STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1539

)

JOSEPH HENTON PELT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 9 September 1981 at Lake City, Florida.

APPEARANCES

For Petitioner: David A. Yon, Esquire

Room 428-A, Larson Building Tallahassee, Florida 32301

For Respondent: Stephen E. Witt, Esquire

Post Office Box 2064

Lake City, Florida 32055

By Administrative Complaint dated 19 March 1981 the Florida Department of Insurance, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Joseph Henton Pelt as an insurance agent. As grounds therefor it is alleged that, while his license was suspended, Respondent engaged in insurance activities involving clients Marie A. Kahler, Mr. and Mrs. Musto R. Bronson, Mildred L. Dupree, Avie Bryant, John Morris and Ono B. Coons.

At the hearing Petitioner called three witnesses and 13 exhibits were offered into evidence. Ruling on Respondent's objection to Exhibit 5,the deposition of One B. Coons, on grounds that the evidence was cumulative and the witness was not one hundred miles from the site of the hearing, was reserved at the hearing. That exhibit is now admitted into evidence. Count VI alleges the sale of insurance to Ms. Coons and Exhibit 5 is the only evidence presented that such a transaction or transactions occurred. Although Ms. Coons was less than one hundred miles from the site of the hearing, she is an 85-year-old permanent resident at the Penny Farms Retirement Community Clinic (Exhibit 6) and is confined to a wheelchair. I find the witness fits into the category described in Rule 1.330(a)(3)(C) , Florida Rules of Civil Procedure, as unable to attend by reason of age, illness and infirmity.

At the conclusion of its case Petitioner voluntarily dismissed Counts I and III since the witnesses who had been subpoenaed to testify regarding those counts had not appeared. Respondent then moved for a directed verdict. When that motion was denied Respondent rested.

FINDINGS OF FACT

1. Joseph Henton Pelt is qualified as an Ordinary Combination Life, including disability insurance (2-10) and a Disability Insurance Agent (2-40). From 1978 until March 15, 1980 he was licensed by the Florida Insurance Department.

   
   

2. In 1979 an Administrative Complaint (Exhibit 2) was filed against Pelt charging numerous violations of Chapter 626, Florida Statutes. A Consent Agreement (Exhibit 3) was entered into between Pelt and the department and, pursuant to that Consent Agreement, the Commissioner of Insurance by Order entered 15 March 1980 (Exhibit 4) suspended Pelt's license for a period of one year from the date of that Order. Paragraph five of Exhibit 4 provided that Respondent shall not, during the period of suspension, engage, directly or indirectly, in any insurance activities in the State of Florida which require a license issued by the department.

   
   

3. On June 27, 1980 Respondent called upon Mr. and Mrs. Bronson, who had responded to an advertisement purporting to make insurance policies more beneficial. After discussing the policies Respondent completed the application forms (Exhibits 7 and 8) which Bronson signed, and collected the premium on these policies (Exhibit 9) in the amount of $224.80.

   
   

4. On June 24, 1980 Respondent called on Mr. and Mrs. Bryant to discuss insurance. Woodrow Bryant signed an application for insurance and Avie Bryant signed two such applications (Exhibit 11), all filled out by Respondent. They gave Respondent a check for the premiums in the amount of $332.80. These applications were accepted July 9, 1980.

   
   

5. On July 1, 1980 Respondent sold a medical insurance policy to John Morris (Exhibit 12) . The application form was completed by Respondent and signed by Morris. The premium payment in the amount of $120.36 was paid by Pinkie Stephens (Morris' wife) to Respondent. The receipt for this $120.36 was signed by William Giles as were all of the other applications. Some checks were endorsed "William Giles Insurance Agency."

   
   

6. On August 15, 1980 Respondent met with Ono B. Coons to discuss insurance matters. She was interested in a policy providing for custodial care which Respondent told her could be provided. Respondent prepared applications for three policies subsequently issued by Union Fidelity Life Insurance Company and Ms. Coons gave him a check payable to Union Fidelity Life Insurance Co. in the amount of $679.75. Upon arrival the policies did not cover custodial care. This check was endorsed "Union Fidelity Life Ins. Co." followed by "William Giles" and "Joe H. Pelt" and deposited in Columbia County Bank, Lake City, Florida.

   
   

7. Respondent was also charged with having signed William Giles' name on Ms. Coons' applications but no evidence was presented that the signature on those documents was that of Giles. It is noted that Giles' name is signed to all applications admitted into evidence, but only on the applications for Ms. Coons was Respondent charged with placing Giles' signature on the applications without Giles' knowledge or consent.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. By visiting clients in June, July and August 1980 for the purpose of discussing insurance Respondent held himself out to be an insurance agent during a period when he was not licensed. This is a violation of Section 626.112, Florida Statutes, which is made grounds for revocation of license by Section

   626.131. Section 626.611, Florida Statutes, includes among the grounds for compulsory revocation or suspension of a license:

   
   

   (13) Willful failure to comply with,

   or willful violation of, any proper order, rule, or regulation of the department or willful violation of any provisions of this code.

   
   

   By continuing to sell policies of insurance and soliciting insurance business while his license was suspended Respondent willfully violated the Order of the department which suspended his license and demonstrated a lack of fitness or trustworthiness to engage in the business of insurance.

   
   

10. In telling Ms. Coons that the policies she was purchasing provided for custodial care which they did not, and Respondent knew or should have known they did not, Respondent was guilty of willful misrepresentation of an insurance policy in violation of Section 626.611(5), (7), and (9).

    
    

11. While Respondent is charged with numerous statutory violations under each count, in making the recommendation below I have considered each improper act of Respondent as one violation and not as several violations. Specifically, for punishment purposes I have found Respondent guilty on four occasions of selling insurance while not licensed to do so and of making willful misrepresentations to Ms. Coons in selling her medical insurance. Considering the seriousness of these charges and Respondent's apparent disregard for the safety of the public, it is

RECOMMENDED that the license of Joseph Henton Pelt as an Ordinary- Combination Life, including disability insurance and a Disability Insurance Agent be revoked.

ENTERED this 25th day of September, 1981, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1981.

COPIES FURNISHED:

David A. Yon, Esquire

Room 428-A, Larson Building Tallahassee, Florida 32301

Stephen E. Witt, Esquire Post Office Box 2064

Lake City, Florida 32055

Bill Gunter, State Treasurer and Insurance Commissioner

Department of Insurance and Treasurer

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-001539

Orders for Case No: 81-001539