STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNY R. HOWE,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 04-2029

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 12, 2004, by video teleconference between Tampa and Tallahassee, Florida, before Carolyn S. Holifield, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Johnny R. Howe, pro se

4367 Winding Oaks Circle Mulberry, Florida 33860

For Respondent: Ladasiah Jackson, Esquire

Michael T. Ruff, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is eligible for licensure as a resident general lines agent.

PRELIMINARY STATEMENT

By Notice of Denial ("Notice" or "Notice of Denial") dated February 26, 2004, Respondent, the Department of Financial Services ("Department") notified Petitioner, Johnny R. Howe ("Petitioner"), that his application for licensure as a resident general lines agent was denied.

According to the Notice, the denial was based on two factual allegations. First, the Department alleged that in June 1999, the Missouri Department of Insurance filed a

Voluntary Forfeiture against Petitioner because he "demonstrated a lack of trustworthiness by practicing forgery and deception by signing the names of the city finance director and county commission clerk to premium finance documents and letters representing that the city and county had financed [the] premium when, in fact, the city and county had paid the insurance premium in full on an annual basis." For this offense, the Missouri Department of Insurance fined Petitioner $10,000.00.

Second, the Notice alleged that on February 14, 2000, the Indiana Department of Insurance entered a Preliminary Administrative Order and Notice of License Denial for Petitioner's failure to disclose on his application for licensure the prior administrative action taken against him by the Missouri Department of Insurance.

Based on its review of the foregoing information, the Department determined that Petitioner's application for licensure should be denied because he demonstrated a lack of fitness or trustworthiness to engage in the business of insurance; had been involved in or committed fraudulent or dishonest practices in the conduct of business under the license or appointment; and misappropriated, converted, or unlawfully withheld moneys belonging to insurers, insureds, beneficiaries, or to others in the conduct of business under the license or appointment. See § 626.611(7), (9), and (10), Florida Statutes (2003). Petitioner disputed the factual allegations and timely requested a hearing.

On or about June 9, 2004, the Department forwarded the case to the Division of Administrative Hearings (Division) for assignment of an Administrative Law Judge to conduct the final hearing and prepare a recommended order. The case was set for hearing and this proceeding followed.

At the final hearing, Petitioner testified on his own behalf and offered and had one exhibit received into evidence. Petitioner was to file his exhibit with the Division or give it to the court reporter to file with the transcript. However, as of the date of this Recommended Order, the exhibit has not been filed. The Department presented the testimony of one witness, Hazel Muhammad, an assistant bureau chief of the Department's

Bureau of Licensing. Additionally, the Department offered and had seven exhibits received into evidence.

The Transcript of the proceeding was filed on August 30, 2004. The parties' proposed recommended orders were to be filed on September 10, 2004. However, prior to that date, the parties filed a Joint Motion to Extend the Deadline for Proposed Recommended Orders ("Motion"). The Motion was granted, and the time for filing proposed recommend orders was extended. The Department filed its Proposed Recommended Order on September 23, 2004. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. On August 14, 1998, Robert Manns, a representative for Butler County, Missouri, filed a consumer complaint with the Missouri Department of Insurance, which alleged that Petitioner financed a premium for an insurance policy when the premium had, in fact, been paid by the county.

2. On June 9, 1999, Petitioner was assessed a fine of

   
   

   $10,000.00 by the Missouri Department of Insurance based on Petitioner's having practiced forgery and deception in an insurance transaction. Specifically, it was found that Petitioner signed the names of the city finance director and county commission clerk to premium finance documents and letters representing that the city and county had financed a premium when, in fact, the city and county had paid the insurance

   premium for the city and county accounts in full on an annual basis.

3. At the time Petitioner forged the premium finance agreement, he was licensed as an insurance agent in the State of Missouri.

4. The Missouri Department of Insurance did not revoke Petitioner's license as an insurance agent in the State of Missouri.

5. On February 14, 2000, the Indiana Department of Insurance denied Petitioner’s application for licensure based upon the Missouri administrative action.

6. On September 19, 2003, Petitioner applied for licensure as a resident general lines agent in the State of Florida.

7. Based on its review of Petitioner's application and the administrative documents from the Missouri Department of Insurance described in paragraphs 2 above, the Department denied Petitioner’s application.

8. In regard to the incident described in paragraph 2 above, Petitioner denied that he forged the insurance contract, but he admitted that he forged the premium finance agreement associated with the subject insurance contract. However, Petitioner testified that "no one lost money" as a result of his forging the premium finance agreement.

9. Petitioner testified that he was not proud of the incident, that he was very sorry for doing it, and that his actions could not be justified.

10. The Department considers the forgery of documents and deception related to insurance documents and transactions by an insurance agent to be serious matters. This is particularly true in light of the fiduciary role of an insurance agent.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57, Florida Statutes (2003).

12. Petitioner bears the burden of proving his entitlement to the license he seeks. To prevail, Petitioner must show by a preponderance of evidence that at the time of his application, he met all the relevant statutory requirements. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

13. Section 626.611, Florida Statutes (2003), mandates that the Department deny the application for licensure as an agent for any of the grounds specified in that section.

14. The Notice alleges that Petitioner's conduct in the Missouri insurance matter constituted grounds pursuant to Section 626.611, Florida Statutes (2003), for denying

    Petitioner's license as a resident general lines agent. The Notice further alleges, as a basis for denying Petitioner's application, Subsection 626.731(1), Florida Statutes (2003).

15. Section 626.611, Florida Statutes (2003), states, in pertinent part, the following:

    The department or office shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general 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 applicant, licensee, or appointee any one or more of the following applicable grounds exist:

    
    

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    (7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

    
    

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    1. Fraudulent or dishonest practices in the conduct of business under the license or appointment.

       
       

    2. 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 or appointment. . . .

    
    

16. Section 626.731, Florida Statutes (2003), states, in pertinent part, the following:

    1. The department shall not grant or issue a license as a general lines agent to any

       individual found by it to be untrustworthy or incompetent. . . .

       
       

17. The evidence established that Petitioner forged a premium finance agreement associated with an insurance contract when he was licensed to engage in the business of insurance in the State of Missouri. That Petitioner engaged in this conduct is undisputed. In fact, Petitioner admitted that he forged the document.

18. By engaging in the foregoing conduct, Petitioner demonstrated a lack of fitness or trustworthiness to engage in the business of insurance. Moreover, Petitioner's conduct constitutes a fraudulent or dishonest practice in the conduct of business under the license or appointment.

19. The evidence failed to establish that Petitioner misappropriated, converted, or unlawfully withheld moneys belonging to insurers, insureds, beneficiaries, or to others in the conduct of business under license or appointment. Rather, the undisputed evidence is that no one lost money as a result of his forging the premium finance agreement.

20. Petitioner failed to establish that at the time he applied for his license as an insurance agent, he met all the statutory requirements for such licensure.

21. Pursuant to Subsections 626.611(7), (9), and (10), and Section 626.731, Florida Statutes (2003), the conduct engaged in

by Petitioner, as described herein, requires that the Department deny his application for licensure as a resident general lines

agent.

RECOMMENDATION

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

RECOMMENDED that final order be entered denying Petitioner’s application for licensure as a resident general lines insurance agent in the State of Florida.

DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 23rd day of November, 2004.

COPIES FURNISHED:

Johnny R. Howe

4367 Winding Oaks Circle Mulberry, Florida 33860

Michael T. Ruff, Esquire Ladasiah Jackson, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Honorable Tom Gallagher Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 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: 04-002029

Orders for Case No: 04-002029