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.
Findings Of Fact Respondent Janadra L. Bolling was certified as a correctional officer by the Criminal Justice Standards and Training Commission on February 3, 2004, and was issued correctional certificate number 237692. At all times material hereto, she was employed as a correctional officer at the Century Correctional Institution. On June 16, 2007, Respondent's father was the owner of a 2005 Nissan Maxima. Respondent, who was listed as a driver, was driving that vehicle that day. On that date, Respondent asked Captain John Chance, her immediate supervisor, for permission to leave work due to having a sick child and was granted permission to leave. Later that day, Respondent called Sergeant Patricia Archie and stated that she had been in a car accident at the intersection of Highway 29 and Molino Road, totaling her vehicle. She stated that her car had rolled over twice and that she was waiting for an ambulance. Still later that day, Respondent called Captain John Chance. She advised him that she had gone to the hospital, had been examined there, and had been told not to return to work until she went to her personal physician on Monday, June 18. When Captain Chance returned to work on June 19, he was advised that no one had heard anything further from Respondent. He attempted to contact her that day but was unsuccessful. On Wednesday, June 20, Respondent called and advised Captain Chance that she had gone to her doctor on Monday, the 18th, and that he had told her not to return to work until Monday, June 25. Respondent said she would bring a doctor's note with her at that time. On June 20, 2007, Respondent's father's car was photographed in the Wal-Mart parking lot. The car did not show any collision damage, and particularly did not show the damage one would expect to see on a vehicle that had rolled over twice and been "totaled" four days earlier. On June 25, Captain Chance ordered Respondent to write a report concerning the car accident she had in June and the reason why she had failed to provide a note from her doctor as she had been required to do. Respondent advised him that she would not write a report, that she intended to speak to the Colonel instead. Also on June 25 Respondent spoke with Colonel William Watson, advising him about her accident and complaining that she was being harassed by staff (1) requiring a note from her doctor regarding her absence from work and (2) photographing a car in the Wal-Mart parking lot. The Colonel asked her if she had supplied the doctor's note, and Respondent admitted that she had not done so but that she would. A short time later she spoke to the Colonel again and said that her doctor had told her not to lift over ten pounds. The Colonel advised her that she would need to bring in a doctor's note with that limitation written on it and that she could not return to work until she was capable of performing all of her duties. On June 27, 2007, Inspector Ron Castle, who had taken the photographs of the car at Wal-Mart, contacted Respondent's father's auto insurance company, Respondent's father's auto finance company, and the Florida Highway Patrol. None of those entities had any record of an accident report or claim filed as to any accident occurring on June 16, 2007. On July 9, 2007, Respondent presented a note from a chiropractor dated July 5. The note indicated that Respondent had presented herself for treatment on June 25 with complaints of neck and lower back pain and headaches. At that time, the doctor recommended that she not return to work for two weeks. By the time the note was written on July 5, however, the doctor had released Respondent to return to her normal work activities. On July 13, 2007, Sacred Heart Hospital faxed to the Colonel a work release stating that Respondent could return to work without restrictions on July 15. The work release made no reference to any auto accident. Inspector Ron Castle, who was also employed at Century Correctional Institution, was assigned two investigations regarding Respondent. The first involved an allegation of falsifying records and documents and related to Respondent's medical excuse(s). On August 21, 2007, Respondent was placed under oath and interviewed by Inspector Castle regarding her June 16 auto accident. Respondent was uncooperative and refused to discuss her auto accident in any detail, saying it was none of Castle's business. She did, however, maintain that she had had an accident. On September 10, 2007, Respondent turned in a medical slip from a Dr. Russo dated September 4, 2007, which read "Home rest due to illness at least until 9/09/07." The original of the doctor's note retained in the doctor's file read "until 9/07/07" and not "until 9/09/07." The second investigation involved allegations of improper conduct, conduct unbecoming, refusing to answer questions during an investigation, insubordination for refusing to submit an incident report, falsifying documents, knowingly submitting inaccurate or untruthful information, and providing untruthful testimony. Respondent's earlier assertions and subsequent testimony that she was in an auto accident on June 16, 2007, which resulted in substantial damage to her car and required her to take time off from work are false. There is no evidence to support her claim: no accident report, no insurance claim, no notice to the lien holder, no damage to the vehicle, and no documentation for medical treatment related to an auto accident. Respondent submitted to her employer a medical note on which she had altered the date on which she could return to work, giving herself extra time off to which she was not entitled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her certification as a correctional officer. DONE AND ENTERED this 19th day of November, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2009. COPIES FURNISHED: Sharon S. Traxler, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Janadra Bolling Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issues in this case are whether a sign owned by the Respondent is in violation of Section 479.07(1) and 479.11(1), Florida Statutes, and, if so, what remedial action should be taken by the Department of Transportation.
Findings Of Fact Heinl's Nursery, a division of American Nursery Products, Inc., is the owner of a sign located in Dade County, Florida, on the west side of Krome Avenue (State Road 997) about 36 feet north of its intersection with S.W. 126th Street. The subject sign is located approximately 23 feet from the right-of- way of Krome Avenue. The subject sign has been at that location for a number of years. The face of the sign is made of wood and measures approximately 4 feet by 8 feet. The sign is mounted on metal poles. The message on the sign consists of the owner's name, a logo or graphic decoration, and an arrow pointing towards the right. The Department of Transportation has not issued a permit for the sign. The area in which the sign is located is not zoned commercial or industrial and is not an unzoned commercial or industrial area. The sign is not located on the business premises of the sign owner. Krome Avenue (State Road 997) is part of the federal-aid primary highway system. By notice dated March 21, 1989, the owner of the sign was advised that the sign was in violation of the applicable statutes and must be removed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing for the immediate removal of the subject sign. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of July 1989. MICHAEL M. PARRISH 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 31st day of July 1989. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Mr. Mike S. Waters 15000 S.W. 192nd Avenue Miami, Florida 33187 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed by Petitioner as an optician in the State of Florida, having been issued license number DO 003219. On March 7, 1986, Respondent was found guilty, by verdict of a jury, of the misdemeanor offense of disorderly conduct. He was placed on probation and ordered to pay restitution. As conditions of his probation, he was ordered to seek counseling, to undergo drug evaluation, and to avoid contact with the victim. On July 20, 1987, Respondent filed an application with the Florida Board of Real Estate to sit for an examination that he was required to pass to become licensed as a real estate professional in Florida. Respondent responded "yes" to the following question on that application: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "no" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "no". On January 6, 1988, Respondent filed an application with the Petitioner to sit for an examination that he was required to pass to become licensed as an optician in Florida. Respondent responded "no" to the following question on that application: Have you ever been convicted or found guilty regardless of adjudication - of a crime in any jurisdiction, or have you ever been a defendant in a military court-martial? (Do not include parking or speeding violations.) Based on his application of January 6, 1988, Respondent was permitted to sit for the examination, which was divided into parts. He failed one part of the examination, and he was not eligible for licensure as an optician until he passed the part he had failed. On July 6, 1988, Respondent filed an application with the Petitioner to retake the part of the examination that he had previously failed. Respondent again responded "no" to the following question on that application: Have you ever been convicted or found guilty regardless of adjudication - of a crime in any jurisdiction, or have you ever been a defendant in a military court-martial? (Do not include parking or speeding violations.) Based on his application of July 6, 1988, Respondent was permitted to retake the part of the examination for licensure as an optician that he had previously failed. Respondent passed that part of the examination and was subsequently licensed as an optician. Petitioner would have required additional information from Respondent had Respondent answered the subject question in the affirmative on either his application of January 6, 1988, or on his application of July 6, 1988. Respondent contends that he answered the question truthfully because the crime of disorderly conduct is no more serious than a traffic offense. Respondent also contends that he relied upon the advice of his attorney in responding to the question. Although Respondent and his attorney discussed having the conviction expunged, Respondent did not pursue expungement because of the costs involved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which revokes Respondent's licensure as an optician, but that the order of revocation be without prejudice to his right to reapply for licensure. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of May, 1991. CLAUDE B. ARRINGTON 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 7th day of May, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 9 and 10 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 11 are rejected as being the recitation of testimony and as being subordinate to the findings made. The Respondent's post-hearing submittal was in the form of a handwritten letter filed April 23, 1991. The proposed findings contained therein are rejected as being contrary to the findings made, as being irrelevant to the proceeding, or as being argument. COPIES FURNISHED: Renee Alsbrook, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 David A. Whelihan, Jr. 18456 Lost Lake Way Jupiter, Florida 33458 LouElla Cook Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether the Commercial Motor Vehicle Review Board's decision in this matter is proper; a determination that necessarily requires a finding of whether Respondent is liable for payment of a civil penalty for commission of the infraction of falsifying the log book of a commercial motor vehicle.
Findings Of Fact On February 4, 1992, Jimmy R. Holton was driving on State Road (SR) 76 in a commercial vehicle bearing Vehicle Identification Number (VIN) 1F4Y05YB8LH385086. The vehicle was owned by Respondent, Herbert W. Allen d/b/a Allen Transit. At 10:42 a.m., on that date the vehicle was stopped for inspection by Michael Roberts, a Motor Carrier Compliance Officer employed by Petitioner. Roberts examined the driver's log book and discovered the driver had pre-logged a future activity. The log reflected that the entry was made at the not yet existing time of 11:30 a.m. The officer completed his inspection and issued a Safety Report and Field Receipt which reflected his action of assessing a civil penalty of $100 for the false entry in the log book and putting the driver out of service for eight hours. The penalty was paid at that time. The vehicle was transporting automobile parts, non- hazardous material, from Jacksonville, Florida. The vehicle had left Delray Beach, Florida headed for Stuart, Florida when stopped for inspection. The vehicle's travel had occurred inside the State of Florida. The driver was maintaining a log book in compliance with legal requirements of Section 316.302(2)(d), Florida Statutes (1991), because the intrastate distance for the contemplated trip exceeded a radius of 200 air miles from Jacksonville, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered rescinding the previous imposition of the $100 civil penalty administratively imposed by Petitioner. DONE AND ENTERED this 4th day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Respondent's Proposed Findings None submitted. Petitioner's Proposed Findings 1.-2. Accepted. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Herbert W. Allen P.O. Box 742 Hiawassee, GA 30546 Vernon L. Whittier, Jr., Esq. Assistant General Counsel 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Thorton Williams, Esq. General Counsel Department of Transportation Rm 562, Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, an Administrative Law Judge of the Division of Administrative Hearings, entered October 7, 2011. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Petitioner’s notice of dismissal without prejudice of the Amended Complaint contesting the intended denial of Respondent’s application for licensure. Accordingly, it is hereby ORDERED AND ADJUDGED that Petitioner’s application for licensure as a DUI Program in the 13" Judicial Circuit is denied. — DONE AND ORDERED this | [ a day of October, 2011, in Tallahassee, Leon County, Florida. Sou _-“ SANDRA C, LAMBERT, Direct Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this { pte day of October, 2011. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal! for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Lilja Dandelake, Esquire Judson M. Chapman, Esquire Assistant General Counsels Department of Highway Safety and Motor Vehicles Donna Blanton, Esquire Bert Combs, Esquire Attorneys for Intervenor Radey Thomas Yon & Clark, P.A. 301 S. Bronough Street, Suite 200 2900 Apalachee Parkway, Rm. A-432 Tallahassee, Florida 32399-0504 Scott Boardman, Esquire David Scott Boardman, P.A. Attorney for Petitioner 1710 E. Seventh Ave. Tampa, Florida 33605 Tallahassee, FL 32301 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399
Findings Of Fact At or about 5:30 a.m., July 25, 1977, Trooper Vayda, while on radar patrol on the I-95 just north of the Dade County line, observed a car proceeding south at a speed of 85 m.p.h. and gave chase with his identification lights flashing. When the suspect was overtaken by Trooper Vayda suspect swerved towards Vayda causing the latter to move two wheels off the paved surface to avoid collision. The suspect subsequently left the I-95 at the 135th Street exit and while on the ramp with no other vehicles in view Vayda fired one shot which struck suspect's vehicle on the left side just above the bumper. Suspect ran through the stop light at 135th Street and rejoined the I-95 pursued by Vayda. Suspect again exited the I-95 at 125th Street and after turning east on 125th Street Vayda fired a second shot hitting suspect's right tail light. Suspect lost control of his vehicle and struck another car. Vayda stopped his vehicle, got out and told the suspect to get out of his car. Suspect then restarted his car and started eastward with Vayda in pursuit. In the interim Vayda had, via radio, alerted the Highway Patrol office of the chase and requested assistance. With the assistance of other law enforcement officers the suspect was subsequently apprehended on Biscayne Boulevard in Miami, Florida and found to be driving a stolen car. During the chase Vayda had no information to lead him to believe suspect was other than a speeder. As a result of firing the shots Vayda was suspended from duty for a period of eight hours by the Director of the Florida Highway Patrol. Exhibit 5, the disciplinary record of Vayda, shows that Vayda was suspended for eight hours without pay on September 7, 1977 for speeding on the Florida Turnpike on July 22, 1977. Vayda was aware of the contents of General Orders 17, 20 and 43 of the Florida Highway Patrol.
Findings Of Fact Petitioner is an insurance carrier organized and existing under the laws of the District of Columbia, and authorized by the Department to conduct business in the State of Florida. On October 13, 1982, Petitioner submitted a private passenger motor vehicle insurance rate filing to the Department. That rate filing disclosed the following effect of the requested rate revisions: Bodily Injury No Change Property Damage No Change Personal Injury 35.1 percent Medical Payments No Change Uninsured Motorist 6.2 percent Additional Personal Injury 35.1 percent Liability 9.0 percent Comprehensive No Change Collision No Change Physical Damage No Change TOTAL AUTO 5.5 PERCENT The Department conducted an initial review of petitioner's rate filing consisting of a review of premiums and prior rate history of he company, losses, expense components, and underwriting profit and investment income. The Department reviewed the rate level for all coverages included in Petitioner's rate filing, which is customary agency policy when a rate filing is made. The record in this cause establishes that even when an insurer indicates a zero percent change in coverage rate, that rate selection must he justified, in that there are instances when a rate decrease might be indicated by actuarial data. Petitioner's October 13, 1982, rate filing employs a 22.8 percent annual trend factor for Personal Injury Protection ("PIP") coverage. A trend factor is a measure, based upon past experience, which indicates the average change in the cost of claims projected one year into the future. It is, in essence, primarily a measure of the effect of inflation on average claim costs, which are influenced by such factors as wage and medical costs. Petitioner calculated its annual PIP trend factor by assigning a 42 percent credibility weight to Petitioner's countrywide data, and a 58 percent credibility weight to the National Association of Independent Insurers "Fast Track" Florida data. Although the data utilized by Petitioner is actuarially acceptable, Petitioner's methodology failed to include other accepted sources of data which greatly affect the accuracy of Petitioner's selection of a 22.8 percent annual trend factor. The record in this cause establishes that a more accurate prediction can be made utilizing additional data such as "Fast Track" trend data for both Florida and the United States; Insurance Services Office trend data; And medical and wage consumer price indexes. When data from each of these sources were collected and exponential curves and straight lines of best fit were calculated to plot a series of data points to extrapolate an annual trend range, a reasonable range for PIP trend factors was established of from between 9 to 13 percent. Although the Department objects to Petitioner's utilizing only six data points to establish its trend factor, the record in this cause establishes that a range of 6 to 12 data points is actuarially acceptable. However, based upon the information considered by Petitioner in its rate filing, and the record in this cause, it appears that a 22.8 percent trend factor is excessive. In its October 13, 1982, rate filing Petitioner selected an unallocated loss adjustment expense factor of 1.152. An unallocated loss adjustment expense factor is developed to determine a proportionate amount by which loss expenses and allocated loss expenses should be increased to reflect overhead. The unallocated loss adjustment factor is an expense item representing the cost of adjusting claims which cannot be attributed to any particular claim. Petitioner calculated its unallocated loss adjustment expense factor for its rate filing by taking the arithmetic average of the unallocated loss adjustment expense factors experienced in the years 1979, 1980, and 1981, which were, respectively, 1.205, 1.151, and 1.100. As indicated above, the average of these three years proved to be 1.152. It is undisputed that averaging the three most recent calendar years of a carrier's experience is an accepted actuarial technique. The Department objects to this approach primarily because of its contention that the 1.205 factor for 1979 is an "aberration," and that Petitioner's experience or 1979, 1980, and 1981 demonstrates a downward trend. However, the record in this cause establishes that Petitioner's actual unallocated loss adjustment expense results for 1982 produce a factor of 1.134, which result was unknown to Petitioner at the time of the filing here in question. There is no evidence of record to establish that the 1.205 unallocated loss adjustment expense factor for 1979 is other than an accurate reflection of Petitioner's experience, or that that situation might not occur again. Further, Petitioner's actual unallocated loss adjustment expense factor for 1982 of 1.134 establishes that the 1979, 1980, and 1981 unallocated loss adjustment expense factors did not establish a true downward trend. Accordingly, the record in this cause establishes that Petitioner's unallocated loss adjustment factor of 1.152 in this rate filing is reasonable. Rule 4-43.02, Florida Administrative Code, prohibits allocating an insurer's administrative expenses as a percentage of premium, rather requiring that such expenses be "flattened." In the rate filing here in question, Petitioner did not "flatten" its administrative expenses. Further, petitioner contends that, in the context of this proceeding, the "flattening" of expenses applies only to PIP and uninsured motorist coverage since other coverages do not involve a change in rates. However, as indicated above, the Department's policy is to review rates for all coverages in a rate filing so that the issue of "flattening" applies to all such coverages, regardless of the amount of change. In Petitioner's filing, taxes, licenses and fees are not listed as a fixed expense, but are included as a variable expense. As a variable expense, these fees will be charged as a percentage of premium for all coverages, a procedure specifically prohibited by Rule 4-43.02. The record in this cause clearly establishes that there are different base premium rates charged to policyholders by class and territory. Accordingly, when all of petitioner's coverages are considered, the "flattening" of miscellaneous licenses and fees could result in cost savings to high premium policyholders. As a result, the record in this cause establishes that failure to "flatten" all administrative expenses for all coverages could result in unfairly discriminatory rates. By virtue of legislation which became effective October 1, 1982, insurers are required to make available excess underinsured motorist coverage. See, Section 537.727(2)(b), Florida Statutes. Since this legislation created a new type of coverage, standard rate-making procedures do not apply. However, as a result of a study conducted by the Department, the Florida Legislature, and State Farm Insurance Company, relationships were determined between the rate for a given limit of uninsured motorist coverage and the rate for the same limit of excess underinsured motorist coverage. The relationships established by this study, which have been adopted as the policy of the Department are: 10/20 excess underinsured=1.20 x 10/20 uninsured motorist rate 15/30 excess underinsured=1.25 x 15/30 uninsured motorist rate 25/50 excess underinsured=1.10 x 25/50 uninsured motorist rate 50/100 excess underinsured=1.10 x 50/100 uninsured motor. rate It is important that a reasonable rate for excess underinsured motorist coverage be established to discourage insurers from pricing the coverage out of line with the same limit of uninsured motorist coverage, thereby discouraging purchase of that coverage. The excess underinsured motorist rates for 10/20 limits contained in Petitioner's rate filing are approximately 65 percent higher than the uninsured motorist coverage for the same limits. There is no competent actuarial data of record to justify a finding of any risk differential between excess underinsured motorist coverage and uninsured motorist coverage to explain the differential between Petitioner's proposed rate and the rate indicated by the above-mentioned study. This becomes particularly noteworthy when it is considered that other companies previously filing rates for excess underinsured motorist coverage with the Department have been substantially in agreement with, or lower than, rates reflected in that study. As previously indicated, the record in this cause contains no credible evidence to support petitioner's rate proposal for excess underinsured motorist coverage for limits less than 50/100. Effective October 1, 1982, insurers were required to file separate profit and contingency factors as a result of amendments to Sections 627.0651(3)(d), Florida Statutes, and the promulgation of Rule 4-57.01, Florida Administrative Code. Prior to that time, profit and contingency factors had been considered as one factor for rate-making purposes. The purpose of the amendments to the statute and the rule were to require insurers to reflect investment income in their motor vehicle insurance rates. In the October 13, 1982, rate filing as initially filed, petitioner showed a combined profit and contingency factor of 5 percent, and reduced rate level indications to reflect investment income. This was consistent with Petitioner's pattern of having utilized, in all recent prior rate findings, a combined profit and contingency factor of less than 5 percent after investment income. When advised by the Department of the necessity to reflect profit and contingency factors separately, Petitioner amended its application to show a zero percent profit factor and a 5 percent contingency factor. With regard to the 5 percent contingency factor, there is no evidence of record to demonstrate that Petitioner adjusted expected losses for the difference between prior rate level indications and actual selected rate changes. Further, with respect to the profit factor, the record in this cause clearly reflects that Petitioner expects to realize an underwriting profit from its contingency provision, indicating that some underwriting profit is embedded in Petitioner's contingency factor, thereby eliminating the effect of investment income on rates. Inasmuch as the profit and contingency factors in Petitioner's filing apply to all coverages, and are incorrectly filed, the rate level indications based upon these profit and contingency factors for all coverages are likewise incorrect to the extent affected by profit and contingencies. In sum, Petitioner has failed to establish the validity of its choice of a zero percent profit factor and a 5 percent contingency factor in its rate filing.
Conclusions This matter came before the Department for entry of a Final Order pursuant to submission of an Order Closing File by Lawrence P. Stevenson, an Administrative Law Judge of the Division of Administrative Hearings,. The record reflects that the parties have settled their dispute and entered into a Settlement Stipulation. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: 1. On or about May 6, 2011, Respondent paid a civil fine of $500.00 by certified cashier’s check. 2. The Settlement Stipulation of Petitioner and Respondent is adopted and incorporated into this Final Order of the Department in accordance with its terms. Respondent shall comply with all terms and conditions herein. Filed May 24, 2011 2:46 PM Division of Administrative Hearings DONE AND ORDERED this at day of May, 2011, in Tallahassee, Leon County, Florida. Copies furnished: Carl Broglin Post Office Box 3683 Ocala, Florida 34478 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Dwight Davis, Bureau Chief Division of Motor Vehicles Wayne Jordan, Program Manager License Installer Program Ubld . Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this aeeaay of May, 2011. Nalini Vinayak, Dealer weconse Administrator
