vs.
Respondent.
) Case No. 06-4021PL
Notice was provided and on January 31, 2007, a formal hearing was held in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006). The hearing location was the offices of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing commenced at 9:30 a.m. The hearing was held before Charles C. Adams, Administrative Law Judge.
Should discipline be imposed by Petitioner against Respondent's insurance agent licenses alleged as life including variable annuity (2-14), general lines (2-20), and health
On August 18, 2006, by an Administrative Compliant in Case No. 87217-06-AG, Petitioner accused Respondent of violations of Chapters 624 and 626, Florida Statutes, subjecting Respondent to possible discipline in accordance with those chapters and Florida Administrative Code Chapter 69B-231, in relation to the sale of term life insurance by Denise Turnbull, a customer representative to Patricia Brown, a customer.
Initially Respondent elected to proceed to an informal hearing in accordance with Section 120.57(2), Florida Statutes. Petitioner's hearing officer determined sua sponte that material facts were in dispute and that the matter should be adjudicated pursuant to Section 120.57(1), Florida Statutes. On October 13, 2006, Petitioner forwarded the case to the Division of Administrative Hearings (DOAH) to assign an administrative law judge to conduct a formal hearing. Robert Cohen, Director and Chief Judge of DOAH accepted the case. It was assigned as DOAH Case No. 06-4021PL, with the undersigned serving as administrative law judge. The case was noticed to be heard
December 22, 2006. On December 15, 2006, a Joint Motion to Continue was filed and the case was re-scheduled for hearing on January 31, 2007.
Petitioner called Patricia M. Brown, Denise Daley Turnbull and Roger Dale Travis1/ as its witnesses.
Respondent called witnesses Denise Daley Turnbull, Jennifer Michelle Ray, Patricia N. Brown, and testified on his own behalf.
Petitioner's Exhibits numbered 1 through 5 were admitted.
Petitioner's Exhibit numbered 6 was denied admission. In reference to Petitioner's Exhibit numbered 6 is denied admission, it is a pre-hearing stipulation in DOAH Case Nos. 06-1588PL and 06-1589PL pertaining to Respondent, Denise D. Turnbull. Respondent's Exhibits numbered 1 through 8 and 10 were admitted.
The allegation within the Administrative Compliant at paragraph (c), accusing Respondent of a violation of Section 626.611(7), Florida Statutes (2004), was withdrawn when the hearing commenced.
On February 27, 2007, a transcript was filed. On March 9, 2007, the parties filed proposed recommended orders that were considered in preparing the Recommended Order.
Petitioner issued license E125386 to Respondent. At present the license is valid in the following categories: life including variable annuity (2-14) and general lines (2-20).
At present Respondent has appointments with American Family Life Assurance Company of Columbus in the categories life including variable annuity and health (2-15) and general lines (2-20).
February 9, 2005, is the relevant date in this case.
On that date Respondent held a license in categories (2-14) and (2-20). The category (2-14) was for an appointment with Direct Life Insurance Company. The category (2-20) was an appointment with Direct General Insurance. At the time Respondent worked at an office in Tallahassee, Florida, referred to as the Case Register Insurance Agency, that sold life insurance offered by Direct Life Insurance Company, among other products.
On February 9, 2005, Denise Daley Turnbull worked at Case Register. She was a customer representative category (4- 40), appointed by Direct General Insurance Agency, Inc. Respondent worked with Ms. Turnbull.
On February 9, 2005, Patrician Ann Brown came to the Cash Register Insurance Agency to purchase personal injury protection (PIP) automobile insurance mandated by the State of
Florida. Ms. Turnbull dealt with the customer. In doing so, Ms. Turnbull followed a script which in relevant part stated:
* * *
How did you hear about Cash Register?
Are you currently insured? Have you had the policy for at least 6 months with no more than a 7-day lapse in coverage? If they say yes, say . . . Great! We will need you to bring in a copy of your renewal offer or a letter from your current company when we write the policy. This will make you eligible for a discount.
Are you buying, leasing or do you own your vehicle?
Is the vehicle registered or titled in your name?
* * *
What coverage will you be purchasing with us? Inform the customer about the work loss option. Under the mandatory Personal Injury Protection, there is a work loss option should you be involved in an accident that will pay up to 60% of your lost wages.
Would you like to include this option?
Quote only PIP/PD unless the client asks for BI. Always quote $750.00 deductible for Comp/Coll and $1000 deductible NI or NIRR for PIP. Other deductibles are available upon request.
* * * What is your date of birth?
Are you married or single? If married, get spouses information)
What tickets, accidents, or suspensions have you had in the last 3 years? (Do you need an SR-22?)
Who else living in your household is 14 years or older?
Are there other drivers who do not live in the house?
* * *
What is the year, make and model of your vehicle? Does it have air bags, anti-lock brakes or an anti-theft device?
Is the vehicle used for personal, business or commercial use?
Is your vehicle customized in any way? (remember, we do not cover any customization)
Mr/Mrs. I have quoted you with the State Mandatory liability limits up to
$10,000 dollars Property Damage, Personal Injury Protection up to $10,000 dollars with a $1,000 deductible, Comprehensive and Collision with $750 deductibles and offered with this quote are the optional policies for Accident Medical Coverage, Rental Reimbursement and a $10,000 term life benefit. You will need only $ to start your policy and have 12 payments of only
$ . How does that sound? (Always quote 20/27 day pay plan-can offer 10 day plan when client comes into office) (emphasis added)
How does that compare to other quotes you have received?
* * *
Mr./Mrs. , Direct is now offering to our customers, a Direct Visa Debit Card for a special low price of only $699. This requires no bank account, no credit check and is valid wherever Visa is accepted!
Only $699, so be sure to bring that amount in with your down payment so you can take advantage of this special offer.
Ms. Patricia M. Brown purchased automobile insurance from Direct General Insurance Company, including PIP and property damage liability (PD) totaling $848.00 with fees assigned. In addition, Ms. Brown purchased a policy through American Banking Travel Protection Plan for one year. The cost for that policy was $60.00. Ms. Brown purchased from Lloyds Accident Medical Protection Plan an individual accident medical protection plan. The cost was $110.00. Ms. Brown bought life insurance with a one-year period, that was renewable, $10,000.00 coverage, with a premium charge of $108.00.
In making her purchases, Ms. Brown signed a form titled Explanation of Policies, Coverages and Cost Breakdown (including non-insurance products). The total cost for all purchases was
$1,133.99.
Ms. Brown signed a form that referred to American Bankers Insurance Company of Florida, Travel Protection Plan- Florida Declarations. That form was counter-signed by
Ms. Turnbull.
Ms. Brown signed another form referred to as American Bankers Insurance Company Optional Travel Protection Plan.
Ms. Brown and Ms. Turnbull signed a form entitled Accident Medical Protection Plan Application. Ms. Brown signed a related form referred to as 100% Certain Underwriters @ Lloyds/London (DB/33) ACCIDENT MEDICAL PROTECTION PLAN.
Ms. Turnbull signed a page referred to as a Scan Cover Sheet Life Policy Policy No. FLAD162704741:1627016705. In that connection Ms. Brown completed an application for life insurance with Direct Life Insurance Company by initialing information in the application form about her insurability for such things as heart trouble or high blood pressure, cancer, tumors, etc.
Ms. Brown signed the application. Although Respondent had no direct participation with Ms. Brown in relation to the details of the life insurance policy, leaving the task to explain the policy to Ms. Turnbull, Respondent placed his name on the application in two places. He printed his name as agent and wrote his license ID number E125386 and he signed it with his agent signature on that same page.
In conversation, Ms. Turnbull asked Ms. Brown about possible medical problems such as high blood pressure or stroke or seizure as part of the process of initialing those questions on the application form. Ms. Turnbull told Ms. Brown that the
life insurance policy was optional and that it was a $10,000.00 term life benefit.
CONCLUSIONS OF LAW
The Division of Administrative Hearings as jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2006).
This is a disciplinary case. Therefore, Petitioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See § 120.57(1)(j), Fla. Stat. (2006); see also Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 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).
In pertinent part the Administrative Complaint alleges:
* * *
At all times relevant to the dates and occurrences referenced herein you, Roy Kellogg, were employed or affiliated with Direct General Insurance Agency, Inc., a Tennessee corporation, doing business in Florida as Cash Register.
Count I
The above General Allegations are hereby realleged and fully incorporated herein by reference.
On or about February 9, 2005, Customer Representative Denise D. Turnbull (Florida Insurance Identification Number E159113) sold a term life insurance policy to Patricia Brown. Ms. Turnbull was not licensed to sell this insurance product and her having done so was a violation of Sections 624.11(1), 626.112(2), 626.611(4), 626.611(7), 626.611(13), and 626.621(2), Florida Statutes, and Rules 69B-213.050(3), and 213.110(3), Florida Administrative Code.
You, ROY KELLOGG, signed the forms associated with this transaction and in so doing aided and abetted Ms. Turnbull in a violation of the insurance code.
IT IS THEREFORE CHARGED that you, ROY
KELLOGG, have violated or are accountable under one or more of the following provisions of the Florida Insurance Code, which constitutes grounds for the suspension or revocation of your licenses as an insurance agent in this state:
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, [Section 624.11(1), Florida Statutes].
If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or probations of this code. [Section 626.611(4), Florida Statutes].
* * *
Willful failure to comply with, or willful violation of, any proper order or rule of the department, commission, or office or willful violation of any provision of this code. [Section 626.621(2), Florida Statutes].
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 appointment. [Section 626.621(2), Florida Statutes].
Knowingly aiding, assisting, procuring, advising, or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department, commission, or office. [Section 626.621(12), Florida Statutes].
If the violations are proven Petitioner intends to impose discipline under the provisions set forth in Sections 624.15, 626.611, 626.621, 626.681, 626.691, 626.9521, Florida Statutes and Florida Administrative Code Chapter 69B-231.
To understand the statutory references within the Administrative Complaint resort is made to definitions set forth in Section 626.015, Florida Statutes (2004), which state in pertinent part:
* * *
"Agent" means a general lines agent, life agent, health agent, or title agency, or all such agents, as indicated by context. The term "agent" includes an insurance producer or producer, but does not include a customer representative, limited customer representative or service representative.
"Appointment" means the authority given by an insurer or employer to a licensee to transact insurance or adjust claims on behalf of an insurer or employer.
"Customer representative" means an individual appointment by a general lines agent or agency to assist that agent or agency in transacting the business of insurance from the office of that agent or agency.
"General lines agent" means an agent transacting any one or more of the following kinds of insurance:
Property insurance
Casualty insurance, including commercial liability insurance underwritten by a risk retention group, a commercial self-insurance fund as defined in s. 624.462, or a workers' compensation self- insurance fund established pursuant to s. 624.4621.
Surety insurance.
Health insurance, when transacted by a insurer also represented by the same agent as to property or casualty or surety insurance.
Marine insurance.
* * *
"License" means a document issued by the department or office authorizing a person to be appointed to transact insurance or adjust claims for the kind, line, or class of insurance identified in the document.
"Life agent" means an individual representing an insurer as to life insurance and annuity contracts, including agents appointed to transact life insurance, fixed- dollar annuity contracts, or variable contracts by the same insurer.
According to the Administrative Complaint
Ms. Turnbull's actions in selling the life insurance to Ms. Brown were a violation of the following provisions:
Section 624.11(1), Florida Statutes (2004)
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.
Section 626.112(2), Florida Statutes (2004): License and appointment required; agents; customer representatives, adjusters, insurance agencies, service representatives, managing general agents.--
No agent or customer representative shall solicit or otherwise transact as agent or customer representative, or represent or hold himself or herself out to be an agent or customer representative as to, any kind or kinds of insurance as to which he or she is not licensed and appointed.
Section 626.611(4), Florida Statutes: Grounds for compulsory refusal, suspension, or revocation of agent's, title agency's, adjusters, customer representative's, service representative's, or managing general agent's license or appointment.--
(4) If the license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code.
* * *
(7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
* * *
(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.
Section 626.621(2), Florida Statutes: Grounds for discretionary refusal, suspension, or revocation of agent's, adjuster's, customer representative's, service representative's, or managing general agent's license or appointment.--
(2) Violation of any provisions of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment.
Florida Administrative Code Rule 69B- 213.050(3)
* * *
A customer representative license does not grant the customer representative any authority to transact life insurance or annuities. A customer representative may only handle duties relating to life insurance and annuities if such duties may be performed by unlicensed persons, as provided in Rule Chapter 69B-222, F.A.C.,2/ and the insurance Code, or if the customer representative also holds a life agent license. This applies even though the supervising agent holds a life agent license in addition to a general lines license.
Florida Administrative Code Rule 69B- 213.110(3).
* * *
The customer representative shall exercise great care in not going beyond the licensure, training, expertise and experience and experience of the customer representative. In the event of uncertainty as to whether the customer representative is competent to advise or perform regarding any insurance matter, the uncertainty shall be resolved in favor of referring the matter to the supervising agent.
As stated, the Administrative Complaint accuses Respondent of aiding and abetting Ms. Turnbull in the above- stated violations of the Insurance Code. The sections that formed the basis for Respondent's alleged violations are comparable to the provisions related to Ms. Turnbull's conduct, with the exception of Section 626.112(2), Florida Statutes (2004), is not referred to when addressing Respondent's conduct nor is mention made of Florida Administrative Code Rules 69B- 213.050(3) and 69B-213.110(3). Unlike the violations pertaining to Ms. Turnbull, Respondent's actions include an alleged violation of Section 626.621(12), Florida Statutes (2004), which prohibits a person from:
(12) Knowingly aiding, assisting, procuring, advising or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department, commission, or office.
When Ms. Turnbull sold Ms. Brown life insurance, she did not comply with the Insurance Code as required by Section 624.11(1), Florida Statutes (2004). She did not hold a class
(2-14) agent license appointed under Direct Life Insurance Company. She was a customer representative (4-40). A customer representative was not entitled to solicit or transact insurance business. § 626.112(2), Fla. Stat. (2004). Her actions contemplate the opportunity to impose discipline against her license for violations of Sections 626.611(4), (7), and (13), Florida Statutes (2004), as well as Section 626.621(2), Florida Statutes (2004). Ms. Turnbull's actions in selling the life insurance were contrary to the prohibition against a customer representative transacting life insurance or annuities as addressed in Florida Administrative Code Rule 69B-213.050(3), and went beyond her licensure contrary to Florida Administrative Code Rule 69B-213.110(3).
Clear and convincing evidence was presented that Respondent aided and abetted Ms. Turnbull in violating the Insurance Code, contrary to Section 626.621 (12), Florida Statutes (2004), when he executed the application by affixing his name, license number, and signature without further involvement with the customer Brown in the process. The substance of the life insurance purchase took place between
Ms. Brown and Ms. Turnbull. In any solicitation or explanation leading to the purchase, Respondent willfully used his license in the category (2-14), to circumvent the prohibitions of the Code when assisting Mr. Turnbull's action in the life insurance
sale to Ms. Brown. Thus he violated Section 626.611(4), Florida Statutes (2004), as well as Section 624.11(1), Florida Statutes (2004), Section 626.611(13), Florida Statutes (2004) and Section
626.621(2), Florida Statutes (2004).
Section 626.112(6), Florida Statutes (2004) was referred to in the hearing. It states:
License and appointment required; agents, customer representative's, adjusters, insurance agencies, service representatives, managing general agents.--
(6) An individual employed by a life or health insurer as an officer or other salaried representative may solicit and effect contracts of life insurance or annuities or of health insurance, without being licensed as an agent, when and only when he or she is accompanied by and solicits for and on the behalf of a licensed and appointed agent.
Ms. Turnbull was not employed by Direct Life Insurance Company, the insurer, as opposed to Direct General Insurance Agency, Inc., in her capacity of customer representative (4-40), when the life insurance was sold to Ms. Brown, that would allow her to forgo the requirement that she be a licensed life agent before undertaking the sale. Moreover, she was not accompanied by Respondent, who was the licensed as a (2-14) life agent appointed by Direct Life Insurance Company. Being in the same building on the date the substance of the transaction took place does not equate to accompaniment as envisioned by the statute,
nor does Respondent's signing of his name, or placement of his name and license number constitute accompaniment.
Having considered Respondent's testimony, nothing provided by Petitioner to prepare Respondent to comply with the proper scope of his (2-14) life agent license, would reasonably lead him to conclude that the role he played in Ms. Brown's purchase of life insurance on the date in question should be condoned.
The Administrative Complaint refers to Section 624.15, Florida Statutes (2004), as a basis for punishment. It states as follows:
General penalty.--Each Willful violation of
this code as to which a greater penalty is not provided by another provision of this code or by other applicable laws of this state is a misdemeanor of the second degree and is, in addition to any prescribed applicable denial, suspension, or revocation of certificate of authority, license, or permit,, punishable as provided in s.
775.082 or s. 775.083. Each instance of such violation shall be considered a separate offense.
That provision is unrelated to administrative discipline. It is a circumstance to be addressed as a crime in a court.
Sections 626.611 and 626.621, Florida Statutes (2004), allow discipline to be imposed wherein they state:
626.611: Grounds for compulsory refusal, suspension, or revocation of agent's title agency's, adjuster's, customer representative's, service representative's,
or managing general agent's license or appointment.
* * *
626.621: Grounds for discretionary refusal, suspension, or revocation of agent's adjuster's, customer representative's, service representative's or managing general agent's license or appointment.
Section 626.681, Florida Statutes (2004), allows an administrative fine to be imposed where it describes the imposition of an:
Administrative fine in lieu of or in addition to suspension, revocation,
. . . .
Section 626.691, Florida Statutes (2004), allows the establishment of probation for violations where it states:
626.691 Probation.-
If the department finds that one or more grounds exist for the suspension, revocation, or refusal to renew or continue any license or appointment issued under this part, the department may, in its discretion, except when an administrative fine is not permissible under s. 626.681 or when such suspension, revocation, or refusal is mandatory, in lieu of or in addition to such suspension or revocation, or in lieu of such refusal or in connection with any administrative monetary penalty imposed under s. 626.681, place the offending licensee or appointee on probation for a period not to exceed 2 years, as specified by the department in its order.
As a condition to such probation or in connection therewith, the department may specify in its order reasonable terms and conditions to be fulfilled by the
probationer during the probation period. If during the probation period the department has good cause to believe that the probationer has violated a term or condition, it shall suspend, revoke, or refuse to issue, renew, or continue the license or appointment of the probationer, as upon the original grounds referred to in subsection (1).
The Administrative Complaint refers to Section 626.9521, Florida Statutes (2004), which states:
Unfair methods of competition and unfair or deceptive acts or practices prohibited; penalties.--
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. 626.9651 to be, an unfair method of competition or an unfair 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 any amount not greater than $2,500 for each nonwillful violation and not greater than
$20,000.00 for each willful violation. Fines under this subsection may not exceed an aggregate amount of $10,000.00 for all nonwillful violations arising out of the same action or an aggregate amount of
$100,000 for all willful violations arising out of the same action. The fines authorized by this subsection may be imposed in addition to any other applicable penalty
Under terms set forth in the Administrative Complaint and Petitioner's having abandoned an alleged violation of Section 626.611(7), Florida Statutes (2004), pertaining to demonstrated lack of fitness or trustworthiness to engage in the
business of insurance, Section 626.9521, Florida Statutes (2004), does not pertain.
Florida Administrative Code Chapter 69B-231 sets out guidelines for imposing penalties for violations. It has been consulted in arriving at a recommended penalty in this case.
That Petitioner enter a final order suspending Respondent's license for six months for the violations.
DONE AND ENTERED this 27th day of March, 2007, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2007.
1/ Petitioner was allowed to proffer the testimony of this witness, a regional director of the Bureau of Investigations concerning his legal interpretation of Section 626.112(2) and (6), Florida Statutes (2004). Depending on the argument made in the proposed recommend orders, a ruling would be made on the use of the proffer, if any, in resolving this dispute. Having considered the cases cited by Petitioner, the legal interpretation is not allowed and the proffer is rejected.
Instead a decision on the meaning of the statute is made, in consideration of the discussion by the parties in their proposed recommended orders and the impression of the undersigned as explained in the Recommended Order.
2/ Florida Administrative Code Chapter 69B-222 deals with activities of unlicensed insurance personnel. Ms. Turnbull was licensed as a customer representative (4-40). Therefore the Chapter did not apply to her activities involving the customer Ms. Brown. Nor was the nature of her employment in the Brown transaction that of a clerical worker with the meaning of Section 626.0428(1), Florida Statutes (2004) which states:
Department of Financial Services The Capitol, Level 11 Tallahassee, Florida 32399-0300
Daniel Sumner, General Counsel Department of Financial Services The Capitol, Level 11 Tallahassee, Florida 32399-0307
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.
