STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF THE TREASURER, ) DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6369

)

STEPHEN PAUL PLATT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on January 19, 1995, by videoconference.

APPEARANCES

For Petitioner: Michael K. McCormick, Esquire

Lisa S. Santucci, Esquire Department of Insurance

and Treasurer, Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Stephen Paul Platt, pro se

10640 Northwest 27th Street, Number 101

Miami, Florida 33172 STATEMENT OF THE ISSUE

At issue is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated September 23, 1994, petitioner charged that respondent violated the provisions of Sections 624.11(1), 624.611(4), (7), (8) and (9), 626.621(2) and (3), 626.931(1), 626.935(1)(d) and 626.936, Florida

Statutes, by failing to file a quarterly surplus lines report within the time required by law. In response, respondent filed an election of rights disputing the allegations set forth in the administrative complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called Carolyn M. Daniels as a witness, and its exhibit 1 was received into evidence. Respondent testified on his own behalf, but offered no exhibits.

The transcript of hearing was not ordered. Accordingly, the parties were granted ten days from the date of hearing to file proposed recommended orders. Petitioner elected to file such a proposal, and its proposed findings of fact are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times pertinent hereto, respondent, Stephen Paul Platt, was licensed by respondent, Office of the Treasurer, Department of Insurance (Department), as a general lines insurance agent and surplus lines insurance agent.

   
   

2. On or about March 15, 1994, the Department mailed to the respondent the necessary forms for filing the First Quarter 1994 surplus lines report and instructions to remit the taxes due pursuant to that report. Under existent law, such report was to be filed with the Department on or before April 30, 1994.

   
   

3. Respondent did not file his quarterly report with the Department until June 3, 1994; however, respondent had incurred no tax liability for that quarter, and no taxes were due.

   
   

4. At hearing, respondent acknowledged his obligation to file the quarterly reports in a timely fashion, but requested relief here based on the complicated pregnancy his wife experienced while carrying their fourth child, as well as the complications that occurred during and post delivery. According to respondent, whose testimony is credited, his fourth child was born April 21, 1994, and in the two weeks preceding the child's delivery, as well as the two or so weeks after the delivery, he was not in the office but, rather, was attendant to his wife and child during this difficult delivery. Given such circumstances, the nominal delay that occurred in filing the First Quarter 1994 surplus lines report, especially since no tax was due, should, except for a nominal fine, be excused.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

   
   

6. At issue in this proceeding is whether respondent failed to timely file the First Quarter 1994 surplus lines report, and thereby violated the provisions of Sections 624.11(1), 626.611(4) (7), (8) and (9), 626.621(2) and (3), 626.931(1), 626.935(1)(d) and 626.936, Florida Statutes, as alleged in the administrative complaint. In cases of this nature, the petitioner bears the burden of proving its charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 492 So.2d 797, 800 (Fla. 4th DCA 1983).

   
   

7. Moreover, in determining whether the pertinent law has been violated, one "must bear in mind that it is, in effect, a penal statute . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . .

   licensee." Lester v. Department of Professional and Occupational Regulations,

   348 So.2d 923, 925 (Fla. 1st DCA 1977). Finally, the disciplinary action taken can be based only upon the facts specifically alleged in the administrative complaint. See, Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987), and Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).

   
   

8. Here, the administrative complaint charges that respondent's failure to timely file the First Quarter 1994 surplus lines report violated the following statutory provisions:

   
   

   624.11 Compliance required.--

   (1) No person shall transact insurance in this state, or relative to a subject of insurance resident, located, or to be performed in this state, without complying with the applicable provisions of this code.

   
   

   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.--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 repre- sentative, 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 applicable grounds exist:

   * * *

   (4) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code.

   * * *

   1. Demonstrated lack of fitness or trust- worthiness to engage in the business of insurance.

   2. Demonstrated lack of reasonably 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.

   
   

   626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, adjuster's, customer representative's, service representative's, managing general agent's, or claims investigator's license or appointment.-- The department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of

   any applicant, solicitor, adjuster, customer representative, service representative, managing general agent, or claims investigator, and it may 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 applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611:

   * * *

   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.

   2. Violation of any lawful order or rule of the department.

   
   

   626.931 Quarterly report.--

   (1) Each surplus lines agent shall on or before the end of the month next following each calendar quarter file with the department a verified report of all surplus lines insurance transacted by him during such calendar quarter.

   
   

   626.935 Suspension, revocation, or refusal of surplus lines agent's license.--

   (1) The department shall suspend, revoke, or refuse to renew the license of a surplus lines agent and all other licenses held by the licensee under this code, upon any one or more of the following grounds:

   * * *

   (d) Failure to make and file his quarterly reports when due as required by s. 626.931.

   
   

   626.936 Failure to file report or pay tax; administrative penalty.--

   (1) Any licensed surplus lines agent who neglects to file a quarterly report in the form and within the time required or provided for in the Surplus Lines Law may be fined up to $50 per day for each day the neglect continues, beginning the day after the quarterly report was due until the date the report is received by the department. The depart- ment shall deposit all sums collected by it under this section into the Insurance Commissioner's Regulatory Trust Fund.

   
   

9. Respondent's failure to timely file the First Quarter 1994 surplus lines report certainly violated the provisions of Section 626.931(1), Florida Statutes, and therefore subjects him to disciplinary action under the provisions of Sections 626.621, 626.935(1)(d) and 626.936(1), Florida Statutes. Such failing may also be considered a violation of Section 624.11, Florida Statutes, and therefore subjects him to disciplinary action under Section 626.621(2), Florida Statutes. The section 624.11 violation is, however, duplicative of the section 626.931(1) violation, and adds nothing to these proceedings.

10. As to the balance of the Department's charges, it must be concluded, given the circumstances, that respondent's failure to timely file the First Quarter 1994 surplus lines report cannot reasonably be considered a violation of Sections 626.611(4), (7), (8) or (9), or 626.621(3), Florida Statutes.

    
    

11. In fashioning an appropriate penalty under the facts of this case, due consideration has been given to the foregoing provisions of law, as well as respondent's explanation as to the cause of his delay in filing the subject report. Given the circumstances, it is recommended that for respondent's failure to timely file the report he receive a nominal fine of $50.00, and that the Department forebear the imposition of any further penalty.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order which finds respondent

guilty of having violated the provisions of Section 626.931(1), Florida

Statutes, which imposes a fine of $50.00 against respondent for such violation, and which dismiss all other charges.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of February 1995.

WILLIAM J. KENDRICK

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 28th day of February 1995.

APPENDIX

The Department's proposed findings of fact are addressed as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3 & 4. Adopted in paragraph 3.

COPIES FURNISHED:

Michael K. McCormick, Esquire Lisa S. Santucci, Esquire Department of Insurance

and Treasurer

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

Stephen Paul Platt

10640 NW 27th Street, #101

Miami, Florida 33172

Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Dan Sumner

Acting 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 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: 94-006369

Orders for Case No: 94-006369