STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, ) AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2880

)

JOHN WALTER DREW, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 12, 1995.

APPEARANCES

For Petitioner: John R. Dunphy, Esquire, and

Michael McCormick Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Charles P. Hoskins, Esquire

Wells, Brown & Brady, P.A. Post Office Box 12584 Pensacola, Florida 32573-2584

STATEMENT OF ISSUES

The issue addressed in this proceeding is whether Respondent's life, health, life and health and general lines insurance agent's licenses should be suspended, revoked, or otherwise disciplined for violations of Chapter 626, Florida Statutes.

PRELIMINARY STATEMENT

On April 26, 1994, the Petitioner, Department of Insurance, filed an Administrative Complaint alleging that Respondent's insurance license should be disciplined for violating Chapter 626, Florida Statutes. Specifically, the Administrative Complaint alleged that the Respondent on two occasions had refused to insure consumers unless they purchased an ancillary product and/or had misrepresented the nature of that ancillary product which conduct violated:

1. Section 626.611(4), Florida Statutes (willful use of license to circumvent requirements or prohibitions of the code);

2. Section 626.611(5), Florida Statutes (willful misrepresentation of any insurance policy or willful deception with regard to any policy or contract);

   
   

3. Section 626.611(7), Florida Statutes (lack of fitness or trustworthiness to engage in the business of insurance);

   
   

4. Section 626.611(9), Florida Statutes (fraudulent or dishonest practices in the conduct of business under the license);

   
   

5. Section 623.611(13), Florida Statutes (willful failure to comply with or willful violation of any proper order or rule of the department or willful violation of any provisions of the code;

   
   

6. Section 626.621(2), Florida Statutes (violation of any provision of the code or of any other law applicable to the business of insurance in the course of dealing under the license or permit);

   
   

7. Section 626.621(6), Florida Statutes (engaging in unfair methods of competition or unfair or deceptive acts or practices or having otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest);

   
   

8. Sections 626.951 or 626.9561, Florida Statutes (unfair method of competition or unfair or deceptive act or practice involving the business of insurance);

   
   

9. Section 626.9541(1)(k)1, Florida Statutes (made false or fraudulent statements or representation on, or relative to, an application for insurance policy for the purpose of obtaining a fee, commission, money or other benefit);

   
   

10. Section 626.9541(1)(x)3, Florida Statutes (refusal to insure, or continue to insure, any individual because of the insured's failure to agree to place collateral business with any insurer);

    
    

11. Section 624.124, Florida Statutes (refusal to insure, or continue to insure any individual because of the insured's failure to purchase non- insurance services or commodities).

Respondent denied the allegations of the Administrative Complaint and requested a formal hearing. The case was forwarded to the Division of Administrative Hearings.

Petitioner twice sought leave to amend the Administrative Complaint to make changes in the statutes cited and "wherefore" portions of the Administrative Complaint. Both requests were granted and at final hearing the parties proceeded on the Second Amended Administrative Complaint.

At the hearing, Petitioner offered the testimony of six (6) witnesses and eight (8) exhibits into evidence. All of Petitioner's exhibits were entered into evidence with the exception of the November 19, 1993 letter referenced as Petitioner's Composite Exhibit #6.

Respondent testified in his own behalf and offered three (3) exhibits into evidence. All of Respondent's exhibits were admitted.

Petitioner and Respondent submitted their Proposed Recommended Orders on February 28, 1995. The parties' proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is currently licensed in this state as a life agent, as a health agent, as a life and health agent, and as a general lines agent, Respondent was so licensed in 1993.

   
   

2. In 1993, Respondent was doing business as John Drew Insurance Group (Group).

   
   

3. Group was and remains a general lines insurance agency located in Panama City, Florida.

   
   

4. Around October 4, 1993, Trilby L. Williams of Panama City, Florida phoned Respondent and sought a quotation for homeowners insurance on her mobile home. Respondent specifically requested a quotation for coverage on the mobile home. She did not seek any other insurance or non-insurance product or service from Respondent.

   
   

5. Respondent provided a phone quotation of $490.00. During the conversation Respondent described only coverage under the mobile home policy. He did not describe any other insurance coverage or membership in a travel or auto club.

   
   

6. Ms. Williams advised Respondent she would accept the quotation and made arrangements to go to Respondent's agency to complete the transaction.

   
   

7. Around October 6, 1993, Ms. Williams and her husband, Robert L. Williams went to the office of the Group. The Williams' met with Dana Baxter Watkins, an unlicensed employee of the agency working under Respondent's direct supervision and control. Respondent was not present. However, Ms. Watkins was expecting the Williams. Respondent had left her the Williams' file and paperwork for the mobile home insurance plus an ancillary product.

   
   

8. Mr. Williams signed an application for a mobile home insurance policy to be issued by American International Insurance Company through the Florida Residential Property and Casualty Joint Underwriting Association (FRPCJUA).

   
   

9. The premium for the mobile home policy was $400.00 which was tendered to Group by Robert and Trilby Williams.

   
   

10. Since Respondent had binding authority with the FRPCJUA, he bound the mobile home coverage effective October 6, 1993, at 9:45 A.M.

    
    

11. Ms. Watkins also had Robert L. Williams execute a contract for and purchase an American Travelers Association (ATA) ancillary product without the informed consent of Robert or Trilby Williams. Mr. and Ms. Williams were led to believe through Ms. Watkins' statements that they were required to purchase the ATA ancillary product in order to be eligible to purchase the mobile home coverage.

12. Ms. Watkins advised the Williams that "they didn't make any money on the homeowners' policies and that they had to sell this policy."

    
    

13. Ms. Watkins explained the ATA ancillary product as an accident benefit policy. The Williams understood the product to be some sort of accident insurance policy designed to provide Ms. Williams with benefits in the event Mr. Williams were to have an accident around their mobile home.

    
    

14. The fee for the ATA ancillary product was $90.00, which was paid to Group by Robert and Trilby Williams on October 6, 1993.

    
    

15. Robert and Trilby Williams believed that the entire $490.00 which they paid to Group on October 6, 1993, was premium monies required for the purchase of the mobile home insurance policy.

    
    

16. The ATA ancillary product is in fact a "motor club" membership as defined in Section 624.124, Florida Statutes, The motor club provides certain benefits of membership such as rewards to witnesses in the event of the theft of the member's private passenger vehicle, travel agency services, rental car discounts, and very circumscribed accidental death and dismemberment coverage for accidental death and qualifying dismemberments while the insured is a passenger in a private passenger automobile. An example of a qualifying dismemberment is the loss of a finger, but only if the digit is a thumb or index finger and only if it is severed through or above the joint closest to the wrist.

    
    

17. The cost of the ATA motor club varies from $20.00 to $100.00 depending on the level of benefits selected. Commissions on such products are approximately eighty (80) to ninety (90) percent of the price charged to the consumer.

    
    

18. Shortly after departing Respondent's agency Robert and Trilby Williams became concerned about having been required to purchase the ATA "policy". Ms. Williams telephoned Respondent to request a refund of the $90.00 fee they had paid.

    
    

19. Respondent informed Robert and Trilby Williams that they could not purchase the mobile home insurance policy without purchasing the ATA ancillary product and again reiterated that "they make very little or no profit selling homeowners or mobile home . . . insurance and that they needed this in order to make overhead."

    
    

20. When Ms. Williams, in a somewhat nasty manner, persisted in her request for a refund of the $90.00 ATA fee and threatened to contact the Department of Insurance, Respondent decided he did not wish to do business with the Williams and informed Ms. Williams that he would refund the entire $490.00. Respondent cancelled the American mobile home policy and refunded the entire

    $490.00 paid by the Williams. However, there was no question that Respondent would not have sold the mobile home insurance without the ATA club membership. At no time did either Williams' authorize the cancellation of the mobile home policy.

    
    

21. As a result of the cancellation, Mr. and Ms. Williams were without an insurance policy on their mobile home for approximately a week. Additionally, because the policy had been bound, the FRPCJUA was exposed to a risk of loss for that period of time for which they received no premium.

22. Around September 13, 1993, Doris Steen of Panama City, Florida phoned Respondent and sought a quotation for homeowners insurance on her mobile home. Respondent specifically requested a quotation for coverage on her mobile home. She did not seek any other insurance or non-insurance product or service from Respondent. Ms. Steen and her husband were members of another auto club and did not need a second membership.

    
    

23. Around September 15, 1993, Ms. Steen went to the office of the Group. She was met by Dana Baxter Watkins. Ms. Watkins had Ms. Steen's file and paperwork for mobile home coverage and membership in ATA.

    
    

24. Ms. Steen signed an application for a mobile home insurance policy to be issued by American through FRPCJUA.

    
    

25. The premium for said policy was $277.00, which was tendered to Group by Doris Steen. The coverages applied for were bound effective September 15, 1993.

    
    

26. Ms. Watkins also had Doris Steen purchase an ATA ancillary product without Doris Steen's informed consent. Ms. Steen was led to believe through Ms. Watkins' statements that she was required to purchase the ATA ancillary product as part of a package which included the mobile home policy and the one was not available without the other.

    
    

27. Ms. Watkins explained the ATA ancillary product as an accident and life insurance policy and Ms. Steen understood the product to be a life insurance policy to cover her if she were killed at her mobile home.

    
    

28. The fee for the ATA ancillary product was $100.00, which was paid to Group by Doris Steen on September 15, 1993.

    
    

29. The ATA ancillary product sold to Ms. Steen was the same motor club product sold to the Williams.

    
    

30. Dana Baxter Watkins was under the direct supervision of Respondent and was trained by Respondent to sell ATA motor club memberships in accordance with a routine business practice implemented by Respondent to increase his agency revenues.

    
    

31. In furtherance of the business practice Respondent developed a chart that indicated what price to charge for the ATA motor club given a particular premium level for the mobile home insurance being purchased. The higher the premium for the insurance the less the charge for the motor club. From the charge for the motor club, Respondent would back into the level of benefits provided rather than choosing a level of benefits and then determining the cost. In short, the cost of the ATA policy had nothing to do with the insured's needs.

    
    

32. Respondent instructed Ms. Watkins to give mobile home insurance quotations over the phone which included both the mobile home insurance premium and the cost of the motor club as determined by using the chart. No disclosure of the motor club was made at the time of the phone quotation. When consumers came into the office to purchase the coverage they were required to purchase the motor club in conjunction with the insurance and were lead to believe that the two items were a package.

    
    

33. The motor club was routinely misrepresented to be some sort of insurance product. In fact, Ms. Watkins was unaware that the ATA product was in

    fact a motor club rather than an insurance policy. Respondent focused on the accidental death and dismemberment benefit included with the memberships when describing the product to Ms. Watkins and to any consumer that questioned the paperwork. Respondent maintained his inaccurate description of the ATA product at the hearing.

    
    

34. Respondent justified the requirement to purchase the ATA motor club on the basis that his commission for the sale of mobile home insurance was too small to cover agency expenses and the sale of the motor club membership made up the small commission on mobile home insurance.

    
    

35. In the instant case, Respondent's acts and those undertaken by Ms. Watkins at his direction constituted routine, deceptive, fraudulent and unfair business practices in violation of Chapter 626, Florida Statutes. The deceptive, fraudulent aspect of Respondent's practice makes the violations particularly serious. Respondent offered no credible evidence of mitigation for his business practice.

    
    

36. Respondent was disciplined by the Department in 1976 for charging a cancellation fee in violation of the Florida Insurance Code. There he justified the charge on the basis that he was not adequately compensated by commission when policies were cancelled mid-term.

    
    

37. Respondent was again disciplined by the Department in 1992 for having collected a "consulting fee" in violation of the Florida Insurance Code.

    
    

38. Given the deceptive, fraudulent nature of Respondent's business practice and the previous discipline of Respondent's license, Respondent's license should be revoked.

    
    

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings, through its duly appointed Hearing Officer, has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

40. In license discipline cases, Petitioner has the burden to prove by clear and convincing evidence the allegations of the Administrative Complaint. See, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

41. The Administrative Complaint alleges that Respondent violated Sections 626.611(4), 626.611(5), 626.611(7), 626.611(9), 626.611(13), 626.621(2), 626.621(6), 626.9521, 626.9541(1)(k)1., 626.9541(1)(x)3., and 626.9541(1)(x)4., Florida Statutes. These sections provide as follows:

    
    

    626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, title agency's, solicitor's, adjuster's, customer representative's, service representative's managing general agent's or claims investigator's license or appointment.

    1. If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [Section 626.611(4), Florida Statutes]

    2. 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. [Section 626.611(5), Florida Statutes]

    3. Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7), Florida Statutes]

    4. Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes]

    5. 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 626.611(13), Florida Statutes]

    
    

    626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, title agency's, solicitor's., adjuster's, customer representative's, service representative's, managing general agent's or claims investigator's license or appointment.

    1. 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 appointment. [Section 626.621(2), Florida Statutes]

    2. In the conduct of business under the license or appointment, 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. [Section 626.621(6), Florida Statutes]

    
    

    626.9521 No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to s. 626.951 or s. 626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance.

    Any person who violates any provision of this part shall be subject to a fine in an amount not greater than $2,500 for each nonwillful violation and not greater than $20,000 for each willful violation.

    Fines under this section may not exceed an aggregate amount of $10,000 for all nonwillful violations arising out of the same action or an aggregate amount of $100,000 for all nonwillful violations arising out of the same action. The fines authorized by this subsection may be imposed in addition to any other applicable penalty.

    1. Made false or fraudulent statements or representation on, or relative to, an application for an insurance policy for the purpose of obtaining a fee, commission, money or other benefit from any insurer, agent, broker or individual. [Section 626.9541(1)(k)1., Florida Statutes]

    2. In addition to other provisions of this code, the refusal to insure, or continue to insure, any

       individual or risk solely because of: The insured's or applicants failure to agree to place collateral business with any insurer, unless the coverage applied for would provide liability coverage which is excess over that provided in policies maintained on property or motor vehicles. [Section 626.9541(1)(x)3., Florida Statutes]

    3. In addition to other provisions of this code, the refusal to insure, or continue to insure, any individual or risk solely because of: The insured's or applicants failure to purchase noninsurance services or commodities, including automobile services as defined in s. 624.124. [Section 626.9541(1)(x)4., Florida Statutes]

    
    

42. In this case, the ATA ancillary products sold to the Williams and Ms. Steen were automobile services (motor clubs) as defined in Section 624.124, Florida Statutes which included an accidental death and dismemberment benefit as contemplated in Section 624.124(2), Florida Statutes. Respondent misrepresented these motor clubs to these consumers as well as the agency's unlicensed staff as being insurance policies in violation of Sections 626.9521 and 626.9541(1)(k)1., Florida Statutes as well as Sections 626.611(b),(c),(d), Florida Statutes. The misrepresentations were designed to maximize the sale of the motor clubs which paid substantial commissions to Respondent's personal benefit.

    
    

43. The misrepresentation of the motor clubs as insurance had the added effect of depriving these consumers of most of the limited benefits of membership in the motor clubs. These consumers would never have known to seek travel planning assistance, reward money to assist in the recovery of their stolen vehicle or other motor club benefits because they didn't know they had become members of a motor club. Further, in the unlikely event that they had suffered a qualifying dismemberment, such as the loss of a finger (only if through or above the joint closest to the wrist on the thumb or index finger and while riding in a private passenger automobile) they would not have known to file a claim because they were led to believe that the "accident" had to occur in or around their mobile home.

    
    

44. Respondent required Ms. Steen and the Williams' to purchase the motor clubs, non-insurance services, as a condition precedent to the sale of mobile home insurance policies in violation of Sections 626.9521 and 626.9541(1)(x)4., Florida Statutes. Respondent even went so far as to pursue an unauthorized cancellation of the Williams' mobile home insurance as a result of their insistence on a refund of the fees they paid for the motor club.

    
    

45. Respondent's unauthorized cancellation of the Williams' mobile home insurance policy not only placed them in jeopardy of an uninsured loss, or at a minimum a significant claims dispute, but also constituted a material misrepresentation to the insurer. This misrepresentation placed the insurer in the situation of potentially covering a loss for which they received no premium and clearly left the door open for a significant claims dispute in the event of a loss.

    
    

46. Because an element of the motor club membership is an accidental death and dismemberment benefit, Respondent's refusal to insure and his refusal to continue to insure in the case of the Williams constitutes an additional violation of Section 626.9521, Florida Statutes under Section 626.9541(1)(x)3.

47. Respondent's past disciplinary history evinces his dissatisfaction with the commissions he receives from insurers for the sale of insurance and his varied efforts to circumvent the insurance code to find a way to supplement those commissions.

    
    

48. In Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984), the court stated that the business of insurance is "greatly affected by the public trust" and points out that "the holder of an agent's license stands in a fiduciary relationship to both the client and the insurance company." Natelson at 31. Respondent here has abused that trust and placed his own financial gain over the needs of his clients by misrepresenting products, requiring the purchase of products that his client has no desire or need to purchase, and by cancelling the Williams' mobile home insurance without their knowledge or consent. Perhaps the best evidence of Respondent's selfish motives is the testimony of Dana Watkins and Respondent's use of a homemade chart to back into the cost and benefit levels for the motor clubs sold based on the amount of legitimate insurance sold.

    
    

49. Section 626.611, Florida Statutes and Chapter 4-231.030 and 4-231.160, Florida Administrative Code set both the penalties and discipline to be imposed on a licensee for violation of the insurance code. These provisions state:

    
    

    Section 626.611, Florida Statutes

    The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, solicitor, adjuster, customer representative, service representative, managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following is applicable:

    1. Lack of one or more of the qualifications for the license or appointment as specified in this code.

    2. Material misstatement, misrepresentation, or fraud in obtaining the license or appointment or in attempting to obtain the license or appointment.

       * * *

       (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.

       * * *

       1. Demonstrated lack of fitness or trustworth- iness to engage in the business of insurance.

       2. Demonstrated lack of reasonable adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment.

       3. Fraudulent or dishonest practices in the conduct of business under the license or appointment.

       (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.

       
       

       Chapter 4-231.030 Definitions.

       The following definitions shall apply for purposes of this rule chapter.

       1. "Administrative Complaint" refers to formal administrative charges filed by the Department against a licensee. The charges consist of factual allegations with citations to violations of the Insurance Code, Department rules or orders grouped together in one or more counts.

       2. "Count" refers to a series of one or more numbered paragraphs of factual allegations in an administrative complaint that are grouped together under the word "Count" followed by a Roman numeral and which are set apart from other counts in an administrative complaint, which relate to a single transaction or occurrence, and which if true would constitute a violation of one or more provisions of the Insurance Code.

       3. "Convicted" means adjudicated guilty by a court.

       4. "Department" means the Florida Department of Insurance.

       5. "Final penalty" means the penalty actually imposed on a licensee.

       6. "Penalty per count" refers to the penalty to be assessed for a single count which shall be equal to the highest stated penalty in the count for all violations proven.

       7. "Stated penalty" means the penalty set forth in rules 4-231.080 through 4-231.150.

       8. "Total penalty" refers to the sum of the highest stated penalty for each count.

       
       

       Chapter 4-231.160, Florida Administrative Code Aggravating/Mitigating Factors.

       
       

50. The Department shall consider the following aggravating and mitigating factors and apply them to the total penalty in reaching the final penalty assessed against a licensee under this rule chapter. After consideration and application of these factors, the Department shall, if warranted by the Department's consideration of the factors, either decrease or increase the penalty to any penalty authorized by law.

    
    

    1. For penalties other than those assessed under rule 4-231.150:

       1. willfulness of licensee's conduct;

       2. degree of actual injury to victim;

       3. degree of potential injury to victim;

       4. age or capacity of victim;

       5. timely restitution;

       6. motivation of agent;

       7. financial gain or loss to agent;

       8. cooperation with the Department;

       9. vicarious or personal responsibility;

       10. related criminal charge; disposition;

       11. existence of secondary violations in counts

       12. previous disciplinary orders or prior warning by the Department; and

       13. other relevant factors.

       
       

51. In this case, Respondent's actions were knowing and willful as evidenced by his creation of a chart to set the amount of motor club fees in an inverse proportion to the amount of legitimate insurance premium collected. His actions in cancelling the Williams' mobile home coverage without their consent posed substantial potential for injury to both the Williams' and the FRPCJUA.

    
    

52. Additionally, the agent's motivation was for his own pecuniary gain and his actions were undertaken with disregard for the potential harm to his clients and the FRPCJUA. The Total Penalty in this case for Respondent's violations is suspension in excess of two years. However, Section 626.641(1), Florida Statutes, limits the time period of any suspension to two (2) years. The Total Penalty is based on the most severe penalty provided for any one violation within each count.

    
    

53. Further, this is Respondent's third disciplinary sanction due to violations of the Florida Insurance Code. While the violations may have been factually unique, they each were motivated by the same need of Respondent to circumvent the statutory plan established by the legislature to limit agent compensation for the sale of insurance to the commissions they receive from the insurers.

    
    

54. Therefore, given the absence of mitigating factors in this case, the presence of aggravating factors, and a Total Penalty exceeding the statutory maximum the appropriate penalty in this case is revocation of all of Respondent's licenses.

    
    

55. Finally, the multiple violations of Section 626.9521, Florida Statutes, carry with them monetary penalties which are to be imposed "in addition to any other applicable penalty." Because the violations are willful the monetary penalty provided in the statute ranges from $2,500 to $20,000 per violation not to exceed $100,000 in the aggregate. The appropriate monetary penalty to be imposed in this matter in addition to the revocation of Respondent's license is $5,000.

RECOMMENDATION

Based upon the foregoing Findings of Fact and the Conclusions of Law, it is accordingly,

RECOMMENDED that Respondent, John Walter Drew, be found guilty of the violations set forth in the Conclusions of Law portion of this Order and that the Respondent's license as an insurance agent in this State be revoked and he be ordered to pay a fine of $5,000 within thirty (30) days of entry of the Final Order in this matter.

DONE and ENTERED this 5th day of April, 1995, in Tallahassee, Florida.

DIANE CLEAVINGER

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 5th day of April, 1995.

APPENDIX

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 of Petitioner's proposed findings of fact are adopted in substance, insofar as material.

2. The facts contained in paragraphs 3 and 11, are adopted in substance, insofar as material.

3. Paragraphs 1, 2, 6, 7, 8 and 9 of Respondent's proposed findings of fact pertain to either procedural matters or are legal argument.

4. The facts contained in paragraphs 4, 5, 10, 12, 13, 14, and 18 of Respondent's proposed findings of fact are subordinate.

5. The facts contained in paragraphs 15, 16, and 17 of Respondent's proposed findings of fact were not shown by the evidence.

COPIES FURNISHED:

John R. Dunphy, Esq. Michael McCormick, Esq. Division of Legal Services 612 Larson Bldg.

Tallahassee, FL 32399-0333

Charles P. Hoskins, Esq. Wells, Brown & Brady, P.A.

P. O. Box 12584 Pensacola, FL 32573-2584

Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Dan Sumner

Acting General Counsel Dept. of Insurance

The Capitol, PL-11 Tallahassee, FL 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.

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DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JOHN WALTER DREW, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 95-2112

DEPARTMENT OF INSURANCE DOAH CASE NO. 94-2880 AND TREASURER,

Appellee.

/ Opinion filed December 5, 1995.

An appeal from Order of the Department of Insurance.

Charles P. Hoskin of Wells, Brown & Brady, P.A., Pensacola, for Appellant.

John R. Dunphy of Department of Insurance and Treasurer, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

ALLEN, KAHN and DAVIS, JJ., CONCUR.

Docket for Case No: 94-002880

Orders for Case No: 94-002880