STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES LEVI ROBERSON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3803

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on December 10, 1996 before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearing, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James Levi Roberson, Pro Se

Post Office Box 943 Brunswick, Georgia 31520

For Respondent: Marc S. Nash, Esq.

Department of Insurance and Treasurer Division of Legal Services

612 Larson Building

Tallahassee, Florida 32399¬0333

STATEMENT OF THE ISSUES

The issue is whether Respondent properly denied Petitioner's application for licensure as a nonresident life and health insurance agent.

PRELIMINARY STATEMENT

By letter dated June 18, 1996 Respondent Department of Insurance and Treasurer (Respondent) denied Petitioner James Levi Roberson's (Petitioner) application for licensure as a nonresident life and health insurance agent. Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, by letter dated July 28, 1996. Respondent referred this matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge on August 13, 1996.

The undersigned issued a Notice of Hearing scheduling this case for formal hearing on December 10, 1996. At the hearing, Petitioner testified on his own behalf and offered one exhibit which was admitted into evidence. Respondent presented no witnesses and offered two exhibits which were admitted into evidence.

A transcript of the hearing was filed with the Division of Administrative Hearings on December 19, 1996. Respondent filed a proposed recommended order on December 26, 1996. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. On or about January 9, 1996, Petitioner went to a testing site in Jacksonville, Florida to take the licensure examination for health insurance agents. He had an appointment card to take the examination at that place and time.

2. When Petitioner completed the examination, he took his paper to one of the test site workers to have it scored. While his examination paper was being graded, another test proctor advised Petitioner that his examination could not be scored because his name was not on the roster.

3. Petitioner inquired how he could find out if he had passed the examination. The test proctor in charge told him to call Respondent’s office in Tallahassee.

4. The following day, Petitioner called Respondent’s office and was told that his test paper could not be graded because he had taken the test the maximum number of times. At that point, Petitioner apologized and offered to pay for taking the examination in question because he had taken it in error.

5. There is no competent evidence to support the following factual allegations: (1) Petitioner offered money to Debra Bell, a test proctor, to say that he had passed the test; (2) After taking the test and failing it, Petitioner asked Ms. Bell to put his score under someone else’s name; and (3) Petitioner discussed this matter with another test proctor, Jewel Armstead, and offered her money if she would help him pass the test.

6. Petitioner applied for a nonresident life and health license on or about March 8, 1996. He has passed the life portion of the examination. He admits that he has not passed the health portion of the examination.

7. Petitioner was licensed as a health agent in Florida in 1970. However, he allowed his license to expire in 1973 when he became a general insurance agent in Georgia.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject and parties to this action pursuant to Section 120.57(1), Florida Statutes.

9. Petitioner has the burden of proving his entitlement to licensure as a nonresident life and health agent. Florida Department of Trans. V. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

10. Section 626.281(2), Florida Statutes, states that Respondent “may require any individual whose license as an agent or adjuster has expired . . . to pass an examination prior to reinstating or relicensing the individual as to any class of license. The examination fee shall be paid as to each examination.”

11. Section 626.231, Florida Statutes, states as follows:

    
    

    No person shall be permitted to take an examination for license until his application for the license has been approved and the required fees have been received by the department . . . .

    
    

12. Section 626.221(1), Florida Statutes, prohibits Respondent from issuing a license to any person “who has not qualified for, taken, and passed to the satisfaction of the department a written examination ”

13. Respondent’s denial letter relies on Sections 626.111(1), 626.111(7) and 626.785(1)(e), Florida Statutes, as grounds for denying Petitioner’s application for licensure as a nonresident life and health agent (type and class 8-18).

14. Section 626.111(1), Florida Statutes, requires Respondent to refuse to license any individual who has not met all qualifications for licensure. Respondent properly relied on this provision in denying Respondent’s application because Petitioner has not passed the examination for a health agent’s license.

15. Section 626.111(7), Florida Statutes, requires Respondent to refuse to license any individual who has “[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance.” Respondent’s reliance on this section was improper because there is no competent evidence to support such a finding.

16. Section 626.785(1)(e), Florida Statutes, states as follows:

    1. The department shall not grant or issue a license as life agent to any individual found by it to be untrustworthy or incompetent, or who does not meet the following qualifications:

* * *

(e) Must take and pass any examination for license required under s. 626.211.

As stated above, there is no evidence to support a finding that Petitioner is untrustworthy or incompetent. However Respondent properly relied on this provision to deny Petitioner’s

application because he has not passed the health portion of the examination for licensure as a nonresident life and health insurance agent (type and class 8-18).

RECOMMENDATION

For the reasons set forth above in the Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order denying Petitioner’s application for licensure as a nonresident life and health insurance agent.

DONE AND ENTERED this 22nd day of January, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 22nd day of January, 1997.

COPIES FURNISHED:

James Levi Roberson Post Office Box 943 Brunswick, GA 31520

James Levi Roberson

303 Old Mill Road Woodstock, GA 30188

Marc S. Nash, Esquire Department of Insurance Division of Legal Services 612 Larson Building

Tallahassee, FL 32399-0333

Bill Nelson, Commissioner Department of Insurance The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Daniel Y. Sumner, Esquire Department of Insurance The Capitol, LL-26

Tallahassee, FL 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: 96-003803

Orders for Case No: 96-003803