STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04-3423PL

) SYLVIA ST-ANNIE SIBBLE-MCLEOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 4, 2005, by videoconference between sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Michael T. Ruff, Esquire

Department of Financial Services Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Sylvia St-Annie Sibble-McLeod, pro se

615 Belmont Drive

Alpharetta, Georgia 30022 STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against her,

and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

Petitioner Department of Financial Services filed an Administrative Complaint against Respondent Sylvia St-Annie Sibble-McLeod, alleging that she had violated various statutes regulating her conduct as an insurance agent, and Respondent requested an administrative hearing to contest those allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

The Department presented the testimony of Michael Sealy, and the Respondent testified on her own behalf. Additionally, the Department's Exhibits numbered 1-7 and the Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties filed proposed recommended orders after the final hearing in this cause. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as a life and health insurance agent in Florida. She currently has no active appointments to represent any insurers.

2. Until her termination on January 21, 2003, Respondent was an agent representing Monumental Life Insurance Company,

   charged with the responsibility of collecting insurance premiums from individual customers and remitting those payments to Monumental Life. Under the terms of her agency agreement with Monumental Life, Respondent had two days to deposit any premiums she collected into the company's account.

3. Because Respondent had not been timely remitting premiums to the company, Monumental Life conducted an audit of the premiums paid to Respondent. The audit commenced on January 21, 2003, and was completed on April 7, 2003.

4. The audit revealed that Respondent had failed to remit to the company premiums she collected in the amount of

   $3,665.21. The audit further revealed that the missing premiums covered the time period from November 2002 through January 2003.

5. Respondent knew in January 2003 that she owed Monumental Life funds for premiums she had collected but had not forwarded to the company. Between her termination by Monumental Life in January 2003 and the final hearing in this cause in January 2005, Respondent had made no payments to Monumental Life and had made no arrangements to pay Monumental Life the monies she owes.

6. Respondent testified that approximately $2,200 of the monies she owed to Monumental Life was stolen from her vehicle in January 2003. She testified that Monumental Life should have made a claim against any errors and omissions policy covering

   her to get paid that amount of money. She offered no evidence that she was covered by an errors and omissions policy, that such a policy would cover theft from her vehicle, or as to why she did not pay the rest of the money to Monumental Life.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

8. The Administrative Complaint filed in this cause alleges that Respondent has violated nine statutory provisions. In this disciplinary proceeding, the Department has the burden of proving its allegations by clear and convincing evidence. The Department has met its burden of proof as to seven statutory violations.

9. Subsection 626.561(1), Florida Statutes, establishes the fiduciary capacity under which a licensee holds premiums belonging to an insurer and requires the licensee in the regular course of business to account for and pay those premiums to the insurer. Under the terms of Respondent's agency agreement with Monumental Life, she was required to transmit premiums within two days of receiving them. The monies owed by Respondent to Monumental Life have been owed for two years. During the final hearing in this cause, Respondent did not deny receiving the premiums; rather, she testified that some of the money was

   stolen from her vehicle and offered no explanation as to why she did not pay Monumental Life the balance of the premiums. The evidence is not only clear and convincing, but also uncontroverted, that Respondent violated Subsection 626.561(1).

10. Although the Administrative Complaint alleges that Respondent violated Subsection 626.611(4), Florida Statutes, the Department agrees in its Proposed Recommended Order that Respondent did not use her license or appointment willfully to circumvent the insurance code.

11. Respondent is also charged with violating Subsections 626.611(7) through (10), Florida Statutes, by demonstrating a lack of fitness or trustworthiness to engage in the business of insurance, by demonstrating a lack of reasonably adequate knowledge and technical competence, by engaging in fraudulent or dishonest practices in the conduct of business under her license, and by misappropriating, converting, or unlawfully withholding monies belonging to an insurer which she received in the conduct of business under her license. The Department has met its burden of proving that Respondent violated Subsections 626.611(7), (9), and (10), as alleged in the Administrative Complaint. The Department offered no evidence, however, to prove that Respondent lacked knowledge of the insurance business and lacked technical competence, in violation of Subsection

    626.611(8); rather, the evidence indicates that Respondent understood what was required of her but did not do it.

12. Subsection 626.611(13), Florida Statutes, prohibits willfully failing to comply with or willfully violating any provision of the insurance code. The evidence is clear and convincing that Respondent's conduct in violating these statutory provisions was, and continues to be, willful and not as a result of negligence. She has, in effect, admitted that she received the premiums in question and did not transmit them to Monumental Life. Further, she continues to not transmit them.

13. The Administrative Complaint further charges Respondent with violating Subsections 626.621(2) and (6), Florida Statutes. Subsection (2) prohibits violating any provision of the insurance code, and Subsection (6) permits disciplinary action against a licensee who has shown herself to be a source of injury or loss to the public or detrimental to the public interest. Respondent has violated Subsection (2) by violating the statutory provisions set forth above. As to Subsection (6), Respondent's complete disregard for her fiduciary duty as a licensed insurance agent was apparent from her testimony at the final hearing in this cause.

14. Section 626.611, Florida Statutes, requires the Department to suspend or revoke the licenses and eligibility for

    licensure of any agent who violates that Section. Section 626.621 permits the Department to do so for violations under that Section.

15. Florida Administrative Code Rule 69B-231.110(9) provides for a nine-month suspension for violating Subsection 626.561(1) as does Rule 69B-231.080(9) and (10) for violating Subsections 626.611(9) or (10), Florida Statutes. Violations of Subsections 626.611(7) or (13) or 626.621(6) require a six-month suspension under Rules 69B-231.080(7) and (13) and 69B- 231.090(6), respectively. Rule 69B-231.090(2) only requires a three-month suspension for a violation of Subsection 626.621(2), Florida Statutes.

16. All of the statutory violations with which Respondent has been charged in the Administrative Complaint are contained in one count. Under Florida Administrative Code Rule 69B- 231.040(1)(a), the highest "penalty per count," therefore, is a nine-month suspension. Rule 69B-231.040(3), however, provides that the highest penalty per count may be adjusted according to any aggravating or mitigating factors as set forth in Rule 69B-

    231.160. Subsection (1) of the latter Rule is applicable to this case.

17. Several aggravating factors found in that Subsection are present. The evidence at the final hearing demonstrated that the Respondent's conduct was willful, that there was a

    substantial degree of actual injury to Monumental Life, that no restitution has been made or even suggested by Respondent, that Monumental Life's loss was Respondent's financial gain, and that Respondent was personally responsible for her dishonest business practices. Moreover, Respondent knowingly and continually violated her fiduciary responsibilities to Monumental Life. The failure to turn over premiums was not an isolated act but occurred numerous times over a multi-month period.

18. On the other hand, no mitigating factors are present.

    
    

    Respondent demonstrated at the final hearing a total lack of remorse for retaining money she owed to Monumental Life. She took the position that some of the money was stolen from her vehicle long after she should have remitted it under the terms of her agreement with Monumental Life. As to that money, even if her testimony regarding the theft were credible, she argues that Monumental Life should have made a claim against an unidentified errors and omissions policy. As to the balance of the money Respondent kept, she offered no explanation.

19. Instead, Respondent argues that she is the victim and has been persecuted by the actions brought against her by Monumental Life and/or the Department based upon her dishonest conduct. She complains how busy she has been defending herself. In her proposed recommended order she seeks compensatory and punitive damages and alleges that her civil rights have been

    violated. Nowhere does she indicate that she understands the serious nature of her dishonesty.

20. Although the Department in its Proposed Recommended Order suggests that an appropriate penalty for Respondent based upon aggravating factors would be a one-year suspension of Respondent's license and eligibility for licensure, that recommendation fails to take into account the danger that Respondent poses from her lack of honesty, her lack of understanding of the meaning of a fiduciary relationship, and her failure to accept responsibility for wrongfully keeping a large sum of money belonging to Monumental Life. The only way to protect the public and the insurance industry from Respondent is to revoke her license and her eligibility for licensure.

RECOMMENDATION

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

RECOMMENDED that a final order be entered revoking Respondent's insurance license and eligibility for licensure.

DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 23rd day of February, 2005.

COPIES FURNISHED:

Honorable Tom Gallagher Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

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

Michael T. Ruff, Esquire Department of Financial Services Division of Legal Services

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

Sylvia St-Annie Sibble-McLeod 615 Belmont Drive

Alpharetta, Georgia 30022

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: 04-003423PL

Orders for Case No: 04-003423PL