STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

CARMEN ROSA MALDONADO, )

)

Petitioner, )

)

vs. ) Case No. 97-4847

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 6, 1998, by video teleconference in Fort Lauderdale, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carmen Rosa Maldonado, pro se

2931 Southwest 11th Court

Fort Lauderdale, Florida 33312-2805

For Respondent: Joe DeMember, Esquire

Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether the Petitioner meets the pre-licensing qualifications for a general lines agent, pursuant to Sections 626.731 and 626.732, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated July 11, 1997, Respondent, Department of Insurance and Treasurer (Department), notified Petitioner, Carmen Rosa Maldonado (Maldonado), that her application for licensure as a general lines agent was denied because she did not meet the

pre-licensing educational requirements for the license as set forth in Sections 626.731(1)(e) and 626.732(1)(a), (b), (c), Florida Statutes. Maldonado filed an Election of Rights, dated August 1, 1997, with the Department, requesting an informal proceeding through the submission of a written statement and documentary evidence. Along with the Election of Rights, she submitted a written statement and a letter from the vice president of the company for which she worked.

By letter dated October 9, 1997, Maldonado notified the Department that she desired to change her request for an informal proceeding to a request for a formal hearing. She also filed a revised Election of Rights, dated October 9, 1997. By order dated October 15, 1997, the informal hearing examiner for the Department, closed her file and ordered the counsel for Respondent to forward the case to the Division of Administrative Hearings for assignment to an administrative law judge. The Division of Administrative Hearings received the case on

October 17, 1997.

By motion filed on January 13, 1998, the Department requested leave to file an amended letter of denial and represented that Maldonado had no objection to the granting of

the motion. The motion was granted by order dated January 16, 1998.

At the final hearing, Petitioner testified on her own behalf and called Erica Woodham as her witness. Petitioner did not submit any exhibits. Respondent called Shirley Kerns as its witness. Respondent's Composite Exhibit 1, Addendum to Composite Exhibit 1 and Exhibit 2, were admitted in evidence.

The parties submitted a prehearing stipulation in which they admitted to facts and issues of law contained in Sections E and F, respectively, of the prehearing stipulation.

At the final hearing, the parties agreed to file proposed recommended orders within ten days of the filing of the transcript. The transcript was filed on February 18, 1998. The Department filed its proposed recommended order on February 26, 1998. Maldonado did not file a proposed recommended order. The undersigned administrative law judge has considered the Department's proposed recommended order in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Carmen Rosa Maldonado (Maldonado), has been employed by M & D Group, Inc. (M & D), an insurance agency, since 1992. M & D writes property and casualty lines of insurance.

2. Maldonado is the bookkeeper for M & D. Her responsibilities include inputting data into the computer and translating for the Spanish-speaking customers.

3. L & W Group (L & W) is a sister corporation of M & D.

   
   

   L & W writes life, health, and disability insurance policies and annuities.

4. If M & D has a customer who desires a life, health, or disability policy, a representative of M & D will contact

   Mr. Weinberg at L & W and give him the customer information. Mr. Weinberg prepares the quote for the policy and either sends the quote to M & D for an agent at M & D to explain to the customer or comes himself to the M & D office to explain the quote and policy to the customer. If a Spanish-speaking client is involved, Maldonado is the translator. M & D provides three to seven quotes each month for health insurance through L & W.

5. In September 1997, Maldonado participated in writing a surety bond, and on February 2, 1998, Maldonado assisted Erica Woodham, Vice President of M & D, in giving a quote on a surety bond. The evidence is not clear whether the quote and bond were provided through another insurance agency, because according to Ms. Woodham, M & D does not write surety bonds.

6. On June 6, 1997, Maldonado filed an application for licensure as a general lines agent with the Department. She listed her insurance experience as "customer service" and indicated she wanted her experience to be the basis for meeting the pre-licensing qualifications.

7. On June 13, 1997, the Department returned Maldonado's application and requested that she provide additional information

   concerning her experience. The letter stated:

   
   

   To qualify for this examination through experience you must have completed, within the past 4 years, at least 1 year of substantially full-time responsible duties as a bona fide employee. Your duties during this time must have been in all lines of Property, Casualty, Surety, Health and Marine Insurance. Please complete and return the enclosed certificates of employment.

8. On or about June 18, 1997, Maldonado resubmitted her application with an addendum to the Department for the purpose of determining whether she was qualified to sit for the pre- licensing examination or to be licensed as a general lines insurance agent. Maldonado's addendum did not indicate that she was experienced in marine, health, or surety lines.

9. By letter dated July 11, 1997, the Department advised Maldonado that her application for a general lines insurance agent was denied because she did not meet the pre-licensing educational requirements for a general lines agent. The denial letter was later amended to state that Maldonado lacked the one year of experience in health, flood, surety, and fire insurance.

10. On August 1, 1997, Maldonado sent a letter to the Department, stating that she inadvertently failed to mark the appropriate boxes on the addendum form regarding her experience in health, surety, and marine insurance.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this

    proceeding. Section 120.57(1), Florida Statutes.

    
    

12. As an applicant, Maldonado bears the general burden of proving entitlement to the license. Dept. of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996) and Fla. Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

13. The Licensing Procedures Law, contained primarily in Chapter 626, Florida Statutes, sets forth the criteria for licensure of general lines agents for qualified applicants. A general lines agent is defined by Section 626.041(1), Florida Statutes, as:

    [O]ne so transacting any one of the following kinds of insurance:

    1. Property insurance.

    2. Casualty insurance, including commercial liability insurance underwritten by a risk retention group, a commercial self-insurance fund as described in s. 624.462, or a workers' compensation self-insurance fund established pursuant to s. 440.57.

    3. Surety insurance.

    4. Health insurance, when transacted by an insurer also represented by the same agent as to property or casualty or surety insurance.

    5. Marine insurance.

    
    

14. Pursuant to Section 626.311, Florida Statutes, an applicant for a general lines agent or solicitor shall qualify for all property, marine, casualty, and surety lines and may qualify for health insurance if the agent's appointment by the insurer includes health insurance and the appointment is by the same insurer for property, casualty, and surety insurance.

15. Section 626.731(1)(e), Florida Statutes, requires

    applicants for a general lines license to qualify as to "knowledge, experience, or instruction in the business of insurance" and to meet the requirements of Section 626.732, which provides:

    1. Except as provided in subsection (3), no applicant for a license as a general lines agent . . . shall be qualified or licensed unless within the 4 years immediately preceding the date the application for license is filed with the department the applicant has:

       1. Taught or successfully completed classroom courses in insurance satisfactory to the department at a school, college, or extension division thereof, approved by the department;

       2. Completed a correspondence course in insurance satisfactory to the department and regularly offered by accredited institutions of higher learning in this state and, except if he or she is applying for a limited license under s. 626.321, has had at least 6 months of responsible insurance duties as a bona fide employee in all lines of property and casualty insurance set forth in s. 626.041(1); or

       3. Completed at least 1 year in responsible insurance duties as a substantially full-time bona fide employee in all lines of property and casualty insurance of aviation and wet marine and transportation insurances but not exclusive of boats less than 36 feet in length or aircraft not held out for hire, as set forth in s. 626.041(1), without the education requirements mentioned in paragraph

          (a) or paragraph (b).

    2. Where an applicant's qualifications as required by paragraph(1)(b) or paragraph (1)(c) are based in part upon the periods of employment at responsible insurance duties prescribed therein, the applicant shall submit with the application for license, on a form prescribed by the department, the affidavit of his or her employer setting forth the period of such employment that the same was substantially full-time, and giving a brief abstract of the nature of the duties performed by the applicant.

16. In order for an applicant to qualify as a general lines agent through classroom instruction, the applicant must take a general lines agent course consisting of 200 hours of classroom instruction in all lines of insurance except life and annuities. In order to qualify through a correspondence course, the applicant must take a course from an accredited institution of higher learning in Florida which covers the Department's approved course outline for a general lines agent, and the applicant must have six months of responsible duties as a full-time employee in

    all lines of property and casualty insurance. It is logical to conclude that the applicants who rely solely on experience for pre-licensure qualification must have gained through experience knowledge of insurance similar to the knowledge that an applicant would acquire through classroom instruction or correspondence courses.

17. Maldonado has chosen to meet the pre-licensing qualifications through her experience rather than through either classroom instruction or correspondence course work combined with experience. In order to qualify through experience, Maldonado must demonstrate that she has had experience in the different kinds of insurance to which the general lines license applies.

18. The limited experience that she has in surety insurance occurred after she submitted her application for a general lines agent and consisted of assisting Ms. Woodham in a quote and participating in writing a surety bond. The evidence does not establish to what extent she assisted in the quote or participated in the writing of the surety bond. The evidence is clear that M & D is rarely involved in surety insurance transactions.

19. M & D does not write health insurance. Ms. Woodham, the Vice President of M & D, does give her customers quotes on health insurance provided by L & W. Maldonado's experience in health insurance has been in translating information to and from M & D's Spanish-speaking clientele concerning health insurance

    transactions with L & W. On a monthly basis, M & D will be involved in between three and seven health insurance quotes, and on an annual basis M & D will be involved in approximately six or

    seven health policies that are written by L & W. Maldonado is not a substantially full-time bona fide employee of L & W.

20. Maldonado has failed to establish that she has sufficient experience in health and surety insurance to meet the requirements of Sections 626.311, 626.731, and 626.732, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for a general lines agent.

DONE AND ENTERED this 10th day of March, 1998, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1998.

COPIES FURNISHED:

Bill Nelson

State Treasurer and Insurance Commissioner

Department of Insurance The Capitol, Plaza Level 1

Tallahassee, Florida 32399-0300 Daniel Y. Sumner

General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

Joe DeMember, Esquire Department of Insurance

and Treasurer

Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Carmen Rosa Maldonado, pro se 2931 Southwest 11 Court

Fort Lauderdale, Florida 33312-2805

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-004847

Orders for Case No: 97-004847