Judges: LARRY J. SARTIN
Agency: Department of Financial Services
Latest Update: Mar. 07, 1988
Summary: Department failed to act on application for license within time required by 120.60(2). Recommended issuance of license.
87-3092STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE INSURANCE COMPANY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-3092
)
DEPARTMENT OF INSURANCE, )
)
Respondent. )
)
RECOMMENDED ORDER
A motion hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 12, 1987, in Tallahassee, Florida.
The Petitioner, T.H.E. Insurance Company, Inc., was represented at the hearing by Steven M. Malono, Esquire, and Charles T. Collette, Esquire. The Respondent, the Department of Insurance (hereinafter referred to as the "Department"), was represented by Michael C. Godwin, Esquire.
INTRODUCTION
On July 2, 1987, the Department notified the Petitioner that its application for admission into the State of Florida as an Eligible Surplus Lines Insurer was being denied. The Petitioner filed a Petition for Formal Hearing contesting the Department's proposed denial.
On December 4, 1987, the Petitioner filed Petitioner's Motion for Partial Summary Determination and Petitioner's Request for Hearing. On December 10, 1987, the Department filed Respondent's Response in Opposition to Petitioner's Motion for Partial Summary Determination.
On December 12, 1987, a motion hearing was conducted pursuant to the Petitioner's Request for Hearing. At the conclusion of the motion hearing the parties were informed that a Recommended Order would be issued recommending approval of the Petitioner's application as an Eligible Surplus Lines Insurer.
Subsequent to the conclusion of the motion hearing the Department filed a Motion to Relinquish Jurisdiction. The Petitioner filed Petitioner's Response to Motion to Relinquish Jurisdiction in opposition to this Motion.
FINDINGS OF FACT
The Petitioner submitted an application to the Department on February 11, 1987, for licensure in the State as an Eligible Surplus Lines Insurer (hereinafter referred to as the "Application").
The Application was received by the Department on February 12, 1987.
As of March 14, 1987, thirty days after the Application was filed, the Department had not requested any additional information concerning the Application. Nor had the Department notified the Petitioner of any errors or omissions. The Application was, therefore, deemed complete as of March 14, 1987.
May 13, 1987, was the ninetieth day from the date the Petitioner filed the Application. The Department took no action to approve or disapprove the Application on or before May 13, 1987.
On July 2, 1987, the Department notified the Petitioner that the Application was denied.
The Petitioner filed a Petition for Formal Hearing contesting the Department's denial of the Application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1987).
Section 120.60(2), Florida Statutes, provides, in pertinent part, the following:
When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. . . .
Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. . . . Any application for a license which is not approved or denied within the 90-day or shorter time period . . . shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued.
Pursuant to this provision, the Department is given thirty days after receiving an application to notify the applicant of any errors or omissions, and to request any additional information. The Department is then given ninety days
from the date the application is filed or from the receipt of information requested by the Department or the correction of an error or omission to approve or deny the application. If the Department fails to do so, the application is deemed approved and a license must be issued.
The facts in this case, which were stipulated to by the parties at the motion hearing, indicate that the Petitioner filed the Application on February 12, 1987. March 14, 1987, was thirty days from the date the Application was filed. The Department did not notify the Petitioner that additional information was needed or that there were omissions or errors in the Application.
Therefore, ninety days from February 12, 1987, or May 13, 1987, the Department was required to approve or deny the Application. The Department did not approve or deny the Application, however, until July 2, 1987. Pursuant to the unambiguous language of Section 120.60(2), Florida Statutes, the Application is deemed approved and the Department is required to issue the license applied for to the Petitioner. See World Bank v. Lewis, 425 So.2d 77 (Fla. 1st DCA 1982).
See also Department of Business Regulation v. Hyman, 417 So.2d 671 (Fla. 1982); Gulf Coast Home Health Services of Fla., Inc. v. Pingree, 476 So.2d 760 (Fla.
1st DCA 1985); and Ewing v. Kaplan, 474 So.2d 302 (Fla. 4th DCA 1985).
In opposition to the Petitioner's Motion for Partial Summary Determination, the Department argued that the relief sought is not available in this Proceeding. The Department is technically correct. "Partial summary determination" is not the proper remedy in this case. Under the undisputed facts of this case, the proper remedy is the issuance of a Recommended Order recommending that the Petitioner's Application be approved.
The Department also argued that there are disputed issues of material fact which must be resolved in this case. The Department, however, has not raised any issue of fact concerning the application of Section 120.60(2), Florida Statutes. All of the facts necessary to apply that provision were agreed to by the parties. The only issues raised by the Department involve questions of law and not fact.
Upon informing the parties that a Recommended Order would be issued in this case, the Department made an ore tenus motion to relinquish jurisdiction of the case to the Department because there were no disputed issues of fact. This motion was denied. The Department subsequently filed a Notion to Relinquish Jurisdiction.
Although the parties have agreed upon the facts which are dispositive of the question of the proper application of Section 120.60(2), Florida Statutes, there are two legal arguments which have been raised by the Petitioner in support of its position in this case. One involves Section 120.60(2), Florida Statutes, and the other involves the question of whether the Petitioner's Application should be approved on its merits. Either or both of these arguments, if decided in favor of the Petitioner, would warrant approval of its Application. Although the facts necessary to dispose of the first argument are not in dispute, the facts necessary to dispose of the second argument are in dispute. Therefore, jurisdiction is properly vested in the Division of Administrative Hearings.
The fact that it is proper to resolve this case based upon one of the legal arguments raised by the Petitioner does not mean that the Division of Administrative Hearings' jurisdiction over this case is lost. Accordingly, the Motion to Relinquish Jurisdiction should be, and is, hereby denied.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a license to the Petitioner as an
Eligible Surplus Lines Insurer in the State of Florida pursuant to Section 120.60(2), Florida Statutes
DONE and ENTERED this 7th day of March, 1988, in Tallahassee, Florida.
LARRY SARTIN
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 7th day of March, 1988.
COPIES FURNISHED:
Steven M. Malono, Esquire Charles T. Collette, Esquire
P. O. Box 11127 Tallahassee, Florida 32302
Michael C. Godwin, Esquire Department of Insurance 413-B Larson Building
Tallahassee, Florida 32399-0300
Honorable William Gunter State Treasurer and
Insurance Commission The Capitol, Plaza Level
Tallahassee, Florida 32399-0300
Don Dowdell, Esquire Department of Insurance The Capitol, Plaza Level
Tallahassee, Florida 32399-0300
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF INSURANCE AND TREASURER
INSURANCE COMPANY, INC.,
Petitioner,
vs. DOAH Case No. 87-3092
DOI Case No. 87-L-120MCG
DEPARTMENT OF INSURANCE AND TREASURER,
Respondent.
/
FINAL ORDER
THIS CAUSE came before the Insurance Commissioner for consideration and final agency action. On July 2, 1987, the Department of Insurance issued a letter denying the application of the Petitioner, T.H.E. Insurance Company, Inc. for listing as an eligible surplus line insurance carrier. On or about July 22, 1987, Petitioner filed a request for formal hearing pursuant to Section 120.57(1), Florida Statutes. The requested hearing was never held, but on December 4, 1987, the Petitioner filed Petitioner's Motion for Partial Summary Determination and Petitioner's Request for hearing on this Motion.
On December 12, 1987, a motion hearing was conducted on petitioner's Motion for Partial Summary Determination before Larry J. Sartin, Hearing Officer for the Division of Administrative Hearings. Subsequent to this motion hearing, and without hearing factual issues which had been raised by the Respondent regarding petitioner's qualification for licensure, the Hearing Officer, on March 7, 1988, issued a Recommended Order (attached hereto as Exhibit "A") to the Insurance Commissioner in which it recommended that the Insurance Commissioner issue a license to the Petitioner as an eligible surplus lines insurer in the State of Florida solely on the basis of operation of Section 120.60(2). The Department filed an exception to the Findings of Fact in toto, and to the Conclusion of Law.
RULING ON RESPONDENT'S EXCEPTIONS TO RECOMMENDED ORDER
Respondent's in toto exception to the findings of fact is rejected. The exception turns upon which facts are essential to reach a conclusion on the law. The hearing officer declined to deal with any factual questions as to whether petitioner was qualified for listing as an eligible surplus lines insurer under the Insurance Code, and chose instead to deal only with the provisions of Section 120.60(2). The facts set out by the hearing officer were adequate for entry of a final order based on that section.
Respondent's exception to the entry of a recommended order is rejected. Facts sufficient for the Hearing Officer to enter the recommended order interpreting Section 120.60(2) were recited. Other facts which were not recited were not directly relevant to this specific action. The Hearing Officer acknowledges that this action is not one in which he may grant a summary determination.
Respondent's exception to the retention of jurisdiction by the formal Hearing Officer is rejected. Even though jurisdiction rests in the agency in cases where no disputed issue of fact exists, the Hearing Officer indicates that facts necessary to determine whether Petitioner's application should be approved on the merits are in dispute. This dispute vests jurisdiction in the Division of Administrative Hearings. That the Hearing Officer determined that this dispute was not a necessary part of this action to rule upon the question of law as to the application of Section 120.60(2), Florida Statutes, does not require that jurisdiction be remanded to the Department of Insurance.
Respondent's recommendation in the alternative is well taken. There do remain disputed issues of material fact which have not been resolved in the instant proceeding, and which may be subject of another proceeding. They are not, however, required to be resolved prior to entry of a final order in the instant matter.
FINDINGS OF FACT
Upon consideration of the Hearing Officer's Recommended Order, exceptions filed by the Respondent, and having been otherwise fully advised in the premises, I make the following findings of fact:
The Hearing Officer's findings of fact are approved and adopted and incorporated herein by reference.
There remain disputed issues of fact, beyond those found by the Hearing Officer, but not necessary for the issuance of this Final Order, which have not been resolved in the instant proceeding and are therefore reserved for determination in possible other proceedings.
CONCLUSIONS OF LAW
Upon consideration of the Hearing Officer's recommended Order, exceptions filed by the Respondent, and having been fully advised in the premises, I reach the following conclusions of law
The Division of Administrative Hearings has concurrent jurisdiction with the Department of Insurance over the parties to and subject matter of this proceeding.
Section 120.60(2), Florida Statutes, deems approved an application which is not timely denied by an agency.
The facts establish that the application subject of this order was not timely denied.
Issuance of a Recommended Order is an appropriate action under the facts and law as presented in this action.
All facts necessary for the issuance of this Final Order were established in this cause.
That Respondent contends Petitioner does not meet the "seasoning" requirement of Section 626.918(2)(b), and this issue is still in dispute factually and legally.
That approval of Petitioner as an eligible surplus lines insurer is not within the prerogative of the Department of Insurance, as much has been accomplished by action of law.
That issues of fact remain with regard to Petitioner's qualification for licensure which have not been addressed or resolved in this case, and which may be raised in a subsequent proceeding.
WHEREFORE, it is ORDERED:
That Petitioner T.H.E. INSURANCE COMPANY, INC., be listed as an eligible surplus lines insurer.
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 petitioner or notice of appeal with the Central Counsel, acting as 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 13th day of April, 1988.
BILL GUNTER
Insurance Commissioner and State Treasurer
ANN WAINWRIGHT
Assistant Insurance Commissioner and Treasurer
Copies Furnished:
STEVEN M. MOLONO Esquire CHARLES T. COLLETT, Esquire
Post Office Tallahassee, Florida (Registered Mail)
MICHAEL C. GODWIN, Esquire
Department of Insurance 413-B Larson Building
Tallahassee, Florida 3 2399-0300
LARRY J. SARTIN, Esquire
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Docket for Case No: 87-003092
Orders for Case No: 87-003092
| Issue Date |
Document |
Summary |
|
Apr. 13, 1988 |
Agency Final Order
|
|
|
Mar. 07, 1988 |
Recommended Order
|
Department failed to act on application for license within time required by 120.60(2). Recommended issuance of license.
|
