STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0093

) RICHARD ELLIOTT TEMPLIN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Second Notice of Hearing furnished to the parties by Hearing Officer Donald R. Alexander on April 21, 1987, a hearing was held in this case in West Palm Beach, Florida on May 28, 1987 conducted by Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings. The issue for consideration was whether Respondent's qualification for licensure as a general lines agent and life and health insurance agent in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: William W. Tharpe, Jr., Esquire Office of Legal Services

413-B Larson Building Tallahassee, Florida 32399-0300

Respondent: David W. Spicer, Esquire

Tammy J. Kissell, Esquire Bobo, Spicer, and Ciotoli NCNB Tower, Suite 910

1555 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401-2363 BACKGROUND INFORMATION

On October 10, 1986; Petitioner filed an Administrative Complaint against the Respondent alleging various violations of the provisions of Chapter 626, Florida Statutes. In three Counts, Petitioner alleged that Respondent made misrepresentations to various customers who sought automobile insurance with him which resulted in each customer being sold additional coverage for life and accidental death insurance and motor club memberships without their knowledge or consent. Respondent filed an Answer to the Administrative Complaint in which he denied the allegations filed against him and requested a formal hearing. On January 7, 1987, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Mr. Alexander originally

scheduled the hearing for April 28, 1987, but consistent with a Motion for Continuance filed by Respondent, the case was postponed until May 28, 1987. In the interim, the file was transferred to the undersigned who conducted the hearing as scheduled.

At the hearing, Petitioner presented the testimony of Hilliard L. Lanning, Vice President of American Traveler's Association, (ATA), a motor club; Amy Brown, Underwriting Manager for Fortune Insurance Company; Leon C. Crawford, Policy Benefits Representative for Fortune Life Insurance Company; and Raven Miller, Robert M. Anderson, and Dennis and Aleta Nelson, individuals who dealt with Respondent and were sold the product forming the basis for the Complaint filed herein. Petitioner also introduced Petitioner's Exhibits 1 through 13.

Respondent did not testify nor did he call any witnesses in his behalf but did introduce Respondent's Composite Exhibit A.

Subsequent to the hearing, both parties submitted Proposed Recommended Orders containing Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, Respondents Richard Elliott Templin, Jr., was qualified for licensure as a general lines agent and as a life and health insurance agent in Florida and represented the Okeechobee Insurance Agency, (OIA), located at 1874 Okeechobee Boulevard, West Palm Beach, Florida.

   
   

2. Respondent is currently eligible for licensure as a general lines agent and as a health and life insurance agent in Florida.

   
   

   RAVEN MILLER

   
   

3. In March, 1984, Raven Miller applied for and was issued automobile insurance by OIA. She contacted that agency among others and found that it quoted her the cheapest price for the coverage she wanted, coverage sufficient to protect her and the finance company from loss. During the application process, she signed several forms provided to her by the agent who briefly discussed her coverage with her but did not advise her it would include life insurance or accidental death insurance.

   
   

4. When she initially went into the office to renew the policy, she asked for coverage on the vehicle but did not desire anything else. The employee with whom she talked indicated understanding of her desires and filled out the required paperwork for her without asking any other questions of her. When the paperwork was completed, Ms. Miller was told that the premium cost would be

   $347.00 for which she gave a check and received a receipt, plus $110.00 for a term life insurance policy. She was not told that that this latter coverage was separate from the automobile coverage.

   
   

5. Ms. Miller filled out nothing during the application process. All the documents were filled out by the clerk. The application form was completely filled out except for her signature when she signed it. It reflected that uninsured motorist coverage was rejected but Ms. Miller was not asked by anyone at the agency if she desired that coverage. When she inquired about deductibles, she was advised there was a mandatory $250.00 deductible and though she is reflected to have rejected bodily injury coverage, this was not discussed with her, either.

6. The only form that Ms. Miller filled out personally was the pink application to Fortune Insurance Company, (Fortune), on which she identified her "beneficiary." This form was not explained to her, however, nor was there any discussion with her of life insurance coverage. Ms. Miller, who works with the Post Office, has $140,000 in life insurance coverage through her job and had she known she was being offered additional life insurance coverage, would have rejected it.

   
   

7. When Ms. Miller signed the summary of coverage form, it was completely filled out. The lady with whom she was dealing briefly went over the various items on it but did not discuss them with her or explained anything to her. The confirmation form which she signed was filled out prior to being given to her for signature. The explanation regarding it was brief and she was not advised that life insurance coverage was optional. The life insurance premium was not forwarded by OIA to the company. She did not receive a policy from either Fortune Life or ATA.

   
   

8. At no time during her dealings with OIA did she meet or deal with Respondent and she does not know him nor would she recognize him.

   
   

9. When she sold her car in March, 1985, Ms. Miller cancelled the policy in person at the agency at which time she was advised that her refund would come in the mail. Even after numerous contacts with the agency to inquire where the refund was, it was not given to her.

   
   

10. At no time during her dealings with OIA was she aware of the fact that she was applying for an accidental death policy. All she asked for, all she wanted, and all she thought she was getting was auto insurance sufficient to cover her, her bank, and others with whom she might have an accident in the event of loss. Notwithstanding the fact that Ms. Miller signed an acknowledgment of explanation both at the time of the original policy and and the time of renewal, the explanation in both cases was extremely brief. She asked no questions to speak of and no information was volunteered. In short, at the time of renewal the agency merely renewed the prior coverage. They did not show her what they were comparing with. She assumes that the figures were the same as for the original policy and she assumed that whatever she got was a standard coverage and charge to every applicant.

    
    

11. Ms. Miller was satisfied with the coverage she received and the package she purchased. Her complaint to the Department of Insurance related to the failure to receive her refund not to the sale of the insurance to her. In fact, at the time she filed her complaint, she did not even know that she had a life insurance policy.

    
    

    DENNIS AND ALETA NELSON

    
    

12. Dennis Nelson, who has worked for the Post Office for approximately 10 years, on or about March 21, 1985 went to the OIA because, having spoken with Respondent over the phone, and having gotten a quote for "full coverage" on his automobiles from him, he liked the price. Mr. Nelson dealt with Respondent who took down the particulars on the cars to be covered, then went to his rate books, and quoted a price to Mr. Nelson which was satisfactory. In doing so, he laid out the explanation of coverage form and indicated what coverage the Nelsons would have.

13. In the course of the application process, there was no discussion of the limits of liability insurance, uninsured motorist Coverage, deductibles, or life insurance. When the paperwork was completed, Mr. Nelson signed the applications for insurance given to him and a premium finance agreement.

    
    

14. Respondent explained to Mr. Nelson the application for life insurance and gave him the impression that it was mandatory. It was made mandatory by the company that a customer buy the whole package, but it was not mandatory under the state requirements. The failure to make this distinction is misleading and deceptive.

    
    

15. Mr. Nelson never received any policies from any of the companies from whom he was supposed to have received coverage, though he made his premium payments. By the same token, the company did not receive Nelson's premiums from the agency and, therefore, did not issue a policy.

    
    

16. Approximately three months after the coverage went into effect, OIA notified the Nelsons that the cost of coverage on their Blazer would be raised by more than $200 for the year. Mr. Nelson made the initial inquiry call to the company writing this coverage but he was poorly treated by company representatives and got no information. Thereafter, Mrs. Nelson went to OIA's Okeechobee Boulevard office and spoke with Respondent who indicated he could not understand it either. Nonetheless, she paid a part of the increase, ($110.00), at the time in cash. The Nelsons checked with other companies and were quoted lower prices. Because OIA could not explain the raise, they went to the Petitioner's local office where they were told that the life insurance coverage they had purchased was not mandatory. As a result, they decided to cancel their coverage with OIA which Mrs. Nelson did in person. When she attempted to fill out the cancellation form, she was told by an agency employee that she could not cancel the life insurance portion only her husband could do that.

    
    

17. Mr. Nelson thereafter attempted to reach the Respondent to discuss this situation with him but could never seem to get in touch with him. Mr. Nelson felt he got repeated run arounds from the employees at OIA and was repeatedly referred to the Lake Worth office. When they ultimately received the refund from OIA, it was dishonored and thereafter, the Nelsons were reimbursed for it in cash.

    
    

    ROBERT M. ANDERSON

    
    

18. Mr. Anderson, an employee of Pratt and Whitney Aircraft Corporation in West Palm Beach, purchased automobile insurance from OIA in July, 1985. He selected that agency because they offered him the best price for the coverage which he had told them he wanted, which was "the minimum necessary to satisfy state and bank requirements." During the course of his negotiations with the agency, he dealt with an individual known to him as "Rich" but though Respondent looks familiar to him, he cannot identify Respondent as that individual.

    
    

19. He advised the individual with whom he dealt what kind of car he had, (a Porche 911), his age, and that he wanted the best deal he could get. In response, the individual gave him a quotation for a 12 month policy which was too high for his budget. He asked for a quote on the rate for 6 months which was quoted to him as $1,816.00, for which he wrote a check.

    
    

20. Mr. Anderson thereafter filled out an application package for coverage. The summary of coverage form was not discussed with him in detail. For example, the $2,000 deductible of PIP coverage was not discussed nor were

    any details or deductibles on other coverages. Accidental death coverage was not discussed with him nor did he request it.

    
    

21. He recognizes his signature on certain documents and does not dispute having signed them. However, he does not recall any discussion about them nor does he recall signing a power of attorney form or even discussing the need to have one signed.

    
    

22. There was no discussion with Mr. Anderson regarding life insurance coverage and in fact, he would have declined it had it been discussed because he was fully covered through his company's group policy.

    
    

23. Mr. Anderson was not prevented from asking questions but did not do so because he did not know what questions to ask. He was given the opportunity to read the forms but did not review them in detail because he did not understand them then and does not understand them now. He did not, however, indicate that he did not understand. Because he had 9 points on his driver's record, he did not ask many questions. He was grateful to get any coverage and did not feel it was appropriate to take the time, as busy as Respondent appeared to be, to ask questions. It was his understanding that everything he got was a part of the "total package" that he requested.

    
    

24. Mr. Anderson had no complaint about the coverage that he received.

    His complaint to the Petitioner was based on his failure to secure a prompt refund from the agency at the time he desired to cancel the coverage, and it was at this time, in discussing the matter with the Commissioner's office, that he first learned he had life and other undesired coverages as a part of his auto insurance package. He has, however, subsequently received the refund requested.

    
    

25. All of the individuals referenced above received and paid for as a part of their insurance coverage, membership in an automobile motor club. On policies of this nature, the selling agency retains 90 percent of the premium and remits only 10 percent to the insurer. The motor club membership included a life insurance policy issued by Fortune Life.

    
    

26. None of the persons involved with Respondent here knew they were buying either life insurance, accidental death insurance, or motor club membership. All had asked for "total" coverage, desiring thereby only that coverage necessary to operator a motor vehicle legally in this state. Neither life insurance, accidental death insurance, nor motor club coverage is a requirement of the state for the operation of a motor vehicle.

    
    

27. It is not unlawful for an insurance agency to make those coverages a necessary part of a package and condition the issuance of liability, property damage, and PIP coverage upon the purchase of a total package including the other. What is improper, however, is a failure on the part of the agency to disclose that the life, accidental death, and motor club coverages are not a part of the insurance requirements of the state and the failure to disclose this is the nexus of the offense alleged.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

29. In the instant case, the Petitioner has alleged that Respondent has violated Section 626.561(1), Florida Statutes, which provides:

    All premiums, return premiums, or other funds belonging to insurers or others received by an agent, solicitor, or adjustor in transactions under his license shall be trust funds so received by the licensee in a fiduciary capacity; and the licensee, in the applicable regular course of business shall account for and pay the same to the insurer, insured, or other person entitled thereto.

    
    

30. Here the evidence clearly shows that all three clients involved with the Respondent, Ms. Miller, the Nelsons, and Mr. Anderson, requested refunds upon cancellation of their insurance coverage with Respondent's agency. Respondent failed to make the refunds in a timely manner and as a result, the insured were required to go to the Insurance Commissioner for assistance in obtaining them. This unjustified delay on the part of Respondent constitutes a violation of this particular statutory provision.

    
    

31. Petitioner has also alleged that Respondent is in violation of various portions of Section 626.611; Section 626.621; Section 626.9521; and of Section 626.9541, Florida Statutes.

    
    

32. Section 626.611 outlines the grounds for compulsory discipline of an agent, solicitor, or adjustor's license and includes:

    
    

    (5) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising.

    * * *

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

    * * *

    (9) Fraudulent or dishonest practices in the conduct of business under the license or permit.

    * * *

    (13) Willful failure to comply with or willful violation of any proper order or rule of the department or willful violation of any provision of this code.

    
    

33. Here the customers in question had asked of the Respondent with whom they were dealing in good faith, that they be provided the required "full" coverage necessary for operation of their vehicles on the roads of this state. This coverage does not include auto club membership, life insurance, or accidental death coverage. Respondent's inclusion of these, mandatorily in a package, without disclosing that this coverage was not required by the state, constitutes a misrepresentation as envisioned by the statute (Subsection 5). It also constitutes a dishonest practice in the conduct of business under the license, (Subsection 9). These violations, along with the violations of Section

    626.561 by failing to promptly refund unearned premiums, constitute a willful failure to comply with a provision of the insurance code and demonstrate a lack of fitness or trustworthiness to engage in the business of insurance, violations of subsections 13 and 7; as well.

    
    

34. Whereas the aforementioned statutory provisions provide grounds for compulsory discipline, Section 626.621 provides grounds for discretionary discipline of an agent's license and includes:

    
    

    (6) In the conduct of business under the license or permit1 engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of this chapter, or having otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest.

    
    

35. Unfair methods of competition or unfair or deceptive acts or practices are also prohibited by the terms of Section 626.9521 and are subsequently defined in Section 626.9541. This provision states, in pari materia,:

    
    

    1. Unfair methods of competition and unfair or deceptive acts. The following are defined as unfair methods of competition and unfair or deceptive acts or practices:

       1. Misrepresentations and false advertising of insurance policies - Knowingly making, issuing, circulating or causing to be made, issued or circulated, any estimate, illustration, circular, statement, sales presentation, omission, or comparison, which:

          * * *

          5. Uses any name or title of any insurance policy or class of insurance policies misrepresenting the true nature thereof.

          
          

36. It is not improper or illegal for an insurance agent to make the purchase of certain lines of coverage, such as life or accidental death insurance a mandatory part of an overall package. What is improper; unfair, or deceptive, is to include these coverages without notifying the prospective purchaser, (1) that the coverages are included, and (2) that the coverages are made a mandatory part of the package the agent putting the package together. Respondent had the right to include life or accidental death insurance or, for that matter, auto club membership in the package offered for sale to his customers and it was not improper for him to make them mandatory portions thereof. What was improper, was his failure to clearly identify to his prospective purchasers that these coverages, the premium for which made up a substantial portion of the entire premium were included and were made mandatory not by the state but by him as a condition precedent to his writing coverage on the mandatory lines.

    
    

37. It is not sufficient for Respondent or his employees to have briefly recited to unsophisticated purchasers of insurance coverage the various lines

    included in the package. Fair practice dictates that the salesperson clearly make known to the prospective purchaser exactly what coverage he or she is being provided and what the cost therefor is. The salesperson must also notify the insured if these additional coverages are required by the state for the operation of a vehicle on the roads of Florida.

    
    

38. Either Respondent or his employees very briefly and in a cursory fashion advised the purchasers involved the extent of the coverage they were purchasing by merely having them sign a form on which the coverages were listed or briefly reading what was on the form to them. No attempt was made to clearly explain what was being provided and why and it is in this failure to be completely candid and clear with the the purchaser that Respondent falls within the prescriptions of the statute. He is guilty of, if not commission, certainly omission in failing to adequately describe the coverage he was providing. His failure to promptly refund unearned premiums also constitutes an unfair practice in addition to a violation of Section 626.561 as previously mentioned.

    
    

39. Section 626.734 makes an agent who is an employee of an incorporated general lines agency, responsible for violations of the code committed by persons acting under his supervision and control. Respondent was an employee of OIA, an incorporated general lines insurance agency, and signed as agent on the transactions involved in this case. As such, he is responsible for any and all misrepresentations made to customers of the agency, whether made by him or others employed by the agency.

    
    

40. It should be noted here that Petitioner withdrew the allegations contained in paragraphs 21 through 23 of the Administrative Complaint and presented no evidence on them. Therefore, it must be concluded that no violation has been established with regard to these allegations.

    
    

41. Notwithstanding, the evidence is clear that Respondent has committed sufficient other violations of the insurance code to justify disciplinary action against his license. Such action should consist of placing the Respondent on probation for a period of two years under such terms and conditions as the department may specify and the imposition of an administrative fine of

$2,500.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore:

RECOMMENDED that the Respondent's licenses and eligibility for licensure be placed on probation for a period of two years and that he be ordered to pay an administrative fine of $2,500.00.

RECOMMENDED this 27th day of July, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0093

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For Petitioner

34 Rejected as unproven. Witness never identified Respondent as the individual with whom he dealt. In the remaining paragraph rulings, it is assumed only that Respondent was involved.

35&36 Accepted and incorporated herein. 37-39 Accepted and incorporated herein. 40&41 Accepted and incorporated herein. 42&43 Accepted.

For Respondent

1. Accepted and incorporated herein.

2. Accepted not as a Finding of Fact but as a recitation of the evidence,

3. Accepted in substance. Paragraph is long and involved.

4. See 3 above.

5. See 3 above.

COPIES FURNISHED:

William Gunter, Commissioner Department of Insurance

and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

William W. Tharpe, Jr., Esquire Office of Legal Services

1. Larson Bldg.

   Tallahassee, Florida 32399-0300

   
   

   David W. Spicer, Esquire Tammy J. Kissell, Esquire NCNB Tower, Suite 910

   1555 Palm Beach Lakes Boulevard

   West Palm Beach, Florida 33401-2363

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF INSURANCE AND TREASURER

   
   

   IN THE MATTER OF:

   
   

   RICHARD ELLIOT TEMPLIN, JR. Case No. 86-L-585WA

   DOAH No. 87-0093

   Revocation of License and Eligibility for Licensure

   
   

   Ordinary Life Agent

   
   

   Ordinary Life, including Health Agent

   General Lines Agent Health Agent

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the undersigned Insurance Commissioner of the State of Florida for consideration and final agency action. On October 7, 1986, an Administrative Complaint was filed against RICHARD ELLIOTT TEMPLIN, JR., Respondent, charging various violations of the Insurance Code as set forth in the Administrative Complaint. On November 24, 1986, the Respondent filed a request for formal hearing pursuant to Section 120.57(1), Florida Statutes. On January 7, 1986, the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer. Pursuant to notice, a formal hearing was held on May 28, 1987 in West Palm Beach, Florida before the Honorable Arnold Pollock, Hearing Officer for the Division of Administrative Hearings.

   
   

   After consideration of the evidence and argument presented at the hearing, and after further consideration of the proposed Findings of Fact and Conclusions

   of Law submitted by the parties, the Hearing Officer, on July 27, 1987, issued a Recommended Order (attached as Exhibit "A") to the Insurance Commissioner. The Hearing Officer recommended that a final order be issued placing the Respondent on probation for a period of two years and imposing an administrative fine.

   
   

   On August 4, 1987, the Petitioner filed Exceptions To Recommended Order.

   On August 14, 1987, Respondent filed Exceptions To Recommended Order, RULINGS ON RESPONDENT'S EXCEPTIONS

   1. Paragraph 1 of Respondent's exceptions accepts certain findings and need not be addressed.

      
      

   2. Paragraph 2 of Respondent's exceptions lists six arguments relating to the Hearing Officer's Findings of Fact involving Raven Miller. Respondent argues that Ms. Miller knew she was buying a package which included accidental death insurance, that the package was explained to her, that she asked no questions, and that she signed forms indicating she had received an explanation. Respondent's exception is rejected. The record contains competent substantial evidence to support the Hearing Officer's conclusion that Ms. Miller only wanted, and thought that all she received was, automobile insurance.

      
      

      It is the Hearing Officer's function to consider all the evidence presented, resolve conflicts, judge credibility of the witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence. State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3d DCA 1959); Cenac v. Florida State Board of Accountancy, 399 So.2d 1013, 1016 (Fla. 1st DCA 1981); Heifetz v. Department of

      Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).

      
      

      The Department is required by law to accept the Hearing Officer's Findings of Fact provided there is competent substantial evidence to support the findings. Kimball v. Hawkins, 364 So.2d 463, 465 (Fla. 1978).

      
      

   3. Paragraph 3 of Respondent's exceptions lists four arguments relating to the Hearing Officer's Findings of Fact involving Dennis and Aleta Nelson. These exceptions are rejected for the same reasons as set forth in paragraph 2 above.

      
      

   4. Paragraph 4 of Respondent's exceptions objects to the Hearing Officer's Findings of Fact relating to Robert M. Anderson because, Respondent argues, Mr. Anderson was aware that he was purchasing a "package deal" which included an accidental death and dismemberment policy. The record contains competent substantial evidence to support the Hearing Officer's finding in paragraph 24 of his Recommended Order that Mr. Anderson was not aware that he had purchased an accident death policy (life insurance) and other undesired coverages until he complained to the Insurance Department that the agency had not given him a refund on his cancelled automobile insurance. Respondents exception is therefore rejected on the same basis as recited in paragraph 2 above.

      
      

   5. Respondent's paragraph 5 contains a clarification of the Hearing Officer's finding in paragraph 25. This clarification is accepted.

      
      

   6. Paragraph 6 of Respondent's exceptions argues that each of the three customers involved were aware that they were purchasing life insurance or accidental death insurance. The record contains competent substantial evidence supporting the Hearing Officer's conclusion in paragraph 26 of his Recommended Order that "none of the persons involved with Respondent here knew they were

      buying either life insurance, accidental death insurance, or motor club membership." Respondent's exception is therefore rejected on the same basis as recited in paragraph 2 above.

      
      

   7. In paragraph 7, Respondent does not state an exception but once again argues that Respondent informed the individuals that life insurance was included in the package of insurance. This paragraph is rejected since it is redundant.

      
      

   8. Paragraph 8 of Respondent's exceptions states that no violation of Florida Statutes could be found if the Respondent's exceptions are excepted. Having rejected Respondent's exceptions, paragraph 8 is also necessarily rejected.

RULINGS ON PETITIONER'S EXCEPTIONS

The Petitioner does not take exception to the Findings of Fact or the Conclusions of Law made by the Hearing Officer.

The Petitioner does take exception to the Hearing Officer's recommended penalty.

The Hearing Officer determined that the Respondent was guilty of numerous provisions within Chapter 626, Florida Statutes (1985) to wit: Sections 626.561(1); 626.611(5), (7), (9) and (13), 626.621(6); 626,9521 and

626.9541(1)(a)5.

Section 626.611, Florida Statutes requires the suspension or revocation of a licensee who has been found guilty of any of the subsections enumerated thereunder,

Disciplinary action imposed by an agency should be guided by any precedent set by previously entered final orders involving the same or similar circumstances. The Administrative Complaint filed against the Respondent in this case and the evidence presented in the support of those charges are essentially the same as similar charges which have been brought against other insurance agents by the Department of Insurance. The practice of charging unsuspecting customers for accidental death or life insurance policies and/or motor club memberships in connection with the purchase of automobile insurance in violation of numerous provisions of Florida Insurance Code can be seen in other cases which have been before the Division of Administrative Hearings in the past. Those cases include Department of Insurance vs. Peter Baronosky, Jr., Walter David McCoy, Ricky Dale Williams, DOAH Case Nos. 83-181; 83-194; 83-397, Final Order dated May 16, 1984; FALR (Licenses revoked for all three agents); Department of Insurance and Treasurer vs. Kevin Dennis Cox, DOAH Case No. 82-3540, Final Order dated October 31, 1983, 5 FALR 2307-A (license revoked); Department of Insurance vs. Kenneth Edward Sneider, DOAH Case No. 83- 1188, Final Order entered January 24, 1986, 8 FALR 3453 (license suspended for six months); Department of Insurance and Treasurer vs. Ronald T. Pascale and Leonard C. Chandler, DOAH Case Nos. 86-3565 and 86-3566, Recommended Order dated June 24, 1987 (final order pending, Hearing Officer recommended license revocation for both agents).

Agencies have the authority to enhance a recommended penalty. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978),

Upon consideration of the foregoing and the record and being otherwise fully advised in the premises, it is

ORDERED:

1. The Findings of Fact of the Hearing Officer are adopted in full.

   
   

2. The Conclusions of Law of the Hearing Officer are adopted in full.

   
   

3. The Hearing Officer's recommendation that Respondent pay an administrative fine of $2,500.00 and be placed on probation for a period of two years is rejected. The licenses and eligibility for licensure of Respondent, RICHARD ELLIOTT TEMPLIN, JR., are hereby revoked.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this 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 413-B Larson Building, Tallahassee, Florida, 32399-0300 and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order.

DONE and ORDERED this 21st day of September, 1987.

BILL GUNTER

Insurance Commissioner and State Treasurer

ANN WAINWRIGHT

Assistant Insurance Commissioner and State Treasurer

Copies Furnished To:

Honorable Arnold H. Pollock Hearing Officer

Division of Administrative hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

William W. Tharpe, Esquire Offices of Legal Services Department of Insurance 413-B Larson Building

Tallahassee, Florida 32399-0300

David W. Spicer, Esquire Tammy J. Sissell, Esquire NCNB Tower, Suite 910

1555 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401-2363

Richard Elliott Templin, Jr. 1874 Okeechobee Boulevard

West Palm Beach, Florida 33409

Docket for Case No: 87-000093

Orders for Case No: 87-000093