STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5816

) ALLEN FRANKLIN MEREDITH, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on February 2, 1990, in Lakeland, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gordon T. Nicol, Esquire

412 Larson Building Tallahassee, FL 32399-0300

For Respondent: Allen Franklin Meredith, pro se

140 Flamingo Drive Auburndale, FL 33823

STATEMENT OF THE ISSUE

The issue in this case is whether the license of Allen Franklin Meredith (Respondent) should be disciplined by the Department of Insurance and Treasurer (Petitioner) for allegedly allowing others to use his general lines insurance agent license, and to sign his name to insurance policy applications while Respondent was not present, as more particularly set forth in the Administrative Complaint issued herein on or about October 12, 1989.

PRELIMINARY STATEMENT

At the hearing, the Petitioner called Gordon Rowan, May Satava, and Luis Rivera. The Respondent testified on his own behalf. Six exhibits were received on behalf of the Petitioner.

The transcript of the final hearing was filed on February 22, 1989, and the parties were allowed ten days thereafter within which to file proposed recommended orders. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed, and eligible for licensure, in the State of Florida as a life and health insurance agent, health insurance agent, and a general lines insurance agent.

   
   

2. During April, 1989, Respondent approached Gordon Rowan, owner of Gordon Rowan Real Estate and Insurance in Winter Haven, Florida, to inquire whether Rowan would assist Respondent in obtaining a renewal of his general lines insurance agent license. Respondent was residing with his family in Georgia at the time, and told Rowan that his Florida general lines agent license was about to expire, and he needed to get licensed with a Florida company in order to apply for renewal. Rowan agreed to pay for Respondent's renewal fee, and for licensing him with a Florida Company doing business through Rowan's agency.

   
   

3. On or about April 30, 1987, Rowan applied to National Insurance Associates for licensure on behalf of Respondent, and paid the applicable license fee. On or about May 20, 1987, Respondent was licensed with National Insurance Associates as a general lines insurance agent, and his Florida general lines license was renewed.

   
   

4. Respondent admitted in an affidavit executed on November 16, 1987, that he did authorize Rowan to use his general lines license from the beginning of May to the end of June, 1987, while he was still living in Georgia. This authorization was in exchange for Rowan's assistance in obtaining Respondent's licensure with National Insurance Association, and renewal of his Florida license.

   
   

5. However, at hearing Respondent testified that he never authorized Rowan to "use" his license, only to "place" his license with Rowan's agency. Rowan testified that Respondent had, in fact, told him that he could use his license and write business under it, including signing Respondent's name to policy applications, even though Respondent was not in the office and did not participate in these transactions. Rowan's assistant, May Satava, was present when Rowan and Respondent discussed their arrangement, and confirmed Rowan's testimony.

   
   

6. Based upon the demeanor of the witnesses, as well as the affidavit executed by the Respondent shortly after the events involved in this matter, it is found that Respondent's uncorroborated testimony at hearing is not credible, while that of Rowan and Satava is found to be credible and consistent with statements made to Luis Rivera, the Petitioner's investigator, in October, 1987. Respondent did tell Rowan that he could use his general lines license to write business, and to sign his name to applications in exchange for Rowan's assistance in obtaining the renewal of his Florida general lines agent license.

   
   

7. Working under Rowan's control and supervision, Satava did sign Respondent's name to approximately 48 policy applications from May through July, 1987, while Respondent actually signed only 3 additional policy applications during this period. Thus, the vast majority of business written under Respondent's license during this time was actually completed by Satava, an unlicensed person working under the control and supervision of Rowan, without any involvement of Respondent, pursuant to his agreement with Rowan that Rowan could use his license.

   
   

8. Respondent did receive a commission payment in the amount of $200 from Rowan for June and July commissions. This represented Rowan's estimate of a

   reasonable payment to Respondent for the use of his license during this time when Satava signed Respondent's name to approximately 48 policy applications.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. Since this is a case in which the Petitioner is seeking to discipline the Respondent's license, and could thereby adversely affect his ability to continue to engage in the insurance business, Petitioner has the burden of establishing the basis for license disciplinary action by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In order to meet this clear and convincing standard, "The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established." Evans Packing Co. v. Department of Agriculture and Consumer Services, 14 FLW 2326, 2327, n.5 (Fla. 1st DCA 1989), citing Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

10. As it relates to the evidence adduced at hearing, the Petitioner has charged Respondent with violating Sections 626.441, 626.611(4),(7),(9),(13), and 626.621(2), Florida Statutes, which provide in pertinent part, as follows:

    
    

    Section 626.441 License or permit; transferability A license or permit issued under this part

    is valid only as to the person named and is not transferable to another person.

    Section 626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, solicitor's or adjuster's license .

    The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent . . . if it finds that as to the applicant, licensee, or permittee any one or more of the applicable grounds exists:

    (4) If the license or permit is willfully used,

    or to be used, to circumvent any of the requirements or prohibitions of this code.

    (7) Demonstrated lack of fitness or trust- worthiness 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.

    * * *

    Section 626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's or adjuster's license.

    The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license

    of any agent . . . if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exists .

    (2) Violation of any provision of this code or of any other law applicable to the business of

    insurance in the course of dealing under the license or permit.

    
    

11. Petitioner has proven, by clear and convincing evidence, that Respondent violated Sections 626.411, 626.611(4), (9) and (13), and 626.621(2), Florida Statutes, by authorizing Rowan to use his general lines insurance agent license to conduct business while he was not present, and to sign his name to 48 policy applications from May through July, 1987, in which he had absolutely no involvement. Respondent clearly intended that Rowan use his license in return for Rowan's assistance in renewing his Florida license, and as such, his conduct was a knowing and willful violation of these provisions of the Insurance Code.

    
    

12. It has been recognized that the Petitioner has broad discretion in defining and identifying what conduct by a licensee demonstrates a lack of fitness or trustworthiness to engage in the business of insurance. In Natelson

    v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984), rev. den. 461 So.2d 115, the licensee distributed, and possessed with intent to distribute, cannabis, and such conduct was held to be a proper basis for a finding of a violation of Section 626.611(7). Similarly, in Paisley v. Department of Insurance, 526 So.2d 167 (Fla. 1st DCA 1988), the licensee conspired to commit mail fraud, and used a fictitious name and address to commit mail fraud, and this was found to be a proper basis for the Petitioner's conclusion that the licensee had violated Section 626.611(7).

    
    

13. In this case, Respondent knowingly and willfully allowed another person to use his license to conduct the business of insurance, and to sign his name to policy applications in his absence. He did this for personal benefit, including obtaining license renewal in Florida and receiving a commission payment in the amount of $200. These actions by Respondent constitute a proper basis for a finding that he has demonstrated a lack of fitness or trustworthiness to engage in the insurance business, because they are similar to actions judicially sanctioned as establishing a basis upon which a violation of Section 626.611(7) can be found. While Petitioner has cited no rule or statute which define the terms used in Section 626.611(7), the facts of this case demonstrate a violation of the plain meaning of the words used in this provision. Thus, it is concluded that Petitioner has established, by the requisite degree of proof, that Respondent has also violated Section 626.611(7), Florida Statutes.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order suspending Respondent's general lines agent license, and eligibility for licensure, for a period of six months.

DONE AND ENTERED this 9th Florida.

day of March, 1990 in Tallahassee,

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1990.

APPENDIX

Rulings on the Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1.

1. Adopted in Finding 2.

2. Adopted in Finding 3. 5-6. Adopted in Finding 6.

1. Adopted in Finding 7.

2. Adopted in Finding 8.

Respondent did not file Proposed Findings of Fact.

COPIES FURNISHED:

Gordon T. Nicol, Esquire

412 Larson Building Tallahassee, FL 32399-0300

Allen Franklin Meredith

140 Flamingo Drive Auburndale, FL 33823

Don Dowdell, Esquire General Counsel Department of Insurance The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Hon. Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, FL 32399-0300

Docket for Case No: 89-005816

Orders for Case No: 89-005816