STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-4146

)

BEVERLY B. KENNEDY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings. by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on January 26, 2000, by video teleconference, with sites in Tallahassee and Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Charles L. Gowland, Jr., Esquire

Jeffrey Joseph, Esquire Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Beverly B. Kennedy, pro se

3240 Seward Drive

Pompano Beach, Florida 33062 STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offense alleged in the Final Notice of Non-Compliance and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

On June 29, 1999, Petitioner, Department of Insurance, issued a Final Notice of Non-Compliance which charged that Respondent, a licensed life, variable annuity and health insurance agent, violated the provisions of Section 626.2815, Florida Statutes, by failing to comply with the continuing education requirements for the compliance period ending September 30, 1997.

Respondent filed an election-of-rights wherein she disputed the allegations of fact contained in the Final Notice of Non- Compliance and "ask[ed] for an exception to the rule." Consequently, on September 29, 1999, Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administration law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called Shirley Kerns as a witness, and Petitioner's Composite Exhibit 1 was received into evidence. At Petitioner's request, official recognition was taken of Section 626.2815, Florida Statutes, and Chapter 4-228, Florida Administrative Code. Respondent testified on her own behalf, and Respondent's Exhibits A-E were received into evidence.

A transcript of the hearing was filed February 22, 2000, and the parties were accorded 10 days from that date to file

proposed recommended orders. 1/ Petitioner elected to file such a proposal and it has been duly-considered. Respondent's submittal of January 26, 2000, has likewise been considered.

FINDINGS OF FACT

1. Respondent, Beverly B. Kennedy, is now and was at all times material hereto licensed by Petitioner, Department of Insurance (Department) as a Life and Variable Annuity Agent (2-14), Life, Health and Variable Annuity Agent (2-15), Life Agent (2-16), and Life and Health Agent (2-18).

2. At all times material hereto, insurance agents licensed in Florida have been required to complete continuing education courses every two years, and Respondent was aware of such obligation. Compliance can be achieved by completing Department-approved seminars, classroom courses, or self-study courses.

3. During the compliance period of October 1, 1995, through September 30, 1997, Respondent was required to complete

   28 hours of continuing education courses. With regard to that requirement, the proof demonstrated Respondent completed 2 hours of approved study (on or about March 5, 1997) and began an approved self-study course for an additional 28 hours on

   March 12, 1997, but failed to complete the self-study course (by having successfully completed a monitored examination 2/ ) until February 25, 1998. Consequently, the proof supports the

   conclusion that Respondent failed to timely complete the 28 hours of continuing education required for the compliance period at issue.

4. At hearing, Respondent averred she should be excused from timely compliance with the continuing education requirements because, during the two-year compliance period, she was otherwise preoccupied with hosting a daily (two-hour) radio and television show, and in 1996 ran, albeit unsuccessfully, for United States Congress. 3/ Respondent failed, however, to apply for an extension of time to complete her continuing education requirement, and failed to demonstrate that her preoccupation with other matters made it impracticable or impossible, as opposed to an inconvenience, for Respondent to timely meet the continuing education requirements. 4/

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

6. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of

   Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932

   (Fla. 1996). "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." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the charging document (here the Final Notice of Non- Compliance). See Kinney v. Department of State, 501 So. 2d 129

   (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in

   determining whether Respondent violated the provisions of Sections 626.611 or 626.621, Florida Statutes, as alleged in the Final Notice of Non-Compliance, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational

   Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

   
   

7. Section 626.2815, Florida Statutes, establishes the requirements and standards for continuing education courses for persons, such as Respondent, who are licensed to solicit or sell

   insurance in the state. Pertinent to this case, Section 626.2815, Florida Statutes, provides as follows:

   (3)(a) Each person subject to the provisions of this section must . . . complete a minimum of 28 hours of continuing education courses every 2 years in basic or higher-level courses prescribed by this section or in other courses approved by the department.

   
   

   * * *

   
   

   1. Compliance with continuing education requirements is a condition precedent to the issuance, continuation, reinstatement, or renewal of any appointment subject to this section.

   2. . . . Any person who is an official of or employed by any governmental entity in this state and serves as a professor, instructor, or in any other position or office the duties and responsibilities of which are determined by the department to require monitoring and review of insurance laws or insurance regulations and practices shall be exempt from this section.

      
      

      Such requirements and standards for continuing education course are also codified at, and implemented by, Chapter 4-228, Florida Administrative Code.

8. Here, the Department contends Respondent's failure to comply with the continuing education requirements of Subsection 626.2815(3)(a), Florida Statutes, violated the provisions of Subsection 626.611(13) or Subsection 626.621 (2) and (3), Florida Statutes. Pertinent to this case, Section 626.611, Florida Statutes, provides:

   . . . The department shall suspend [or] revoke . . . the license . . . of any . . . agent . . . and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the . . . licensee, or appointee any one or more of the following applicable grounds exist:

   
   

   * * *

   
   

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

   
   

   Also pertinent to this case, Section 626.621, Florida Statutes, provides:

   . . . The department may, in its discretion . . . suspend [or] revoke . . . the license or appointment of any . . . agent . . . and it may suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the . . . licensee, or appointee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611:

   
   

   * * *

   
   

   1. Violation of any provision of this code. . . .

   2. Violation of any . . . rule of the department.

   
   

9. Here, the proof demonstrates with the requisite degree of certainty that Respondent was not exempt from 5/ and failed to comply with the continuing education requirements prescribed by Section 626.2815, Florida Statutes, and Chapter 4-228,

   Florida Administrative Code. What remains to resolve is whether Respondent's failure to comply with the continuing education requirements may be reasonably characterized as "willful," so as to require disciplinary action under the provisions of Section 626.611, Florida Statutes, or whether her failure was more passive in character, so as to trigger the discretionary provisions of Section 626.621, Florida Statutes. To reach a resolution of the issue, it is necessary to resolve what the legislature intended by the word "willful," as it used that word in the provisions of Section 626.611(13), Florida Statutes.

10. Where, as here, the legislature has not defined the words used in a phrase, the language should usually be given its plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984). The American Heritage Dictionary of the English

    Language, New College Edition (1979) defines "willful" as "[s]aid or done in accordance with one's will; deliberate." Perhaps more informative to the instant case, Black's Law Dictionary, Fifth Edition (1979) defines "willful" as follows:

    Proceeding from a conscious motion of the will; voluntary. Intending the result which

    
    

    actually comes to pass; designed; intentional; not accidental or involuntary.

    An act or omission is "willfully" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail

    to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.

    Willful is a word of many meanings, its construction often influenced by its context. Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495.

    The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal context it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful or conduct marked by a careless disregard whether or not one has the right so to act. United States v. Murdock, 290 U.S. 389, 394, 395, 54 S.Ct. 223, 225, 78

    L.Ed. 381.

    Whatever the grade of the offense the presence of the word "willful" in the definition will carry with it the implication that for guilt the act must have been done willingly rather than under compulsion and, if something is required to be done by statute, the implication that a punishable omission must be by one having the ability and means to perform. In re Trombley, 31 Cal.2d 801, 807, 193 P2d 734,

    739.

    A willful act may be described as one intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently. A willful act differs essentially from a negligent act.

    The one is positive and the other negative.

    Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification.

11. Applying to the words used in Section 626.611(13), Florida Statutes, their usual and natural meaning, it is apparent that, to establish a violation of that subsection in this case, the Department must show not only that the licensee failed to timely complete her continuing education requirements, but that she did so "intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from . . . carelessly, thoughtlessly, heedlessly, or inadvertently." Black's Law Dictionary, Fifth Edition (1979), supra. Here, while Respondent's tendered explanations for having failed to timely complete her continuing education requirement do not provide a justifiable excuse, her failing (given the timely start of the course but, albeit, untimely completion) partakes more of a careless, thoughtless, or heedless act than one done with bad motive or spite. Consequently, Respondent's failing has not been shown to constitute a violation of Section 626.611(13), Florida Statutes, but has been shown to have violated the provisions of Section 626.621 (2) and (3), Florida Statutes.

12. Having resolved that Respondent violated the provisions of Section 626.621 (2) and (3), Florida Statutes, by having failed to timely complete the continuing education requirements mandated by Section 626.2815, Florida Statutes, and

    Chapter 4-228, Florida Administrative Code, it remains to resolve the appropriate penalty that should be imposed.

13. For the violation shown, the Department proposes that Respondent's licensure be suspended for a period of three months. Such penalty is within the permissible range established by Section 626.621, Florida Statutes, and is consistent with the penalty guidelines established by Rule 4- 231.090, Florida Administrative Code, giving due consideration to the aggravating and mitigating factors established by Rule 4- 231.160, Florida Administrative Code. Gadsden State Bank v. Lewis, 348 So. 2d 343 (Fla. 1st DCA 1977)(Agencies must honor their own substantive rules until they are amended or abrogated.) and Williams v. Department of Transportation, 531 So. 2d 994 (Fla. 1st DCA 1988) (Agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees.) Consequently, there being no apparent reason to deviate from the Department's recommendation, its proposed penalty is accepted as appropriate. Walker v. Department of Business and Professional Regulation, 23 Fla. L.

Weekly D292 (Fla. 5th DCA 1998)(Penalty imposed was within agency's statutory authority and would not be disturbed.)

RECOMMENDATION

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

RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, suspends Respondent's insurance licenses for a period of three months.

DONE AND ENTERED this 13th day of March, 2000, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2000.

ENDNOTES

1/ Attached to the transcript of hearing are numerous documents Respondent apparently provided to the court reporter at or following the conclusion of the hearing. Those documents were not identified or received into evidence.

2/ If an insurance agent chooses a self-study course to fulfill the continuing education requirements, the course is not considered complete until the agent has taken a monitored examination on the course materials and achieved a grade of at least 70 percent. Rule 4-228.080(10)(b), Florida Administrative Code. Here, Respondent apparently began the course on March 12, 1997, but did not take and pass the examination until February 25, 1998, which was approximately 5 months past the close of her compliance period.

3/ At hearing, Respondent also averred that, based on her "vast" experience in the insurance industry, she should be exempt from the continuing education requirement. For reasons appearing more fully in the Conclusions of Law, Respondent's contention (or claim for exemption) is rejected. Respondent also averred she was not aware she would not receive credit for the course until she successfully passed an examination. (Respondent's Exhibit C, page 11.) Such contention is improbable and otherwise unworthy of belief.

4/ Subsection 626.2815(3)(i), Florida Statutes, provides that an extension of time during which the continuing education requirements may be completed can be granted under the following circumstances.

1. For good cause shown, the department may grant an extension of time during which the requirements imposed by this section may be completed, but such extension of time may not exceed 1 year.

   
   

   Rule 4-228.230, Florida Administrative Code, addresses extensions of time to complete the minimum continuing education requirements as follows:

   
   

   1. The Department will grant an extension of time of 90 days to complete the minimum continuing education requirement to an individual upon a showing of good cause. "Good cause" means an incident or occurrence which is beyond the control of the applicant and which prevents compliance. Example of good cause include: Disabling accident, illness, call to military duty, or declared national emergency. It is the licensee's responsibility to request an extension on Form DI4-460, "Request for Extension of Time," rev. 3/93, which is hereby adopted and incorporated by reference. The person's license and appointments shall remain in effect during the extension period.

   2. Requests for extensions should be submitted to the Department in writing at least 30 days prior to the applicable compliance date and shall include an explanation together with reasonable

      verification of the hardship as determined by the Department.

   3. When an extension is granted, a new compliance date is temporarily created for that compliance period only. . . .

Here, Respondent did not timely request or demonstrate an entitlement to an extension of time to complete her continuing education requirements for the compliance period at issue.

5/ Respondent never claimed, and certainly offered no proof to demonstrate, that she qualified for the exemption provided by Section 626.2815(3)(g), Florida Statutes. Rather, it was Respondent's position that because of her "vast" experience in the insurance industry she should be exempted from the continuing education requirements mandated by Section 626.2815, Florida Statutes. The agency is, however, without the discretion or authority to accord Respondent an exemption not created by the legislature. Florida Legal Services, Inc. v.

State, Department of Labor and Employment Security, 381 So. 2d 1120, 1122 (Fla. 1st DCA 1979)("Where the legislature creates specific exceptions to the language in a statute, we may apply the rule [of expressio unius est exclusio alterius] to infer that 'had the legislature intended to establish other exceptions it would have done so clearly and unequivocally.'"). See also Moonlit Waters Apartments v. Cauley, 666 So. 2d 898, 900 (Fla.

1996)("Under the principle of statutory construction, expressio unius est exclusion alterius, the mention of one thing implies the exclusion of another."); Sun Coast International, Inc. v.

Department of Business Regulation, 596 So. 2d 1118, 1121 (Fla. 1st DCA 1991)("[A] legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way."); Schiffman v. Department of Professional Regulation, Board of Pharmacy, 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991)("An administrative agency has only the authority that the legislature has conferred it by statute.").

COPIES FURNISHED:

Charles L. Gowland, Jr., Esquire Department of Insurance

Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Beverly B. Kennedy 3240 Seward Drive

Pompano Beach, Florida 33062

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 99-004146

Orders for Case No: 99-004146