The Issue The issue is whether Respondent is guilty of discrimination in employment on the basis of age.
Findings Of Fact Petitioner Boots is 56 years old. Prior to his termination, he had been employed in the life insurance business by Respondent or its predecessors for over 20 years. Until early 1988, Petitioner's employer was Security Trust Life Insurance Company. During that year, Respondent or its parent, Southlife Holding Company, purchased the assets or stock of Security Trust Life Insurance Company. In any event, the result from Petitioner's point of view was that Respondent became his new employer. Following the change in ownership, the operations of the two companies were combined. Prior and subsequent to the merger of operations, Petitioner was the manager of the Orlando district office, which was primarily involved in the sale of debit insurance. The physical turnover of operations in the Orlando office took place on or about March 7, 1988. Prior to this date, representatives of Respondent had conducted meetings with the employees of Security Trust Life Insurance Company and discussed with them, among other things, the compensation that they could expect to receive as employees of the new company, especially during the start-up period. Following the merger, Petitioner believed that Respondent was not living up to the promises that it had made to him and the employees under his supervision. Unable to reach his immediate supervisor, Petitioner called Ted Lazenby, who is president and chairman of the board of Southlife Holding Company. Petitioner voiced his complaints to Mr. Lazenby. Following the telephone conversation, Mr. Lazenby contacted Petitioner's immediate supervisor, Frank Gregor, and expressed his displeasure with Petitioner and his attitude. Mr. Gregor consulted with his immediate supervisor, James C. Bellamy, who is the senior vice president of Respondent. Messrs. Gregor and Bellamy had previously discussed Petitioner's attitude that Respondent was poorly managed and cheap with its employees. Messrs. Gregor and Bellamy had already discussed Petitioner's record with Respondent. In general, it was not good, and the Orlando district did not show signs of the kind of growth necessary for a successful debit insurance business. Petitioner's production record was the worst in the division and the region. The manager of the next-worst district was also fired. With Mr. Lazenby's complaint as a catalyst, Messrs. Gregor and Bellamy decided to terminate Petitioner. The following morning, Mr. Gregor visited Petitioner in the Orlando office and fired him, citing Petitioner's poor record combined with questionable judgment in complaining to the head of the holding company. Respondent replaced Petitioner with a 44 year old man, who had been assistant manager of the Orlando office.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 16th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 on this 16th day of June, 1989. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-7 Adopted or adopted in substance. There was a conflict in testimony between Mr. Gregor and Petitioner as to when the merger took place. Mr. Gregor's testimony has been given the greater weight, but the difference is immaterial to the outcome of the case. 8-9 Rejected as subordinate to the finding that Petitioner's performance was substandard. Rejected as against the greater weight of the evidence. Adopted. Rejected as irrelevant. Treatment Accorded Proposed Findings of Respondent 1 Adopted 2-3 Rejected as legal argument. 4-6 Adopted. Rejected as recitation of testimony. Adopted. Rejected as irrelevant and subordinate. 10-12 Adopted in substance. 13-15 Rejected as subordinate. 16. Rejected as recitation of testimony. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 N. James Turner Buso & Turner, P.A. 17 South Lake Avenue, Suite 104 Orlando, FL 32801 Joseph A. Woodruff Waller Lansden Dortch & Davis 2100 One Commerce Place Nashville, TN 37239
The Issue The issue in this case is whether Petitioner is entitled to receive supplemental compensation under the Firefighters Supplemental Compensation Program.
Findings Of Fact At all material times, Petitioner has been employed as a firefighter with the City of Deland Fire Department. By submitting course transcripts on September 18 and 20, 1989, Petitioner applied to the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance for additional compensation under the Firefighter Supplemental Compensation Program. The course transcripts were from Brevard Community College and Valencia Community College. The Brevard transcript showed that, over a four-year period ending September 13, 1989, Petitioner had earned 69 semester credit hours, for which he was awarded an associate in arts degree in August, 1988. (All credit hours reported below are semester credit hours.) The courses for which Petitioner earned credits at Brevard are as follows (three credit hours for each course unless indicated otherwise in parentheses): general psychology, general chemistry I and II, general chemistry lab I and II (each 1), engineering graphics (4), college algebra, weight training (1), communications I and II, stage band (1), archery (1), fundamentals of speech communication, swimming (1), college trigonometry, first aid and safety (2), organic chemistry I and II, organic chemistry lab I and II (each 1), academic/career planning, U.S. history I and II, oceanography, introduction to physical geology, cardiopulmonary resuscitation (1), tennis (1), survey of American literature, contemporary humanities of the 20th century, and--following the receipt of the degree-- developmental psychology. After earning his associate in arts degree, petitioner took ten credit hours at Valencia Community College during the second session of the 1988-89 school year. The courses and their credit hours are: fundamentals of emergency medical technology (4), fundamentals of emergency medical technology practice (3), and emergency medical technician clinical practicum (3) By notice dated October 18, 1989, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that the information that he had submitted for entry into the Supplemental Compensation Program was not acceptable. The notice explains that Petitioner "does not have 18 hours fire science within degree transcript." The notice advises at the bottom: "When you have all of the appropriate paperwork properly filled out, please resubmit." By letter dated November 8, 1989, Frederick C. Stark, Chief of the Bureau of Fire Standards and Training, informed Petitioner that his transcripts failed to disclose a "major study concentration area" to qualify for supplemental compensation. The letter quotes Rule 4A-37.071(2), Florida Administrative Code: The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically identified in Rule 4A-37.073 are considered by the Division to be readily identifiable and applicable as fire-related. The letter advises Petitioner of his right to a hearing. Following some communications from Petitioner, Mr. Stark wrote another letter to Petitioner dated November 27, 1989. The letter states in its entirety: After further review of your transcript from Valencia Junior College, may I suggest that you take the necessary courses needed to get an Emergency Medical Technology degree. I feel that this would be the best way to go since you already have courses in this area. If I can be of any further assistance please call me at [number omitted]. Petitioner re-enrolled in Brevard Community College for the second semester starting January 8, 1990. He completed a three-credit hour course in statistics and a two-credit hour course in medical terminology. He also received credit, through a CLEP examination, for four credit hours in general biology. On June 18, 1990, Petitioner resubmitted the transcript materials showing the additional coursework at Brevard Community College. By letter dated July 10, 1990, Mr. Stark informed Petitioner that his application for entry into the Firefighters Supplemental Compensation Program had been denied for noncompliance with Section 633.382, Florida Statutes, and Chapter 4A-37, Florida Administrative Code. The letter quotes Rule 4A-37.085(2) as follows: "To be eligible to receive the Supplemental Compensation provided for by Section 633.382(3), Florida Statutes, the following requirements must be met: Possess an eligible Associate or Bachelors Degree." Prior to advising of a right to a hearing, the letter concludes: "it has been determined that your Degree is not readily identifiable and applicable as fire-related, per Rule 4A- 37.084. By letter dated July 17, 1990, to the Bureau of Fire Standards and Training, Petitioner requested a formal administrative hearing. The letter states that Petitioner had at least 18 semester hours readily identifiable and applicable as fire-related. In the July 17 letter, Petitioner asserts that he had called Mr. Stark prior to taking the additional courses and had been told that he needed only six additional semester hours, because he had 12 semester hours in approved courses. The letter claims that Mr. Stark had approved specific courses prior to Petitioner's taking them and had said it was unnecessary to confirm anything in writing. Petitioner complains in the letter that he was only lately told that he could meet the 18 semester-hour requirement only by earning a new associate degree. To earn an associate in arts or associate in science degree from Brevard Community College, a student must satisfy various requirements, such as completing a "prescribed course of study which includes at least 64 semester hours of credit," according to the college catalog. The associate in arts degree offers no opportunity to declare a major. 1/ The associate in science degree offers various majors. The associate in science technical program offers a major in fire technology that is designed to "qualify fire personnel for career advancement." The coursework described in this program represents strong evidence of the kind of courses that are fire- related. The coursework for the associate in science degree with a major in fire technology requires, among other things, the following courses and credit hours: two English courses (3 each), one physical science course (3), one chemistry course (3), one algebra course (3), two government courses (3 each), one human relations course (3), and two physical education courses (1 each). Although Petitioner did not take the identical courses required for the associate in science degree with a major in fire technology, he took comparable courses that, in each case, were more difficult than those required for the associate in science degree. The courses that Petitioner took that correspond in subject matter and credit hours to the Brevard requirements for a major in fire technology are: general psychology (3), general chemistry I (3), college algebra (3), communications I (3), fundamentals of speech communication (3), weight training and swimming (2), and U.S. history I and II (6). Other fire-related courses are first aid and safety (2) and cardiopulmonary resuscitation (1). Petitioner thus earned, prior to receiving his associate in arts degree, 26 hours in courses that are readily identifiable and applicable as fire-related. Valencia Community College is similar to Brevard Community College in offering no majors within the associate in arts degree. Valencia's associate in science degree with a major in fire science requires the following courses and credit hours: composition (3), U.S. government (3), psychology in business and industry (3), business math (3), fundamentals of speech (3), technical communication (3), introduction to general chemistry (4), introduction to sociology (3), and humanities (3). when measured against the requirements of Valencia Community College for a major in fire science, in terms of subject matter and credit hours, Petitioner earned a total of 25 or 28 credit hours in fire-related courses. Adding the first aid and cardiopulmonary resuscitation courses, Petitioner earned, in this comparison to the Valencia requirements, between 28 and 31 credit hours in courses that are clearly fire-related and within a major study concentration area that is fire-related. Neither an associate nor bachelor degree is required for Petitioner's present job as a firefighter. His job responsibilities include preventing and extinguishing fires, maintaining firefighting equipment, and conducting life support activities. His specific responsibilities include raising and climbing ladders, using chemical extinguishers, performing rescue activities, conducting fire education, performing life-support activities, and attending training courses to learn more about fire prevention and protection.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Insurance, Division of State Fire Marshall, issue an amended final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly commencing no later than the first full calendar month following the date of the initial final order entered in this case. RECOMMENDED this 11th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 11th day of April, 1991. COPIES FURNISHED: Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300 Attorney Lisa S. Santucci Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Peter T. Campbell, III 445 Clarewood Boulevard Titusville, FL 32796
The Issue Here Petitioner has alleged that Respondent has violated Section 120.535, Florida Statutes, by failing to adopt its policies as rules. Those alleged policies are more completely described in the fact finding.
Findings Of Fact Mitchell has been subjected to the proposed agency action set forth in the order to show cause described in the preliminary statement. James Mitchell and Company, JMC Insurance Services, Inc., and JMC Financial Corporation are California corporations authorized to do business in Florida. JMC Insurance Services, Inc., and JMC Financial Corporation are wholly owned subsidiaries of James Mitchell and Company. James K. Mitchell is a resident of California. He is the president, chief executive officer and founder of James Mitchell and Company. He is also licensed by the Department as a nonresident life insurance agent. The Department is a regulatory agency in Florida who has the responsibility for implementing and enforcing the Florida Insurance Code. The Florida Insurance Code includes Chapters 624 and 626, Florida Statutes. The Department is headed by the Insurance Commissioner and Treasurer. The order to show cause forms the sole basis for action taken against Mitchell. The order to show cause has allegations by the Department concerning alleged violations of Section 626.988, Florida Statutes, attributed to Mitchell. It is the alleged interpretation which the Department has placed on Section 626.988, Florida Statutes, which Mitchell asserts is in violation of Section 120.535, Florida Statutes. The present petition sets forth that Mitchell's substantial interest are affected in accordance with Section 120.535(2)(a)1, Florida Statutes, in that: JMC is substantially affected by the Department's interpretation of s. 626.988 in that the Department would use the interpretation to require JMC to cease and desist from all current business activities in Florida, i.e., JMC's sale of annuities to Barnett as trustee to hold in trust for the benefit of trust participants/beneficiaries. The present petition then describes those agency statements by the Department which Mitchell claims constitute a rule as defined by Section 120.52(16), Florida Statutes, and thus subject to the requirements of Section 120.535(2)(a)2, Florida Statutes. The first statement by the Department which Mitchell claims violates Section 120.535(1), Florida Statutes, is to this effect: Abandoned Former Section .003 of Rule Chapter 4-223. Pursuant to Section 120.535(2)(a)(2) and 120.535(2)(b), the text of one of the statements which substantially affects JMC is the text of former Section .0003(2) (now abandoned) of Rule Chapter 4-223, promulgated by the Department on October 16, 1992 (copy attached as Exhibit F). The text of former Section .003(2) is as follows: For purposes of this entire rule chapter and enforcement of Section 626.988, Florida Statutes, the Department interprets the terms "associated" and "associate" as those terms are used in Section 626.988, as meaning: united in a relationship, or connected or joined together, or connected in mind or imagination. Therefore instances of prohibited association included, but are not limited to, situations wherein an agent or solicitor, themselves or through their employer: is in law or fact related or connected to the Financial Institution, as by formal or informal arrangement, contract, etc.; or is or may reasonably be expected to be connected with the Financial Institution in the mind or imagination of the general pubic using the Financial Institution's facilities, as a result of the agent or solicitor's presence or activities on Financial Institution premises, or other conduct or activities by the agent or solicitor or done with their consent. Section .003(2) of Rule Chapter 4-223 was promulgated ostensibly under F.S., s. 626.988(2), which provides: (2) No insurance agent or solicitor licensed by the Department of Insurance under the provisions of this chapter who is associated with, under contract with, retained by, owned or controlled by, to any degree, directly or indirectly, or employed by, a financial institution shall engage in insurance agency activities as an employee, officer, director, agent, or associate of a financial institution agency. By its terms Section .003(2) of Rule Chapter 4.223 defines the "associated" and associate" language in F.S. s.626.988(2). On July 30, 1993, the Department's Section .003(2) "mind or imagination of the consumer" definition of the "associated" and "associate" language in s. 626.988(2) was struck down by DOAH Hearing Officer Mary Clark in the Rule Challenge as irredeemably vague and exceeding proper agency discretion. In her Final Order in this proceeding, Officer Clark concluded as follows: Aside from idiosyncratic grammar and the ambiguous use of an open-ended "etc.," this definition offends any rational interpretation of s. 626.988, F.S. and is thoroughly useless as a standard for the agency's enforcement of that and other relevant statutes. It is vague and incomprehensible, like beauty, an "association" lies in the eyes (or mind) of the beholder. The definition relegates to the mind or imagination of the general public the determination of what relationships are prohibited. This is a fragile basis for enforcement, as should be apparent to the agency by the fact that so few complaints have come from the general public. That such definition is unenforceable is obvious from the agency's pained attempts to craft its earlier guidelines and from its inability to articulate how it should be applied. (see generally, testimony of Dowdell and Shropshire). Proposed Rule 4 Final Order, Great Northern Annuities Corp. v. Department of Insurance, et al., No. 92-4332RP, etc., paragraph 56, at 29 - 30 (July 30, 1993)(Copy attached as Exhibit C). As noted above, Officer Clark's Final Order in the Rule Challenge was appealed in part by the Department. However, the Department did not appeal that portion of the Final Order striking down Section .003(2), the definition of "associated" and "associate" when the Department noticed its appeal on August 15, 1993, and filed its amended notice of appeal on August 27, 1993 (copies attached Exhibits D and E). On October 10, 1993, the Department filed Rule Chapter 4 State. The Rule Chapter as filed on October 10, 1993, did not include Section .003(2), and included no other rule interpreting "associated" or "associate" from F.S. s. 626.988(2). The Department has abandoned Section .003(2) (Rule Chapter 4 rule defining the "associated" and "associate" language in F.S. s. 626.988(2), and has abandoned any and all other efforts to promulgate a rule defining "associated" or "associate." Despite the Department's voluntary abandonment of Section .003(2), the Department is now relying on the substance of its Section .003(2) "mind or imagination of the consumer" definition of "associated" and "associate," and is attempting to enforce this definition in its Order to Show Cause filed against JMC on March 11, 1993, and now pending in DOAH before Hearing Officer Chad Adams. Department of Insurance v. James Mitchell & Co. et al. DOAH Cased No. 93-2422 (hereinafter the "Order to Show Cause Proceeding") (copy attached as Exhibit A). The Department has admitted its reliance on the abandoned Section .003(2) "mind or imagination of the consumer" definition. In a deposition on December 22, 1993, in the Order to Show Cause Proceeding of Douglas A. Shropshire, the Department's Director of Division of Legal Services and its Rule 1.310(b)(6) designated Department representative, the Department stated the following: [p. 136] Q: There is no current rule defining [F.S. Section 626].988, subparagraph (2) with respect to what is or is not an association at this time, correct? A: No, I wouldn't say that at all. [p. 212] . . . Q: What is the definition of "associate" for the purposes of the enforcement proceeding against my client [JMC]? Mr. Silverman [Department attorney]: Objection. The order to show cause doesn't use the term "associate," it uses the term "association." The term "associate" is only used in Webster's dictionary definition. [p. 218] . . . Q: All right. So that in defending JMC next month, am I able to rely on the association definition that uses "in the mind of the customer" as a standard? [p. 219] . . . Q: Answer yes or no first, please. A: No, I can't. What you should rely on is the guidelines, I believe, and I refer there to the '85, '86 [guidelines], and the Department's concern with appearances. Shropshire depo 136, 212, 218, 219 (emphasis added) (copies of these pages attached as Exhibit F). "[T]he Department's concern with appearances" that the Department's representative testified to, a concern that focuses on the possible perceptions of the consumer, merely recapitulates the Department's "mind or imagination of the consumer" definition in abandoned Rule Chapter Section .003(2). (The 1985 and 1986 Department guidelines, to which the Department representative also refers to in this testimony, do not contain a definition of, or refer directly to, the "associated" or "associate" language in s. 626.988(2)). The foregoing statements have not been adopted by the rulemaking procedure provided for in F.S. ss. 120.535(1) and 120.535(1)(a)3. The statements have been struck down by Officer Clark, are not currently contained in any promulgated rule, and have been abandoned as the basis for any rule as a result of the Department's decision not to appeal Officer Clark's Final Order striking the statements.
The Issue At issue is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, respondent, James Brian Cantwell, was licensed by petitioner, Department of Insurance and Treasurer (Department) as an insurance agent. At all times pertinent hereto, respondent was, pursuant to a written agreement of appointment dated January 11, 1993, appointed as an agent for Capital Security Life Insurance Company (Capital) to solicit applications for insurance on behalf of Capital. In exchange therefor, Capital obligated itself to pay respondent such commissions, progress and persistency bonuses, and service fees due under its schedule of compensation for policies issued as a result of applications submitted by respondent. Following respondent's resignation in October 1993, Capital undertook an audit of respondent's accounts. Such audit revealed that between March 17, 1993, and September 23, 1993, respondent submitted to Capital fifty applications for insurance in the name of fictitious or non-existent persons, and that in reliance on each application Capital had issued a policy of insurance and had paid respondent the total sum of $4,035.09 in first-year commissions, progress and persistency bonuses, and service fees for securing such policies. 1/ Such audit further demonstrated that each of the fifty policies lapsed following issuance due to nonpayment of premium. As a consequence, Capital lost the premiums it would have earned had the policies been predicated on legitimate applications and had they remained in effect; however, the value of that loss is not of record. The out-of-pocket loss to Capital as heretofore noted, of $4,035.09, has, however, been established.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order revoking the licenses and eligibility for licensure of respondent, James Brian Cantwell. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of March 1995. WILLIAM J. KENDRICK 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 1st day of March 1995.
