STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

) Case No. 90-5029

)

ROBERT HENRY JONES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on November 16, 1990, in Rockledge, Florida, before Joyous D. Parrish, a Hearing Officer with the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Willis F. Melvin, Jr.

Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

For Respondent: Robert Henry Jones, pro se

1054 Revilla Lane

Rockledge, Florida 329155 STATEMENT OF THE ISSUES

The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated July 12, 1990; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on July 12, 1990, when the Department of Insurance and Treasurer (Department) filed an administrative complaint against the Respondent and alleged Violations of Chapter 626, Florida Statutes. More specifically, the complaint alleged that Respondent had failed to remit premiums received in his fiduciary capacity; had demonstrated a lack of' fitness or trustworthiness to engage in the business of insurance; had misappropriated monies belonging to another; had willfully failed to comply with a rule of the Department; had violated any provision of the insurance code; and had engaged in unfair methods of competition or in unfair or deceptive acts or practices or otherwise shown himself to be a source of injury or loss to the public or detrimental to the public. The Respondent disputed the allegations of fact and requested a hearing in connection with the charges. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on August 14, 1990.

At the hearing, the Department presented the testimony of Lewis C. Webb, Respondent's former employer. Admitted into evidence were the Department's exhibits numbered 1 and 2. The Respondent testified in his own behalf and offered one exhibit which was admitted into evidence.

A transcript of the hearing was filed on December 3, 1990. The parties filed proposed recommended orders which have been considered in the preparation of this recommended order. Specific rulings on the proposed findings of fact arc included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. Currently the Respondent is eligible for licensure and is licensed in Florida as a life and health agent.

   
   

2. At all times material to the allegations of this case, the Respondent was eligible for licensure and licensed as a life and health agent and a general lines agent.

   
   

3. At all times material to the allegations of this case, the Respondent was employed by Lewis C. Webb and served as an authorized sales agent for Allstate Insurance Company.

   
   

4. During his employment with Allstate, Respondent received premium payments from insurance applicants and policy holders. Contrary to company policy, Respondent did not immediately remit premium payments to the insurer.

   
   

5. During the period March 6, 1989 through July 14, 1989, the Respondent received approximately $4700.00 from Allstate customers but failed to remit the monies to the company.

   
   

6. On or about July 19, 1989, the Respondent executed a statement which provided, in part: "I am authorized by the Company to accept both cash and checks from Allstate customers. I understand I am required to submit the money from customers daily." The statement also listed specific monies which Respondent acknowledged he had received. Those monies totalled $4255.65.

   
   

7. At the time Respondent gave the statement described above, he tendered

   $500.00 and the paperwork related to those monies to Mr. Webb. Further, Respondent acknowledged that he had a drug and alcohol abuse problem which had limited his ability to timely complete the paperwork associated with the premiums received. Respondent offered to remit all monies owed to Allstate at that time (on or about July 19, 1989).

   
   

8. Subsequently, Respondent completed a drug and alcohol treatment program and is currently employed by Ken Dimond & Associates, Inc. selling both life and health insurance.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. Section 626.561, Florida Statutes, requires an insurance agent to account for and pay all premiums received in the course of business to the insurer, insured, or other persons entitled to the funds.

    
    

11. The grounds for discretionary refusal, suspension, or revocation of an insurance agent's license are listed in Section 626.621, Florida Statutes.

    Among the grounds is the prohibition against violating a provision of the insurance code

    
    

12. In this case, the Department has established by clear and convincing evidence that the Respondent failed to timely remit premium monies paid to him for which he was required to submit appropriate paperwork in violation of Section 626.561, Florida Statutes. Respondent's explanation that his drug and alcohol problems prevented him from completing his work, has been deemed credible but does not excuse his conduct nor expunge the violation.

    
    

13. The Department has not established that the Respondent willfully misappropriated funds or that company funds were converted to Respondent's personal use. Respondent's offer to remit all premiums owed to Allstate at the time of his dismissal by that company reflects his willingness to meet his statutory obligations.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Insurance and Treasurer enter a final order finding the Respondent, Robert Henry Jones, guilty of violating Section 626.621, Florida Statutes, and suspending his license and eligibility for licensure for a period of six months.

DONE AND ENTERED this 17 day of January, 1991, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17 day of January, 1991.

APPENDIX TO CASE NO. 90-5029

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 3 are

2. With regard to paragraph 4 it is accepted as a correct statement of the statement executed by Respondent; however, Respondent's explanation has been deemed creditable as to the monies not remitted in a timely and appropriate manner. It is accepted that Respondent attempted to repay the monies owed to Allstate.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraph 1 is accepted.

2. Paragraph 2 is rejected as contrary to the weight of the evidence.

3. Paragraphs 3 through 7 are accepted but are irrelevant.

4. Paragraphs 8 through 13 are accepted.

COPIES FURNISHED:

Robert Henry Jones 1054 Revilla Lane

Rockledge, Florida 32955

Willis F. Melvin, Jr. Division of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Hon. Tom Gallagher State Treasurer and Insurance Commissioner

The Capitol--Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell General Counsel

Department of Insurance and Treasurer

The Capitol--Plaza Level Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005029

Orders for Case No: 90-005029