STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04-0637PL

)

SHARON G. TAYLOR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by Stephen F. Dean, Administrative Law Judge of the Division of Administrative Hearings, by video-teleconferencing from the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida, and the Jacksonville Regional Service Center, 921 North Davis Street, Jacksonville, Florida, on May 27, 2004, and in person on July 9, 2004, from the Jacksonville Regional Service Center, Building B, Room 301, 921 North Davis Street, Jacksonville, Florida.

APPEARANCES

For Petitioner: Greg S. Marr, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Jed Berman, Esquire

Infantino & Berman

180 South Knowles Avenue Winter Park, Florida 32790

STATEMENT OF THE ISSUE

Should discipline be imposed by Petitioner against Respondent’s insurance license held pursuant to Chapter 626, Florida Statutes? Although Respondent was unlicensed at the time of the specific insurance transactions enumerated in the Administrative Complaint, she since has become licensed. It is the existing license of Respondent that Petitioner seeks to discipline in this action.

PRELIMINARY STATEMENT

By an Amended Administrative Complaint in Case No. 74084- 04-AG, Petitioner has accused Respondent of various violations in the transacting of insurance without being licensed to do so, and serving as a customer representative without a proper appointment. By her acts, Respondent is alleged to have violated provisions of Chapters 624 and 626, Florida Statutes, subjecting her to discipline in accordance with those chapters and Florida Administrative Code Rule 69B-231.

Petitioner served Respondent with the original Administrative Complaint in Case No. 74084-04-AG. Respondent disputed the underlying facts in the Administrative Complaint in an Election of Proceeding form received timely by Petitioner.

On February 19, 2004, the case was forwarded to the Division of Administrative Hearings to assign an Administrative Law Judge to conduct a formal hearing. The case was assigned and noticed to be heard on April 30, 2004. Following one continuance, the case was scheduled to be heard on May 27, 2004. By Order dated March 3, 2004, this case was consolidated with a related case: Department of Financial Services vs. John Randall Beck, DOAH Case Number 04-0404. Petitioner was allowed to amend the Administrative Complaint three times, by Orders dated April 26, 2004, April 28, 2004, and May 12, 2004. Additionally, Petitioner filed a Motion on June 10, 2004, to amend the Third Amended Administrative Complaint. This Motion was granted during the July 9, 2004, session of the Final Hearing.

At hearing, Petitioner presented the testimony of Ruby Hubbard, Charles Goodin, Charles Howard, Mary Kennedy, John Kennedy, Aaron Curtis, Stacy Collier, and Linda Davis as witnesses. The transcript reflects that Petitioner’s Exhibits numbered 1-5, 7-13, 16-19, 21-24, and 30-32 were admitted as evidence. Respondent presented the testimony of John Beck and herself as witnesses. Respondent’s Exhibits B and E were admitted as evidence.

The hearing transcript was filed on August 8, 2004. The parties timely filed Proposed Recommended Orders on or before the extended deadline for submission of those pleadings.

References to the transcript of the Final Hearing proceedings in this case will be made by use of the symbol “Tr.” followed by the appropriate page number. References to Exhibits will be made by use of the symbols “Pet. Ex.”, or “Res. Ex.”

FINDINGS OF FACT

The Parties

1. Petitioner was created in accordance with Section 20.13, Florida Statutes. Petitioner has been conferred general power by the Legislature to regulate the insurance industry in Florida, in accordance with Section 624.307, Florida Statutes, and Chapter 626, Florida Statutes, grants Petitioner the authority to license and discipline insurance agents doing business in Florida.

2. At times relevant to the inquiry, Respondent was not licensed by Petitioner to transact insurance. (Pet. Ex. 2)

3. Respondent was employed by Beck-De Pratter, Inc., a Florida Corporation, doing business as William Dye Insurance, Inc./Brentwood (hereinafter referred to as the “Agency”) from 1996 until 2004.

   Count I: Aaron Curtis

   
   

4. On August 16, 2000, Aaron Curtis came into the Agency to re-new the insurance on his vehicle. Respondent took down the information necessary for Curtis to re-new his insurance.

5. The company that had insured Curtis' vehicle was no longer writing coverage in Florida, and the Agency placed Curtis' coverage without significant alternation with another carrier.

6. John Beck signed this application as agent.

   
   

   Count II: Stacy Collier

   
   

7. On October 7, 2002, Collier came into the Agency to re-new his automobile insurance. Respondent took down the information necessary for Collier to re-new the insurance.

8. The company that had insured Collier's vehicle was no longer writing coverage in Florida, and the Agency placed Collier's coverage without significant alternation with another carrier.

9. John Beck signed this application as agent.

   
   

   Count III: Ruby Hubbard

   
   

10. On October 11, 2002, Ruby Hubbard came into the Agency to re-new his automobile insurance. Respondent took down the information necessary for Hubbard to re-new the insurance.

11. The company that had insured Hubbard's vehicle was no longer writing coverage in Florida, and the Agency placed Hubbard's coverage without significant alternation with another carrier.

12. John Beck signed this application as agent.

    Count IV: Mary Kennedy

    
    

13. On March 6, 2002, Mary Kennedy came into the Agency to re-new his automobile insurance. Respondent took down the information necessary for Hubbard to re-new the insurance.

14. The company that had insured Kennedy's vehicle was no longer writing coverage in Florida, and the Agency placed Kennedy's coverage without significant alternation with another carrier.

15. John Beck signed the related vehicle inspection report.

    Count V: Charles Howard

    
    

16. On September 10, 2001, Charles Howard came into the Agency to re-new his automobile insurance. Respondent took down the information necessary for Hubbard to re-new the insurance.

17. The company that had insured Kennedy's vehicle was no longer writing coverage in Florida, and the Agency placed Kennedy's coverage without significant alternation with another carrier.

18. John Beck signed the related vehicle inspection report.

    Count VI: Not appointed as Customer Representative

    
    

19. Petitioner’s official records reveal that Respondent was not appointed as customer representative by any insurance agency at the time the preceding transactions occurred.

20. Respondent’s employer, John Beck, testified that he never appointed Respondent as a customer representative. Count VII: John Kennedy

21. On March 2, 2001, John Kennedy came into the Agency to re-new his automobile insurance. Respondent took down the information necessary for Hubbard to re-new the insurance.

22. The company that had insured Kennedy's vehicle was no longer writing coverage in Florida, and the Agency placed Kennedy's coverage without significant alternation with another carrier.

23. John Beck signed this application as agent.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

25. The first issue to be addressed is jurisdiction of Petitioner to discipline Respondent for acts committed by Respondent prior to her licensure. Section 624.11(1), Florida Statutes, provides as follows:

    --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.

26. Section 626.621, Florida Statutes, provides that department may, in its discretion, discipline any licensee if it finds that any one or more of the following applicable grounds exist regarding the licensee for which such denial, suspension, revocation, or refusal is not mandatory under Section 626.611, Florida Statutes:

    1. Any cause for which issuance of the license or appointment could have been refused had it then existed and been known to the department or office.

       
       

27. Therefore, Petitioner has jurisdiction to discipline Respondent for acts committed prior to her licensure.

28. This is a disciplinary case. Therefore, Petitioner has the burden of proving the allegations in the Amended Administrative Complaint by clear and convincing evidence. See

    § 120.57(1)(j), Fla. Stat. (2003); see also Department of

    
    

    Banking and Finance, Division of Investor Protection v. Osborne Stearn and Company, 670 So. 2d 932 (Fla. 1996); Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987); and Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3rd DCA 1998).

29. This case turns upon whether the filling out a form for renewing coverage without changes with a new insurance carrier constitutes transacting insurance. The facts reveal that the Respondent filled out insurance applications for Curtis, Stacy Collier, Ruby Hubbard, Mary Kennedy, John Kennedy,

    and Charles Howard, and these applications were presented to and signed by John Beck. It is Petitioner's contention that this constitutes transacting insurance. Petitioner cites particularly Section 626.112(1) (b)5., Florida Statutes, which states solicitation of insurance is the attempt to persuade any person to purchase an insurance policy by:

    1. Describing the benefits or terms of insurance coverage, including premiums or rates of return;

       
       

    2. Distributing an invitation to contract to prospective purchasers;

       
       

    3. Making general or specific recommendations as to insurance products;

       
       

    4. Completing orders or applications for insurance products; or

       
       

    5. Comparing insurance products, advising as to insurance matters, or interpreting policies or coverages.

    
    

30. There are no cases interpreting the provisions above regarding completing order or applications or comparing insurance products. Florida Administrative Code Rules 69B-

    222.040 and 69B-222.050, provide that an unlicensed person may perform certain activities of a clerical or administrative support nature, or perform certain more substantive activities if done only on an incidental basis.

31. The evidence adduced at hearing did not indicate that Respondent ever did more than perform clerical or administrative

    duties in the completion of the insurance application forms for the customers who had come into the office to renew their automobile insurance coverage. John Beck signed each application as the producing agent.

32. Petitioner failed to show that Respondent violated the insurance code as alleged.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That a final order be entered dismissing the allegations contained in the administrative complaint against Respondent, Sharon G. Taylor.

DONE AND ENTERED this 2nd day of November, 2004, in Tallahassee, Leon County, Florida.

S

__ STEPHEN F. DEAN

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2004.

COPIES FURNISHED:

Greg S. Marr, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Jed Berman, Esquire Infantino and Berman Post Office Box 30

Winter Park, Florida 32790

Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Tom Gallagher, Chief Financial Officer Department of Financial Services

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

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: 04-000637PL

Orders for Case No: 04-000637PL