STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-5228

)

CHARLES E. BROWN, JR., )

)

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 March 28, 2000, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Elenita Gomez, Esquire

Department of Insurance Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333 For Respondent: No appearance at hearing.

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 August 17, 1999, Petitioner, Department of Insurance, issued a Final Notice of Non-Compliance which charged that Respondent, a licensed Life and Health Agent, violated the provisions of Section 626.2815, Florida Statutes, by failing to comply with the continuing education requirements for the compliance period ending November 30, 1997.

Respondent filed an election-of-rights wherein he disputed the allegations of fact contained in the Final Notice of Non- Compliance, and requested a formal hearing. Consequently, on December 7, 1999, Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative 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 Exhibits numbered 1-6 were received in evidence. Although duly-noticed, neither Respondent nor anyone on his behalf appeared at hearing, and no evidence was offered on his behalf.

A transcript of the hearing was filed April 17, 2000, and the parties were accorded 10 days from that date to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly-considered.

FINDINGS OF FACT

1. Respondent, Charles E. Brown, Jr., is now and was at all times material hereto licensed by Petitioner, Department of Insurance (Department), as a Life and Health Agent (02-18), and held license number A031614.

2. At all times material hereto, insurance agents licensed in Florida, such as Respondent, have been required to complete continuing education courses every two years, and Respondent was aware of such obligation. 1/ Compliance could be achieved by completing Department-approved seminars, classroom courses, or self-study courses. 2/

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

   28 hours of continuing education courses. With regard to that requirement, the proof demonstrated Respondent failed to complete any hours of continuing education. 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.

   CONCLUSIONS OF LAW

   
   

4. 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.

5. 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. See Department of Banking and Finance v. Osborne Stern and Co.,

   670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292

   
   

   (Fla. 1987); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence except in penal or license disciplinary proceedings or except as otherwise provided by statute").

6. "'[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).

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.

   * * *

   (f) Compliance with continuing education requirements is a condition precedent to the issuance, continuation, reinstatement, or renewal of any appointment subject to 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 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 his 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 his continuing education requirements, but that he 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,

    there being no explanation to support a different conclusion,

    Respondent's failure to timely complete his continuing education requirements has been shown to partake of an intentional, as opposed to a careless, thoughtless, or heedless act.

    Consequently, Respondent's failing has been shown to constitute a violation of Section 626.611(13), Florida Statutes, as opposed to a violation of the provisions of Section 626.621 (2) and (3), Florida Statutes.

12. Having resolved that Respondent violated the provisions of Section 626.611(13), 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 six 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 4-231.080, 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 license for a period of six months.

DONE AND ENTERED this 28th day of April, 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 28th day of April, 2000.

ENDNOTES

1/ Such conclusion is supported by the evidence which reveals that at least three times a year the Department publishes a newsletter, known as The Intercom, which is mailed to every licensed agent and which has routinely (since the Spring 1991 edition) included articles concerning continuing education requirements. Moreover, since 1993, all licensed agents have been mailed written notice, six months prior to the closure of their current compliance period, which reminds them of their continuing education requirement and details the courses the Department's records reflect have been completed to date. More fundamentally, each licensee is charged with knowing the practice act that governs their license. Wallen v. Florida Department of Professional Regulation, Division of Real Estate, 568 So. 2d 975 (Fla. 3d DCA 1990).

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.

COPIES FURNISHED:

Elenita Gomez, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

Charles E. Brown, Jr. 17211 Northwest 47th Court

Opa Locka, Florida 33055-4204

Honorable Bill Nelson

State Treasurer and Insurance Commissioner Department of Insurance

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: 99-005228

Orders for Case No: 99-005228