STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2471

)

JAMES JOSEPH PLOUFFE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. CALEEN, JR., duly designated Hearing Officer of the Division of Administrative Hearings, conducted a formal hearing in this case on February 9, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Curtis A. Billingsley, Esquire

Department of Insurance The Capitol

Tallahassee, Florida 32301

For Respondent: James Joseph Plouffe, pro se

9158 Keating Drive

Lake Park, Florida 33401

ISSUE

Whether respondent's license as an Ordinary-Combination Life, including Disability Insurance, agent should be revoked or otherwise disciplined for alleged violations of Chapter 626, Florida Statutes, the Florida Insurance Code.

BACKGROUND

By administrative complaint dated August 12, 1982, petitioner Department of Insurance ("Department") charged respondent James Joseph Plouffe ("respondent") with multiple violations of Chapter 626, Florida Statutes, the Florida Insurance Code. Respondent denied the charges and requested a Section 120.57(1) hearing. On September 3, 1982, this case was transferred to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was set for February 9, 1983. At hearing, the Department presented the testimony of R. C. Allen, James W. Wuertzberger, and Gladys L. Givens.

Petitioner's Exhibit Nos. 1-6 were received into evidence. Respondent testified in his own behalf.

No post-hearing proposed findings of fact and conclusions of law were submitted. Neither has a transcript of hearing been filed.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

1. At all times material hereto, respondent was licensed as a life insurance agent within the state of Florida, holding license No. 0372367841-01.

   
   

2. On or about January 28, 1980, respondent, an agent for Security Life Insurance Company of Georgia ("the Company"), sold to Gladys L. Givens of West Palm Beach, Florida--as beneficiary--two $1,000.00 life insurance policies on the life of Henry Givens, her husband. Mr. Givens was then 56 years old.

   
   

3. The application for these two policies was received by an underwriter in the Company's Macon, Georgia, home office. Because of Mr. Givens advanced age, the Company's rules did not permit $2,000.00 worth of life insurance to be purchased for him on a weekly premium basis. So the underwriting clerk indicated on the application that there was a $1,500.00 limit on allowable insurance and returned it to the Company's West Palm Beach district office.

   
   

4. The Company's West Palm Beach underwriting clerk then modified the application by erasing one of the $1,000.00 policy amounts, substituting

   $500.00, and making the necessary premium correction. The application was then returned to the Company's home office and policy Nos. 8756218A and 8756219A, totaling $1,500.00, were issued on Mr. Givens' life.

   
   

5. On or about July 21, 1980 respondent sold a life insurance policy in the amount of $2,500.00 to Mr. Givens, but the policy indicated that the insured was Henry Givens II, age 36, at 803 Third Street, West Palm Beach, Florida. The named beneficiary was Gladys Givens, identified as the mother of Henry Givens

   II. Either respondent, or another person under his control or at his request, completed this application on behalf of Henry Givens II. There is, however, no Henry Givens II at 803 Third Street, West Palm Beach, Florida. There never has been. Ms. Givens does not have a son named Henry Givens II. He is a fictitious person. Because Henry Givens II, the named insured, was stated to be 36 years old, a $2,500.00 policy was subsequently issued in his name by the Company.

   
   

6. Both Gladys and Henry Givens believed that these three life insurance policies insured the life of Henry Givens. Subsequent thereto, Gladys Givens made regular premium payments in accordance with the policies.

   
   

7. On December 13, 1981, Henry Givens died. The Company subsequently denied benefits to Gladys Givens under the third policy (insuring the life of Henry Givens II) because of the discrepancy in the name and age of the insured.

   
   

8. The evidence supports an inference that respondent submitted alone, or in combination with another, an application for insurance on the life of a nonexistent person, Henry Givens II, for the purpose of obtaining a commission or otherwise benefiting himself.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57, Fla. Stat. (1981).

   
   

10. The Department may suspend or revoke the license of an insurance agent for violating the Insurance Code, Chapter 626, Florida Statutes (1981). Grounds

    for compulsory suspension or revocation include circumventing the prohibitions of the Insurance Code, Section 626.611(4); willfully deceiving another with regard to an insurance policy, Section 626.611(5); demonstrating lack of fitness or trustworthiness to engage in the business of insurance, Section 626.611(7); demonstrating lack of reasonable knowledge and competence to engage in transactions authorized by license, Section 626.611(8); engaging in fraudulent or dishonest practices, Section 626.611(9); and willfully violating a rule of the Department or a provision of the Insurance Code, Section 626.611(13).

    
    

11. Grounds for discretionary suspension or revocation include violating a provision of the Insurance Code, Section 626.621(2); violating a rule of the Department, Section 626.621(3); causing injury or loss to the public or detriment to the public interest, Section 626.621(6); and violating the Code of Ethics, Section 626.621(9).

    
    

12. In addition, it is unlawful to engage in deceptive insurance practices, Section 626.9521; to file a false material statement, Section 626.9541(5)(a); to knowingly make a false entry of a material fact, Section 626.9541(5)(b); to make a false representation relative to an application for insurance, Section 626.9541(11)(a); to knowingly make a false or fraudulent statement in connection with an application for insurance, Section 626.9541(11)(b); and to make an untrue, deceptive or misleading statement, Rule 4-9.05(2), Florida Administrative Code.

    
    

13. License revocation proceedings, such as this, are penal in nature.

    The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla.

    1st DCA 1981)

    
    

14. Measured by these standards, the evidence supports a conclusion that respondent, by his complained-of actions, violated Chapter 626, Florida Statutes, as alleged. He engaged in insurance fraud and deception. He submitted a false insurance application for his own benefit, to the detriment of the insured.

    
    

15. Penalty. Respondent has shown that he wants to remain an insurance agent and that he supports his wife and children. Nevertheless, he has, without excuse, engaged in a dishonest act as an insurance agent. One of the purposes of Chapter 626 is to protect the public from dishonest and unscrupulous agents. See, Section 626.221, Fla.Stat.(1981). Revocation of respondent's license is, therefore, warranted, without prejudice to his right to reapply in the future upon a showing of rehabilitation.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That respondent's insurance license be revoked for multiple violations of Chapter 626, Fla.Stat., without prejudice to his right to reapply for a license in the future upon a showing of rehabilitation.

DONE and RECOMMENDED this 27th day of April, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 27th day of April, 1983.

COPIES FURNISHED:

Curtis A. Billingsley, Esquire Department of Insurance

The Capitol

Tallahassee, Florida 32301

James Joseph Plouffe, pro se 9158 Keating Drive

Lake Park, Florida 33401

William Gunter, Insurance Commissioner and State Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA OFFICE OF TREASURER

IN THE MATTER OF JAMES JOSEPH PLOUFFE

Revocation of License and Case No. 82-L-192CB Eligibility for Licensure DOAH Case No. 82-2471 Ordinary-Combination Life,

including Disability Insurance

/

FINAL ORDER

THIS CAUSE came before the undersigned Insurance Commissioner and Treasurer for consideration and final agency action after an administrative proceeding designated Case No. 82-2471 was conducted before the Division of Administrative Hearings, Department of Administration, and a Recommended Order was rendered by the Hearing Officer.

The Recommended Order, a copy attached hereto and hereby made a part of this Order, has been considered. It is

ORDERED:

1. The Findings of Fact, Conclusions of Law and Recommended Order of the Hearing Officer are adopted except for the language which indicates a right of Respondent to reapply for a license without prejudice upon a future showing of rehabilitation. Any opportunity of Respondent to reapply is governed by the provisions of Section 626.641, Florida Statutes, which requires inter alia that the Insurance Department deny relicensure, "if it finds that the circumstance or circumstances for which the eligibility was revoked or for which the previous license or permit was revoked still exist or are likely to recur."

   
   

2. That Respondent's insurance license is revoked for multiple violations of Chapter 626, Florida Statutes.

DONE and ORDERED at Tallahassee, Florida, this 13th day of June, 1983.

BILL GUNTER

Insurance Commissioner and Treasurer

WILLIAM D. RUBIN, Assistant Insurance Commissioner

and Treasurer

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to R. L. Caleen, Jr., Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, and by certified mail to JAMES JOSEPH PLOUFFE, 9158 Keating Drive, Lake Park, Florida 33401, this 13th day of June, 1983.

CURTIS A. BILLINGSLEY

Attorney

Department of Insurance 413-B Larson Building Tallahassee, Florida 32301

(904) 488-4540

Docket for Case No: 82-002471

Orders for Case No: 82-002471