STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2243

)

BRIAN CRAIG PARKER, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 17, 1993, a formal administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph D. Mandt, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue in this case is whether the Florida Insurance Commissioner should discipline the Respondent, Brian Craig Parker, for alleged violations of the Insurance Code.

PRELIMINARY STATEMENT

On or about March 25, 1993, the Florida Insurance Commissioner filed an Administrative Complaint against the Respondent, Brian Craig Parker, in Department of Insurance Case No. 93-L-083JDM. Count I related to the Respondent's alleged dealings with Christine Gamse; Count II related to the Respondent's dealings with Donald Naegele.

On or about April 19, 1993, the Respondent filed an Election of Rights form disputing the facts and requesting formal administrative proceedings. On or about April 22, 1993, the Department referred the matter to the Division of Administrative Hearings.

Initially, the case was scheduled for final hearing on June 17, 1993, but the Department moved to have the case held in abeyance pending the finalization of a settlement between the parties. However, the settlement was not finalized and, on or about September 3, 1993, the Department requested that the case be

taken out of abeyance status and rescheduled for final hearing. On September 9, 1993, a Second Notice of Hearing was issued scheduling final hearing for November 17, 1993.

The Respondent did not appear for final hearing. The Department called Donald Naegele and an insurance company representative, who testified by telephone. The Department also had Petitioner's Exhibits 1 and 2 admitted in evidence.

Petitioner's Exhibit 1 was identified as the affidavit of the notary who swore the witness who testified by telephone. The Department was to file the exhibit after the hearing. As of February 22, 1994, Petitioner's Exhibit 1 had not been filed.

The Department also moved for a continuance to allow it to take a deposition of Christine Gamse and to file the deposition transcript after the hearing as Petitioner's Exhibit 3. Without objection, the motion was granted. The parties were given ten days from the filing of Petitioner's Exhibit 3 in which to file proposed recommended orders.

On or about January 20, 1994, the Department filed a Motion to Close Record, stating that it was unable to schedule the intended deposition and would not be filing Petitioner's Exhibit 3.

Neither party timely filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent, Brian Craig Parker, is a licensed health and life insurance agent. He had a contract with Denticare appointing him to act as Denticare's agent in selling prepaid dental insurance.

   
   

2. On or about March 19, 1992, the Respondent, acting as an insurance agent, met with Christine Gamse and accepted her application for Denticare coverage and her check in the amount of $75, representing a $60 premium, plus a

   $15 "policy fee." The Respondent never submitted Gamse's Denticare application or premium to the insurer.

   
   

3. In May, 1992, Gamse complained to Denticare that she still was not covered. Denticare confirmed that Gamse was not covered and offered to telephone the Respondent. When contacted by Denticare, the Respondent stated that he thought he had sent the application and premium to Denticare but that he had been very busy and that his recall was sketchy. Denticare had Gamse reapply directly to Denticare.

   
   

4. On or about April 3, 1992, the Respondent, acting as an insurance agent, met with Donald Naegele for the purpose of presenting two dental insurance policies. Naegele decided to apply for Denticare dental insurance. The Respondent advised Naegele to write the Respondent a check in the amount of

   $104 to accompany Naegele's insurance application, representing a $89 premium, plus a $15 "policy fee." The Respondent told Naegele that he would submit the application by April 20 and that Naegele's coverage would be effective on May 1, 1992.

   
   

5. The Respondent negotiated Naegele's check on or about April 7, 1992, but he never submitted Naegele's Denticare application or premium to the insurer.

6. On or about May 1, 1992, Naegele attempted to use Denticare to pay for dental services and was informed that he was not covered by Denticare. He telephoned the Respondent several times and left messages on an answering machine but none were returned. He then telephoned Denticare, and it was confirmed that Naegele was not covered. Denticare offered to telephone the Respondent to resolve the matter.

   
   

7. Soon after telephoning Denticare, Naegele got a telephone call from the Respondent, who offered to refund Naegele's $104. Within a few days, Naegele received the Respondent's check for the refund.

   
   

8. Under the Respondent's agency contract with Denticare, the Respondent was not authorized to charge a policy fee. The Respondent's commission for Denticare policies was to be paid by Denticare out of the initial premium. Although the contract allowed the agent to ask for additional compensation, the Respondent did not do so, and Denticare would not have allowed him to charge a

   $15 policy fee.

   
   

9. Under the Respondent's contract with Denticare, the Respondent was to promptly submit applications and premiums received from insureds. If Denticare received an application and premium by the 20th of the month, coverage would be effective on the 1st of the following month. If the Respondent had timely submitted their applications and premiums, both Gamse and Naegele would have had coverage by May 1, 1992.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 626.611, Fla. Stat. (1993), requires the Florida Insurance Commissioner to suspend or revoke the eligibility of licensees to hold an insurance agent license or appointment on the grounds set out in the statute's subsections.

    
    

11. Section 626.611(9), Fla. Stat. (1993), prohibits fraudulent or dishonest practices by an insurance agent in the conduct of business under the agent's insurance license or appointment. It is concluded, especially in the absence of any rebuttal or explanation, that the Respondent violated that statute by charging a policy fee for the Gamse and Naegele policies when none was required or authorized.

    
    

12. Section 626.611(10), Fla. Stat. (1993), prohibits misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received by an insurance agent in the conduct of business under the agent's insurance license or appointment. It is concluded, especially in the absence of any rebuttal or explanation, that the Respondent violated that statute by not timely submitting the Gamse and Naegele applications and premiums and by charging them a $15 policy fee.

    
    

13. Section 626.621(2), Fla. Stat. (1993), also authorizes the Insurance Commissioner to suspend or revoke the eligibility of licensees to hold an insurance agent license or appointment for other violations of the Insurance Code.

    
    

14. Section 626.9521, Fla. Stat. (1993), prohibits unfair methods of competition and unfair or deceptive acts or practices involving the business of insurance.

15. Section 626.9541(1)(o)(2), Fla. Stat. (1993), makes it an unfair method of competition and an unfair or deceptive act or practice to knowingly collect as a premium or charge for insurance any sum in excess of (or less than) the premium or charge applicable to such insurance, in accordance with rates either as filed, as specified in the policy or as fixed by the insurer. By charging Gamse and Naegele a $15 policy fee in addition to the insurer's premium charge, the Respondent engaged in an unfair method of competition and an unfair or deceptive act or practice involving the business of insurance.

    
    

16. The other alleged violations either were not proven or are cumulative and superfluous.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order revoking the license of the Respondent, Brian Craig Parker, to act as a health or life insurance agent in the State of Florida.

RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1994.

COPIES FURNISHED:

Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Brian Craig Parker 4004 Bainwood Court

Tampa, Florida 33614

Brian Craig Parker 15713 Woodcock Place

Tampa, Florida 33624

Tom Gallagher

State Treasurer & Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil General Counsel

Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Insurance written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Insurance concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-002243

Orders for Case No: 93-002243