2-20-02. "—FILED cane ep MAR 20° 2002 ap eee TREASURER Ano aa PN 12: 39 INSURANCE COM} ‘ Supe te 2) Pale 3 Dooketed by: THE TREASURER OF THE STATE OF. FLORIDA, DEPARTMENT OF INSURANCE: ayn rn Te TOM GALLAGHER oO |- 3334 CL IN THE MATTER OF: 1) BC CLdse dE ROBERT STEVENSON CASE NO: 34564-00-AG er | FINAL ORDER THIS CAUSE came on for consideration and final agency action. On August 2, 2001, an Administrative Complaint was issued by the Department of Insurance against the Respondent, Robert Stevenson, alleging that he had effected the sale of certain annuities to an insured without her knowledge or consent, utilizing what purported to be her signature on various documents. Respondent timely filed a request for a proceeding pursuant to section 120.57(1), Florida Statutes. Pursuant to notice. the matter was heard before Jeff B. Clark, Administrative Law Judge, Division of Administrative Hearings, on December 17, 2001. After consideration of the record and argument presented at hearing, the Administrative Law Judge issued his Recommended Order on February 20, 2002. (Attached as Exhibit A). The Administrative Law Judge recommended that the Respondent be found not guilty of the offenses alleged and that the Administrative Complaint be dismissed. On March 1, 2002, Petitioner timely filed exceptions to the Recommended Order. Petitioner excepted to one Conclusion of Law, and the Recommendation. No responses to the exceptions were filed by the Respondent. Each exception is addressed below. RULINGS ON PETITIONER’S EXCEPTIONS 1. Petitioner excepts to Conclusion of Law #33 in the Administrative Law Judge’s Recommended Order. This Conclusion of Law relates to the Administrative Law Judge’s discussion of the Respondent’s understanding of the terms “owner” and “contingent owner” relative to the PFL annuity policies. The Petitioner points out in its exception that Conclusion of Law #33 is based on Findings of Fact #17-20 of the Recommended Order. The Petitioner, in its exception, disagrees with the Administrative Law Judge’s Conclusion of Law #33 that the Respondent’s “lack of understanding” did not rise to the level of clear and convincing evidence to prove that he lacked reasonably adequate knowledge and technical competence to engage in the transactions authorized by the licenses. The Administrative Law Judge made a series of Findings of Fact (#17-20) discussing the terms “owner” and “contingent owner” and concluded that the term “contingent owner” was not defined in any of the policies placed into evidence, nor were “contingent owners” even contemplated by the said annuity policies. It was also unclear as to the legal effect of including a “continent owner” on the policy application. It appears from the discussion by the Administrative Law Judge that the Respondent’s “lack of understanding” was compounded by the lack of clarity in the annuity policies themselves. To adopt Petitioner's exception would require the Department to improperly reject the Administrative Law Judge’s Findings of Fact. The weight given to the evidence is the province of the Administrative Law Judge and cannot be disturbed by the Department unless the finding is not supported by competent substantial evidence. The Department may not reweigh the evidence. The agency’s authority to reject or modify findings of fact is limited by the provisions in section 120.57(1)(b)10, Florida Statutes. Brogan v. Carter, 671 So.2d 822 (Fla. Ist DCA 1996). When the Administrative Law Judge’s Findings of Fact are supported by competent substantial evidence, the Findings of Fact in the Recommended Order may not be rejected or modified and must be accepted by the agency. Since the Administrative Law Judge concluded, based on his factual findings, that clear and convincing evidence did not exist to find that the Respondent violated Section 626.621(8), Florida Statutes, Conclusion of Law #33 must be upheld. Accordingly, the first exception is rejected. 2. The Petitioner contends that the Respondent’s license should be suspended for a period of six months and that reinstatement of the licenses should be conditioned upon the Respondent retaking and passing examinations for licensure as a life insurance agent and a life and health insurance agent. Since the Petitioner’s exception to Conclusion of Law #33 was rejected for the reasons set forth above, there is no statutory basis remaining on which to discipline the Respondent’s licenses. Therefore, the Petitioner’s exception to the recommendation is also rejected. Upon careful consideration of the record, the submissions of the parties, and being otherwise fully advised in the premises, it is ORDERED: 1. The Findings of Fact of the Administrative Law Judge are adopted in full as the Department’s Findings of Fact. 2. The Conclusions of Law of the Administrative Law Judge are adopted in full as the Department’s Conclusions of Law. . 3. The Administrative Law Judge’s recommendation that the Department enter a Final Order finding Respondent not guilty of the offenses alleged and that the Administrative Complaint be dismissed is approved and accepted as being the appropriate disposition of this case. ACCORDINGLY, it is ORDERED, that the Administrative Complaint, Case No. 34564- 00-AG filed against the Respondent, ROBERT STEVENSON, is hereby dismissed. NOTICE OF RIGHTS Any party to these proceedings adversely affected by this Order is entitled to seek review of the Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla.R.App.P. Review proceedings must be instituted by filing a petition or Notice of Appeal with the General Counsel, acting as the agency clerk, at 200 East Gaines Street, Tallahassee, FL 32399-0333, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of the rendition of this Order. TH DONE and ORDERED this 2O"" day of MARCH __ 2909. ~ . KENNEY SHIPL / Deputy Insurance Commissioner COPIES FURNISHED TO: Robert Stevenson 7943 Sugar Maple Court New Port Richey, FL 34653 Respondent Kim Haikara, Esquire 11350 66th Street, Suite 117 Largo, FL 33773 Attorney for Respondent Honorable Jeff B. Clark Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 David J. Busch, Esquire Division of Legal Services Florida Department of Insurance 200 E. Gaines Street Tallahassee, FL 32399-0333

Docket for Case No: 01-003334PL

Orders for Case No: 01-003334PL