon the original ground or grounds referred to in subsection (1).

8/ Rule 4-231.150, Florida Administrative Code, applies where "it is found that a licensee has violated either [S]ection 626.611(14) or 626.621(8)," Florida Statutes.

9/ A licensee whose license is revoked by Petitioner may not "apply for another license . . . under th[e Florida Insurance C]ode within 2 years from the effective date of such revocation or, if judicial review of such revocation is sought, within 2 years from the date of final court order or decree affirming the revocation." Section 626.641(2), Fla. Stat.

COPIES FURNISHED:

Michael H. Davidson, Esquire Department of Insurance

200 East Gaines Street, 612 Larson Building Tallahassee, Florida 32399-0333

Dwetta Janice Hunter

610 Northwest 214th Street Building No. 3, Apt. No. 201

Miami, Florida 33169

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Daniel Y. Sumner, Esquire Acting 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 within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-004604

Orders for Case No: 95-004604