Findings Of Fact Respondent is licensed by Petitioner to act as a General Lines Agent and, as such, engages in the business of soliciting, procuring and transacting the sale of motor vehicle insurance in Gainesville, Florida, under the name "University Insurance". Prior to November 13, 1979 Petitioner undertook agency action in the form of inquiry and investigation calculated to determine whether Respondent was transacting the sale of automobile insurance in violation of Chapter 626, Florida Statutes, and that said agency action was undertaken without prior notice from Petitioner to Respondent and without Respondent's knowledge. On November 13, 1979 Petitioner filed and served an Administrative Complaint charging Respondent with several violations of the Florida Insurance Code and expressing Petitioner's intent to revoke Respondent's license to act as a General Lines Agent. On February 25, 1980 the aforesaid Administrative Complaint was dismissed without prejudice for reason that Petitioner had failed to provide Respondent with adequate notice of its belief that sufficient information existed to find probable cause for charging Respondent to the extent expressed in said Administrative Complaint. Subsequent to November 13, 1979, through October, 1980, without prior notice to Respondent, Petitioner continued to undertake agency action in the form of inquiry and investigation calculated to gather information supportive of Petitioner's previously made determination that Respondent follows a general business practice in transacting the sale of automobile insurance that is in violation of Chapter 626, Florida Statutes. Pursuant to the above-described agency action, on May 9, 1980, Petitioner served on Respondent a Notice of Intended Administrative Action charging Respondent with violation of Chapter 626, Florida Statutes, and expressing Petitioner's intent to revoke Respondent license to act as a General Lines Agent. On May 28, 1980, Petitioner supplemented the aforesaid Notice to add additional grounds for the charges made therein. Respondent, through counsel, replied to the aforesaid Notice and Supplement in writing, stating that the agency action taken by Petitioner in conducting the above-described inquiry and investigation and in making the above-described determinations is unlawful and wrongfully subjects Respondent to egregious loss and damage. On June 17, 1980, Petitioner filed and served an Administrative Complaint charging Respondent with violation of Chapter 626, Florida Statutes, and expressing Petitioner's intent to revoke Respondent's license to act as General Lines Agent. On August 25 and October 17, 1980, respectively, Petitioner amended the July 17, 1980 Administrative Complaint to add additional grounds for the aforesaid charges. The June 17, 1980 Administrative Complaint, amended as aforesaid, is the subject of administrative proceedings being conducted pursuant to Section 120.57(1), Florida Statutes, and in respect of the allegations set forth in said Administrative Complaint, as amended, the following material facts are admitted: That Respondent, as the General Lines Agent of Record d/b/a University Insurance Agency, Gainesville, Florida, or one of his agents or employees, transacted the sale of motor vehicle insurance and an automobile club membership to each of the persons identified in Counts I through XVIII on or about the dates stipulated in each of said Counts, excepting the date stipulated in Count V; That as an incidence of transacting each and every such sale, Respondent, or one of his agents or employees, charged each of the persons identified in Counts I through XVIII for a membership in an automobile club in addition to the cost charged for motor vehicle insurance; That as an incidence of transacting each such sale, Respondent, or one of his agents or employees, forwarded the respective applications executed and the premiums paid for motor vehicle insurance and an automobile club membership to the respective companies concerned; and That Deborah Zeller is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Billy Joe Haynes; That Gail Livingston is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Deborah E. Boyles, Delores C. Golden, and David or Sandra Maxey-Dickson; That Mona Cayce is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Peter H. Gloodt, Jacquelyne C. Williams, and Susan F. Rudder; That Joan Roberts is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Andrew J. Ciucio; That Pamela Polcover is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Debborah [sic] Lee Abramson, Walter W. Griffin, and Emily L. Crep; That Cheryl McLaughlin is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Robin Sweet and George L. Chamberlin; That Kim Gary is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to James E. Rippy, Jr., and Russell W. Rowe; That Elizabeth Borne is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Louvenia Gainey and Robert E. Dow; and That Caren Frost is one of Respondent's employees who participated in the transaction of the sale of motor vehicle insurance and an automobile club membership to Barton K. Hulett. At all times here relevant Respondent was licensed as noted in Finding No. 1 above and was the General Lines Agent of record for the University Insurance Agency of Gainesville, Florida (University). University catered to young drivers generally with poor driving records who were uninsurable, or insurable only at high premiums by standard risk insurance companies. Respondent advertised for this class of clientele and specialized in providing automobile insurance through substandard companies. In addition to forms of automobile insurance sold, Respondent, by and through his employees, sold memberships in several motor clubs. Many of Respondent's customers wanted the minimum amount of automobile insurance necessary for them to comply with Florida law and expressed that desire when inquiring about the cost of coverage or when actually obtaining a policy. Respondent, during all times here relevant, employed several sales persons who wrote automobile insurance policies for clients which were accepted on behalf of the underwriter by Respondent as General Lines Agent. These employees were paid a bonus on the amount of insurance sold and an additional and separate bonus on the motor club memberships sold. Commissions on motor club memberships were as high as 80 percent of the premium and bonuses given by Respondent on motor club memberships were one- third of that commission. Florida Statutes, Section 627.733 requires owners of motor vehicles required to be registered in this state to maintain security to provide certain benefits without regard to fault. This security may be provided by the registrant taking out an insurance policy providing personal injury protection (PIP) in specified amounts. Accordingly, all clients of Respondent purchased PIP. Since the commission on PIP was 10 to 15 percent of the premium, if no additional coverage was purchased by the insured, the premium received by Respondent's agency was barely sufficient to cover the cost of writing PIP coverage When a call was received at University for a quote on the price for minimum coverage required by Florida the caller was usually given a total quote which included PIP and motor club membership without being told the quote included a separate charge for motor club membership. Motor club memberships came in several denominations with the cost varying with the additional services provided. Sometimes customers came in with their policy from another agency to see if University could give them a better price. Looking over the old policy the salesperson could determine how much they could save the customer, and often this savings would determine the class motor club membership sold to the customer. Even without the former policy, Respondent's employees knew generally how much the customer had to pay at another agency and, therefore, how much they could save the customer. Generally, the greater the difference between the price the customer paid for insurance at another agency and the price this coverage could be provided by Respondent, the more costly would be the motor club membership provided. Only if specific inquiry was made by a customer would he learn that he was paying (or being charged) extra for motor club membership in the total amount he was billed. Although Respondent's employees testified that they never intentionally deceived any customer or failed to advise customers regarding the costs of the coverages they were getting, on cross-examination these witnesses acknowledged that they emphasized only the total cost and gave no breakdown to the insured for PIP, uninsured motorist, liability, collision, comprehensive or motor club. When they did run down the coverages provided for the premium charged, they used the phrase "towing and road service" as being included rather than "motor club". Most of the complaining witnesses were unaware they were road service" Standard procedure followed at University was that after writing up the coverages, the salespeople had the customer sign several documents, among which was an application for motor club membership. Respondent contends that by having these applications signed, the customer was made aware that he was being charged extra for motor club membership. At one time during the period here involved, Mrs. Finn, wife of Respondent and a registered 220 Agent who helped Respondent manage the Gainesville office, inquired of the Deputy Insurance Commissioner in Gainesville, a Mr. Quigley if it was permissible to refuse to write PIP coverage only. She was told that was permissible and she instructed all of the employees writing policies that they were not to write PIP alone but to include motor club, liability or other coverages with this coverage. Some three months later, after customers complained about the refusal of University Insurance Agency to sell PIP alone and demanded their right to purchase only PIP if they so desired, Mrs. Finn again called Quigley to report that some customers had insisted they had the right to buy PIP alone and asked if that was correct. A day or two later Quigley advised Mrs. Finn that the Agency did have to offer PIP only if that is what the customer wants. (Tr. p. 581). Thereafter, Mrs. Finn testified, "We immediately changed and started writing PIP only if we really had to". (Tr. p. 582) The testimony of Respondent's witnesses who sold policies to the complaining witnesses has been considered in the light of this background and their admissions that they do not remember the specific transactions complained of. But for Count IV each count of the Administrative Complaint was supported by the testimony of a complaining witness. Respondent and his employees denied any intent to deceive or refuse to sell insurance without including motor club membership. With respect to Counts I through XVIII the following findings are made: Count I. Billy Joe Haynes purchased automobile insurance from University on September 11, 1978. After calling several agencies to get bids on the minimum coverage he was required to have, University gave him the lowest bid. He told them he wanted the minimum coverage which he understood to be PIP and collision insurance to protect the bank which had purchase money liens. He signed the papers prepared for him and was unaware that he had also purchased motor club membership until some time later. During his telephone conversation and his acceptance of the policy at the office the question of motor club membership never came up. Had Haynes been aware motor club membership was included in his coverage he would not have accepted the insurance policy. Count II. Deborah Boyles on April 16, 1979 purchased automobile insurance from University. She asked only for liability coverage and signed the papers presented to her. Later she learned that she had also been sold a motor club membership which she never asked for and which had never been discussed with her. She did not desire to purchase motor club membership and would have been unaware she had paid for such coverage had she not gone to the office of the Insurance Commissioner in Gainesville for another reason and been asked to check her papers for this membership. Count III. Peter Gloodt purchased automobile insurance from University on July 15, 1978. This policy included a motor club membership which Gloodt did not request, did not want, and was unaware that he had purchased. Gloodt went to University to purchase PIP only, told the girl processing his application he wanted minimum coverage he could buy, was quoted one price for the policy, signed the papers presented to and later learned that he had been sold and charged for a motor club membership. The explanation given him that the policy included road towing services was presented in such a manner Gloodt was not aware there was a separate charge for such service. When his policy accompanying papers arrived in the mail Gloodt became aware that he had been charged $50 for motor club membership. He went back to University to complain, talked to the person who had sold him his policy, was told that he had signed papers applying for such membership and that the agency did not like to write PIP only. When Gloodt got angry and raised his voice the employee gave him cancellation forms to sign and he left the agency. When some two months passed and he had not received a refund, Gloodt went to the office of Insurance Commissioner in Gainesville to complain. Thereafter he was refunded most of the premium paid for the motor club membership. Count IV Petitioner presented no evidence with respect to this count. Count V. Deborah Lee Abramson purchased automobile insurance from University on February 12, 1979. (Tr. p. 248). She asked for only the required coverage to permit her to "drive legally". After signing the papers prepared for her signature Ms. Abramson was told motor club membership was part of the package and that she had to take it. She protested that she had AAA and didn't need another motor club and did not want to pay for something she didn't need. However, she was told by one of Respondent's employees that she couldn't get the insurance without motor club membership. Count VI. Susan Rudder purchased automobile insurance from University on August 8, 1978. She, too, was a member of AAA, had no need for another motor club membership, and would not have accepted knowing a separate charge was involved. The person preparing Ms. Rudder's applications for her signature advised her that the price included all coverages desired and towing and road service. No additional price was indicated for the motor club and Ms. Rudder assumed from the manner in which motor club was presented, that there would be no separate charge for this road service. When she contacted the Insurance Commissioner's Gainesville office on another matter she learned she had paid $30 for a motor club membership. Count VII Robin Sweet purchased automobile insurance from University on May 8, 1979. Ms. Sweet was also a member of AAA and asked University for the necessary coverage to protect herself from liability in case she struck someone with her car. At the time she signed the papers prepared for her signature Ms. Sweet admits she didn't read them before signing but relied upon University to provide her with the coverage risked for. A short time later when contacted by the Deputy Commissioner's office in Gainesville to inquire if she had purchased motor club membership from University, Ms. Sweet replied no and was asked to check her policy. When she did she learned she had been charged $35 for a motor club membership she didn't want, didn't ask for, and would have refused if made aware she was being charged extra for this membership. Count VIII. Walter W. Griffin purchased automobile insurance from University on July 19, 1979. He, too, requested the minimum coverage to comply with Florida law and was told the premium would be $60-odd which included a separate charge for motor club membership. When he said he didn't want motor club membership and questioned the necessity of buying it, he was told the Insurance Commissioner had approved University's practice not to sell minimum coverage without including motor club membership. Count IX. George L. Chamberlin renewed his automobile insurance coverage with University on March 28, 1979. At this time he signed an application for motor club membership. No reference was made to the motor club membership and Chamberlin was unaware he was being sold motor club membership. Had he known, he would not have taken this road service coverage. When visiting the Insurance Commissioner's office in Gainesville to complain about another matter he learned that he had been charged for a motor club membership by University. Count X. James Edward Presley a/k/a James Elvis Rippy, Jr., before a recent name change, purchased automobile insurance from University on September 12, 1979. While his application was being prepared for his signature he noticed motor club membership was included which he did not want and did not believe he was required to buy. He even went to Finn to complain that he didn't want the motor club membership and didn't think he was required to take it. Finn talked to the girl preparing Presley's applications but the end result was that Presley had to take motor club if he wanted only PIP coverage. After signing the necessary papers, including an application for motor club membership, Presley complained to the Deputy Commissioner in Gainesville. Count XI. Emily L. Crep renewed her automobile insurance policy with University on January 27, 1980. She told the employee preparing her application that she wanted the same coverage she had the previous year. Ms. Crep was aware this included motor club membership but was not aware that she was being charged a separate fee of $25 for this membership. Had she known there was a separate charge, she would not have purchased it. Ms. Crep submitted a claim for towing service after she learned she had paid for motor club membership and had complained to the Deputy Insurance Commissioner. This claim was paid by the motor club but was not covered by the club membership. Ms. Crep had not refunded the money at the time of the hearing. Count XII. Delores Golden purchased automobile insurance on behalf of her husband, McIvor Golden, from University on November 2, 1978. At this time McIvor Golden's automobile insurance had been cancelled and Mrs. Golden told the University employee preparing her application that she wanted everything in the way of coverage needed to comply with the law. Several documents were prepared for her husband's signature and she signed his name on the documents presented for signature. Although Mrs. Golden denies that she or her husband signed Exhibit 15, application for motor club membership, it is concluded that this document was signed by her at the same time she signed the other documents at University. No discussion was made regarding motor club membership and Mrs. Golden didn't know she had applied for and had been charged for auto club membership until she went to the Insurance Commissioner's office in Gainesville to complain about another matter. COUNT XIII. Sandra Maxey-Dickson called University to discuss her car insurance following receipt of a renewal notice from University, She and her husband owned three cars and wanted only minimum coverage on the two older cars and more coverage on the newest car. She was quoted a price for the coverages she asked for. No mention was made of motor club membership and no request for such coverage was made. On May 5, 1979 David Maxey-Dickson, husband of Sandra, proceeded to University where he executed the papers that had been prepared for his signature. At the time he signed these papers, which included applications for motor club membership for the three cars, no mention was made of motor club membership and David Maxey-Dickson was unaware he was purchasing and being charged for this coverage. Had he known, he would not have taken motor club membership. Count XIV. Louvenia Gainey purchased automobile insurance from University on January 4, 1979, right after she had purchased a new car, and the dealer called University for coverage. At the time she signed the papers prepared by University she signed an application for motor club membership. She was not advised there was an extra charge for this motor club membership or that she even had this coverage. Had she been advised at the time, she would have declined to purchase motor club membership. Subsequently, Ms. Gainey was contacted by the Tallahassee office of Petitioner to inquire if she was aware she had motor club membership. She was not aware of this until she rechecked her policy and the accompanying documents. Count XV. Russell Rowe renewed his automobile insurance from University on December 22, 1978. He wanted property damage and liability and was quoted a price for this coverage. When the papers were presented for his signature, he saw that a motor club membership was included for an additional price which had been included in the quote given him. When he said he didn't want motor club, he was told they included motor club in all policies. To his statement they couldn't force him to buy motor club, the University employee responded they didn't have to sell him insurance. Since his policy was about to expire, Rowe accepted the motor club membership and shortly thereafter proceeded to the Insurance Commissioner's Gainesville office to ascertain where he stood with regard to motor club membership. He then cancelled his entire policy with University and moved his coverage to another company. Count XVI. Jacqueline Williams purchased automobile insurance from University on February 14, 1979. When she went to University she told the girl who served her that she wanted the minimum coverage to legally drive in Florida. She was given a quote of about $100. When the papers were presented for her signature Ms. Williams noted motor club membership was included and asked if this was to cost more. She told motor club was included in the price quoted . When her policy arrived, Ms. Williams saw that she had been charged $35 for motor club membership and called University to say she didn't want the motor club. The girl at University replied that it was their policy to sell motor club with PIP coverage. Count XVII. Barton K. Hewlett purchased automobile insurance from University on March 28, 1979. He desired liability coverage and in addition he received membership in an automobile club. Hewlett knew that he was paying fur a club membership but believed that it was part of a package deal which he had to take to get the liability coverage. Count XVIII. Robert F. Dow purchased automobile insurance from University on November 20, 1979. Before going to the office, he telephoned University and got a quote on the liability, comprehensive and collision coverage he desired. He then went to the office, discussed the coverage he was getting, signed the papers presented to him, made a down payment and financed the balance of the premium. The total premium was approximately $600. Motor club membership was not mentioned to him and he was unaware that his premium included a charge for a motor club membership. At the time, Dow was a member of the Amoco Motor Club and would have declined another motor club membership had he known he was being charged for one. Dow's testimony that he was unaware he was being charged extra for motor club membership is corroborated by comparing a copy of the premium finance agreement he was given at the time he purchased his automobile insurance (Exhibit 42) with carbon copy of the same premium finance agreement forwarded to Perry and Company, the premium finance company (Exhibit 28). Mr. Dow's copy of the finance agreement contains no notation of a charge for motor club membership, while the finance company copy shown $35 was charged to Dow for this membership. Respondent called as a witness each girl who prepared and sold the policies to the complaining witnesses in Finding 24 above. These witnesses denied that they ever deceived anyone, failed to explain to anyone the extent of their coverage, or refused to sell PIP insurance without including motor club or some other coverage. Thus this testimony is in direct conflict with the above findings. Several factors, other than their demeanor on the witness stand, led to the conclusion that the testimony of the complaining witnesses was more reliable. These factors include: Respondent stipulated that during a period of approximately two months the policy of the office, communicated to the girls writing insurance by Respondent, was that minimum coverage (PIP) would not be sold alone without including a motor club membership. (Tr. p. 313, 314) Mrs. Finn testified (Tr. p. 580, 581, 600) that after getting Mr. Quigley's concurrence that they could refuse to sell PIP alone, they operated in this manner for several months and she communicated this policy to the employees. After the second call to Quigley disclosed they could lot refuse to sell PIP only, Mrs. Finn testified, "So we immediately changed and started writing PIP only if we really had to." (Tr. p. 582, 600). Questions for minimum coverage given to customers all appear to have included motor club membership. A standard "rap" was developed which was given to customers (Tr. p. 550) in which the customer was advised. "'You have this, this, and this and this is how much it cost.' That was standard." A very high and separate bonus was given the employees on the motor club memberships they sold. Different classes (and charges) for motor club memberships were used by the employees depending on how much money they believed they saved the customer and the differences were seldom, if ever, explained. (Tr. p. 474) Respondent testified that "when Mr. Quigley said. . . that we could decline PIP, we did not decline." (Tr. p. 613) . This conflicts with more credible testimony. Kim Gary, who has been employed by Respondent since 1976, testified the procedure at University regarding the sale of motor club membership was essentially the same the date of the hearing as it had been during the four-plus years she was employed at University.
Findings Of Fact Respondent Albert Wade Anderson holds a business degree from Washington University and a theology degree from Princeton University. After six years, he left the ministry to sell insurance. In 1965, he was licensed to sell life insurance in Minnesota, and continued selling life insurance after he moved to Fort Myers, Florida, in 1967. Respondent is licensed in Florida as an ordinary life, including disability, insurance agent and as a general lines agent. Petitioner's Exhibit No. 1. In May of 1980, Mr. Anderson, newly licensed by petitioner to sell property and casualty insurance, took a job with Atlas Insurance Agency's Fort Myers office. Atlas Insurance Agency paid respondent a weekly salary of $200 plus "$6.75 per program or deal," (T. 62), i.e., per customer. Almost invariably, respondent sold a motor club membership to any customer who bought a personal injury protection policy; Mr. Anderson could not recall with certainty a single exception. (T. 66.) "A motor club is an organization which provides certain designated services to motorists, including such things as guaranteed arrest bond certificates, towing and labor for disabled automobiles, map drawing services, often accidental death benefits, and similar related services . . . [for] motorists." Deposition of Andrew M. Beverly (Deposition), p. 6. Among motor club membership benefits are many services which are not included in "standard coverage." Deposition, p. 7. Motor club membership is "an important coverage . . . [An] insured should be made aware of this coverage." Deposition, p. 9. An insurance agent "should explain the different [motor club] coverages and options to a potential insured." Deposition, p. 19. COUNT ONE Jeanne Whyte, assistant head nurse at Lee Memorial Hospital on the 11- to-7 shift, came into the Fort Myers office of Atlas Insurance Agency on June 10, 1980. Ms. Whyte graduated from high school and has attended about a year's worth of college courses from time to time, in addition to her training as a nurse. When she went to the Atlas Insurance Agency, it was with the intent to purchase the least expensive automobile insurance available. She was already a member of the American Automobile Association. Respondent Anderson persuaded her, however, that she should also purchase liability insurance to protect her home and other assets. In explaining her potential benefits, Mr. Anderson said "something about towing, but [Ms. Whyte] didn't connect it with . . . a club or anything." (T. 27.) Before she left the office, she wrote a check for $275, and signed documents, including a membership application for American Touring Association, Inc., Respondent's Exhibit No. 1. Of the $275, $186 was used to purchase bodily injury liability, property damage liability, and personal injury protection, in the form of a combination automobile policy from Kenilworth Insurance Company, No. C-1-826686, Petitioner's Exhibit No. 3; $75 was used to purchase a membership in American Touring Association, Petitioner's Exhibit No. 4; and $14 was not accounted for by the evidence. When Ms. Whyte discovered that $75 had been used to purchase a membership in American Touring Association, she tried to obtain a refund from Atlas Insurance Agency, originally without success; but she eventually obtained a $75 refund, after contacting the Insurance Commissioner's office. This experience notwithstanding, Ms. Whyte purchased automobile insurance a year later from respondent, who by that time was employed with another insurance agency, "because [she didn't really think it was his idea to put [her] in the American Touring Club." (T. 29.) COUNT THREE When James Hanney, a high school graduate, entered Atlas Insurance Agency's office in Fort Myers, on or about August 11, 1980, he was under the impression that his parents' membership in the American Automobile Association inured to his benefit. Whether this impression was accurate was not clear from the evidence. In any case, Mr. Hanney told the woman he found in the Atlas Insurance Agency office that he wanted minimal insurance coverage. She sold him a $10,000 personal injury protection policy with an $8,000 deductible, issued by Fortune Insurance Company, No. AP 1-10-02821 with a premium of less than $50, and a membership in the Nation Motor Club for $35. Respondent and Mr. Hanney each signed the insurance policy. Petitioner's Exhibit No. 7. Among other documents, Mr. Hanney signed an application for membership in the Nation Motor Club, Inc., Respondent's Exhibit No. 2. COUNT FIVE On or about May 17, 1980, James Allen Foster, a high school graduate, went to the Fort Myers office of the Atlas Insurance Agency to buy whatever insurance was necessary to register the car he and Barbara Gonzalez (now Foster) had recently purchased. He did not ask for a motor club membership and would not have purchased such a membership if he had known it was optional. He did, however, sign an application for membership in the American Touring Association, Inc., Respondent's Exhibit No. 3, among other documents. After telling Mr. Foster and Ms. Gonzalez about potential benefits, including "towing and lost key coverage, Mr. Anderson sold them a $10,000 personal injury protection policy with an $8,000 deductible written on the American Specialty Insurance Company, No. PA 02 03 59, Petitioner's Exhibit No. 9, with a premium of $44, in addition to the membership in the American Touring Association. Howard Vogel and Kevin Cox were the principals of Atlas Insurance Agency, a Florida corporation owned by Cox, Vogel, Inc., during the time respondent Anderson worked for the agency. They instructed respondent to attempt to sell motor club memberships along with every automobile insurance policy he might sell, and told him how to go about it. The "technique was to package the benefits and quote one price," (T. 56; Testimony of Respondent), the aggregate of the motor club membership fee and the policy premium. Respondent was told by his employers "to not emphasize" the motor club memberships. Jeanne Whyte, James Hanney, and James Allen Foster each signed a form application for motor club membership, but only the application Mr. Hanney signed listed the membership fee or otherwise indicated that a separate fee or premium was being charged for the motor club membership. Respondent deliberately withheld this fact from Ms. Whyte and Mr. Foster when making his oral presentation and no document furnished to Ms. Whyte or to Mr. Foster disclosed the fact. Neither did respondent offer either of these customers a choice between memberships in different motor clubs. An insurance "agent has an absolute duty to the insured to explain to him what he is selling him and what it does for him," Deposition, p. 14, although the name of the policy is not nearly as important as the explanation of the coverage. Simply omitting the formal policy name would not fall below "the minimum standards of the business, the industry." Deposition, p. 16. "[T]he important thing is to explain to the insured he's buying something, and that what he is paying for is this." Id. Before making a sale, the insurance "agent owes it to the insured to explain each coverage and tell him he's paying for it and what the benefits of the coverage are." Deposition, p. 22. Both petitioner's recommended order to hearing officer and respondent's proposed order have been given careful consideration. Findings proposed by the parties which are not included in the foregoing findings of fact have been rejected as inconsistent with the evidence or omitted as irrelevant.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's licensure under Chapter 626, Florida Statutes (1979), for a period of sixty (60) days. DONE AND ENTERED this 16th day of December, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1981. COPIES FURNISHED: David A. Yon, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire Suite 112 1030 East Lafayette Street Tallahassee, Florida 32301 The Honorable Bill Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
Findings Of Fact Charles Edward James in the relevant period of time considered by these proceedings was an insurance agent licensed by the State of Florida in the categories of ordinary life, general lines, and disability. In that same time period Respondent was the president, director, and registered agent for Friendly Auto Insurance of Panama City, Inc., located at 704 West Eleventh Street, Panama City, Florida. He was also the president, director, and registered agent of All Auto Insurance of Quincy, which operates from 101 East Jefferson, Quincy, Florida. At various times in the critical period, Respondent had five other employees in Panama City in the Friendly Auto Insurance Agency. Among those employees was Alton McCollum, Jr., a licensed general lines agent in the State of Florida. His tenure with the Panama City office was from approximately February or March, 1982, until April, 1983. Anita Prevost worked in the Panama City operation commencing August, 1981, and was employed at the time of hearing as the office manager. Michelle Tolden started working in the Panama City office in February, 1982, as a clerk. At the time of the hearing she was excused from her employment on maternity leave. Tina Clark worked as a clerk in the Panama City office, but resigned prior to the hearing date. Carmen Browning was an employee in the business whose length of employment is unknown. McCollum, as a licensed general lines agent, had been hired by Respondent to operate the Panama City office and allow Respondent to do business in Quincy. At the time James employed McCollum, he gave no specific instructions as to how McCollum would supervise the Panama City office. James basically told McCollum that he wanted McCollum there so that McCollum's agent's license could be utilized to allow the Panama City office to remain open. McCollum spent a couple of hours a day operating the office. His time was primarily devoted to review of applications received by office employees. When he was not available in the office, McCollum could be contacted by phone by other office personnel. When he arrived, he assumed that the employees who were not agents understood how to conduct the business in the sense of giving quotes for automobile insurance over the phone and filling out the necessary forms. In the beginning, he was not familiar with the sale of motor club benefits, having never worked with that type of offering. The motor club memberships that were being sold at the time that McCollum was serving as the agent for Friendly Auto called for commissions to Friendly in the amount of 70 to 80 percent of the premium. Eventually, McCollum determined that the motor club sales through the Panama City operation were questionable. He discovered that customers were not being told that they were getting a motor club membership in addition to their requests for basic automobile insurance. In effect, what he found was that the other employees in Respondent's Panama City office were quoting a single price to customers requesting basic automobile insurance which included the cost of the basic insurance premium and the price of membership in the motor club. As McCollum realized motor club is not part of basic automobile insurance coverage in Florida. McCollum then attempted to have other employees within the Respondent's office specify to customers the particulars of what they were receiving, i.e., that motor club memberships were separate from automobile coverage. He also instructed the other employees in selling motor club memberships to explain to the customers that they were purchasing a motor club membership and specifically indicate what the cost was of that plan. As a result, Friendly Auto sold fewer auto club memberships while under the supervision of McCollum. McCollum also discovered that the other employees in the Panama City office were inappropriately filling out the applications in the sense that the name, address, driving history, and other background information were filled out but that portion related to premium costs and the break out of those costs was not being completed at the time the customer was in the office. That information was being placed in the application at a later date. The normal procedure was for the customer to be provided with a copy of the application which did not contain the specific itemized costs related to premium payments. Once McCollum discovered the problem with the applications, he instructed the employees in the office to fill out the application forms completely to include specifying the premium costs in the application and providing the customer with a completed copy of the application to include a break out of these premium charges. Tina Clark in particular did not readily accept the suggested changes for improving the integrity of the operation. McCollum had suggested that James fire this employee. Instead, Respondent decreased the hours available for that employee to work in the office based upon his belief that she would leave voluntarily and the employee left several months later, indicating that she could not accept reduced hours of work. Anita Prevost was hired by Respondent and trained by Carmen Browning. Before McCollum's involvement with the Panama City office, Prevost, in taking applications for automobile insurance, would quote a cost which included motor club membership as well as the automobile premium costs, even if the customer simply requested insurance necessary to receive a license and tag for an automobile. At the time of filling out the automobile insurance form it would be signed, the motor club membership application form would be signed, and a rejection form related to coverages not requested in the automobile policy line would be signed. Prevost and other employees would not refer to the motor club membership by that name. Instead, at most benefits of the motor club membership would be explained, such as towing, rental reimbursement, accidental death benefits, and emergency road service. The idea of explaining the coverage and not referring to the motor club membership as such was that of the Respondent. When an individual discovered that they had purchased a motor club membership, Prevost and other employees per Respondent's instructions would provide a full refund of the membership costs to that customer. Prevost, and other employees, in dealing with PIP coverage routinely filled out a deductible in the amount of $8,000 after asking a customer if they had hospitalization and without regard for the customers' response. When confronted with a customer who was not interested in that amount of deductible, they would offer a lesser deductible or no deductible. This technique was in keeping with instructions given by Respondent. Later, in dealing with the PIP purchase, Prevost and other employees in the agency would ask if the customer had hospitalization. If they said yes, an $8,000 deductible PIP would be suggested; otherwise, it would be recommended that the customer purchase the PIP coverage that did not carry a deduction. This new policy was established by the Respondent in early 1982 but was not always adhered to as seen in subsequent facts. When Michelle Tolden took applications for persons who wanted basic automobile insurance, she explained the limits of liability in the coverage; coverage related to PIP and its limitations and the benefits related to motor club memberships to include road service, rental, towing reimbursement and any accidental death benefits. The words "motor club" were not mentioned and Tolden has not deviated from the practice from this decision not to mention motor clubs. She feels that the customer understands better what is involved without mentioning the term "motor club." This technique is contrary to the instructions given by McCollum. Tolden, prior to her maternity leave, dealt with the question of the sale of $8,000 deductible PIP in the same fashion as described in the facts related to Prevost. Respondent, in his training in Port Myers, Florida, prior to coming to Panama City, had utilized the technique of packaging minimum automobile insurance coverage necessary with a ¬or club membership when a customer sought "tag" insurance. He and his employees pursued this technique at the time he operated as the general lines agent with Friendly Auto from June 1981 to March 1982. This packaging did not tell a customer specifically that the customer was purchasing an unnecessary and unrequested motor club membership. The resulting confusion and deception related to the aforementioned packaging is seen in the following factual account related to select customers mentioned in the complaint. According to James, in selling PIP $8,000 deductible the realized return was $3.00 with a cost of service of between $20 and $25. As a consequence, he decided to package automobile coverage and the motor club membership in view of the fact that the motor club paid 70 percent or better as commission for the agency in the sale of memberships. This enabled the agency to realize a profit in the combination of the sale of minimum automobile coverage and motor club memberships. The average return for commissions on automobile insurance policies generally is 15 percent. COUNT I LINDA C. SMITH In May, 1982, Linda C. Smith went to Respondent's Panama City office to purchase the necessary automobile insurance to obtain a tag. Smith desired to have PIP and liability coverage; however, in the face of a quoted cost of $79 for the insurance, she determined that she could only afford PIP. She paid $79 for what she assumed was PIP coverage upon a quote of that amount by an employee in Respondent's office. Only $29 related to automobile insurance coverage, the balance was for motor club membership. No mention was made to Smith on the subject of the purchase of a motor club membership and Smith would not have purchased it in view of the fact that she had a friend who was in the wrecker business. That friend was Robert Griffiths. Smith did sign a slip pertaining to a motor club membership which may be found as Petitioner's Exhibit 8. She does not remember seeing the membership fee of $50 reflected on that form. Subsequently, Smith discovered that she had purchased a motor club membership. Had she realized that the $50 had been spent on motor club membership, she would have utilized that payment to purchase liability insurance in lieu of the motor club membership. After complaining to the Insurance Commissioner's office in Panama City, she was contacted by Friendly Insurance and received a $50 refund related to her purchase of a motor club membership. At the time of the transaction, Smith did not read the entire explanation on documents provided to her. Smith's determination to purchase the no fault deductible in the amount of $8,000 was on the basis of the signing of a form provided by the agency which is known as a rejection of liability coverages. The particular form in question may be found as Respondent's Exhibit 11, admitted into evidence. Smith does not recall checking the block which shows the $8,000 deductible PIP. Nonetheless, one of he items on that form related to the $8,000 deductible and it indicates the significance of the deductible, in that it reduces the amount of PIP benefits paid to the purchaser or resident relatives. The form also indicates that this kind of deductible is not recommended for those persons who do not have other coverages which would respond adequately to payments for injuries received in automobile accidents. In addition to this information, the employee who assisted the customer had asked about hospitalization for the benefit of Linda Smith. Smith did have health insurance or medical insurance at the time of purchasing the automobile insurance policy. In addition that form as signed by Smith, had a portion which stated "I understand the accidental death benefit through the life insurance company is a separate item, that pays in addition to my auto insurance policy. I understand the additional charge to this coverage is included in with my downpayment." Smith did not equate this latter item with motor club membership. COUNT II JACKIE MERCER Jackie Mercer went to the Panama City office of Respondent in order to purchase necessary insurance to obtain a driver's license. This explanation was made to the employee who assisted the customer at Friendly Auto. The amount of quotation for the premium was $581, which was paid by Mercer. An automobile insurance application form was signed by Mercer and a copy of that may be found as Petitioner's Exhibit No. 13 admitted into evidence. The coverage was for one year, commencing April 17, 1982. No mention was made to Mercer of the purchase of a motor club membership and Mercer would not have knowingly accepted that unsolicited membership. Nonetheless, as part of the package of coverage, $25 was charged for each of two vehicles that were being insured for a total of $50 for membership in a motor club. The real automobile insurance policy amounts for the two cars for the one year period was $531. At the time that the purchase was made, Mercer did not understand that he had paid a separate amount for motor club, notwithstanding signing two forms which are constituted as Petitioner's composite Exhibit No. 15 indicating application for motor club membership. Mercer has no recollection of signing the forms related to motor club. Mercer spent 10 to 15 minutes in the office in applying for the insurance coverage and did not read the various documents presented to him in applying for the insurance. As related in Respondent's Exhibit No. 6, Mercer signed that aspect of the rejection of liability coverages pertaining to the fact that accidental death benefits were a separate item from the overall automobile insurance coverage for which there was an additional charge. This related to the motor club membership benefits; however, Mercer was unaware of this. The automobile insurance application, Petitioner's Exhibit No. 13, does not break down the various charges related to premium payments for insurance for the two automobiles. On the other hand, the application which was presented to the insurance company and is found as part of Petitioner's Exhibit No. 14, dated April 16, 1982, carries a quotation for the total premium payments for both cars as being $431. Eventually, Mercer was notified of the cancellation of his coverage with Protective Casualty related to the two automobiles for reason of nonpayment of additional premium. It was at that time that he learned from the Florida Department of Insurance that the overall charge of $581 made by Respondent's Panama City operation included $50 for motor club memberships which were not desired by Mercer. COUNT III RENATA DOTSON On October 26, 1981, Renata Dotson went to the Panama City office of Respondent and purchased automobile insurance by dealing directly with the Respondent. She told James that she wished full coverage and paid the $289 quoted price with the expectation of receiving six months' coverage for automobile insurance. She did not wish to purchase motor club membership which is not part of automobile insurance. The cost of auto coverage was $214. Petitioner's Exhibit No. 17, entered into evidence is a copy of the application form which was used in requesting insurance from Colonial Insurance Company This item was not filled out by Dotson. She did sign the document on the second page. Ms. Dotson did not obtain a copy of the original of the application form upon leaving the agency. Dotson also signed an application for membership in the Nation Motor Club. A copy of that application may be found as Petitioner's Exhibit No. 20, admitted into evidence. She did not fill out the other information set forth on the form. At the time of requesting automobile insurance on October 26, 1981, through James' agency, in addition to not requesting to join a motor club, she recalls no discussion of joining a motor club. She would not have desired membership in the Nation Motor Club because her parents were involved in another motor club that to her understanding would cover her car. Dotson did not understand that she had signed an application for a motor club membership. Likewise, Dotson does not recall the discussion of an $8,000 deductible PIP which eventually was written into the policy or any other discussion related to deductibles. Dotson did not carefully read all papers presented to her at the time she was in Respondent's office on October 26, 1981. Dotson later discovered that she had paid $75 for motor club membership and upon that discovery, Friendly refunded her $75. As reflected in Respondent's Exhibit No. 4, Dotson signed that aspect of the rejection of liability coverages dealing with accidental death benefits and the fact that this was a separate item promoting an additional charge for coverage. She did not equate this as being unrelated to automobile insurance requested by her and related to purchase of a motor club membership. Her understanding was that the questions related to naming a beneficiary for the accidental death benefit was part of the purchase of the automobile insurance. COUNT IV EMMETT FOWLER Emmett Fowler was interested in obtaining less expensive automobile insurance that he presently held and based upon a television advertisement, he purchased automobile insurance from Friendly Auto in Panama City. When he bought the insurance, he was of the opinion that he had paid for a full year when in fact he had paid for six months' coverage. When inquiring about this misunderstanding, it was revealed that he had purchased motor club membership. He had not understood that he had purchased that membership prior to this subsequent inquiry and would not have desired the membership in that he had been a member of another motor club for fifteen years. He was reimbursed $50 for the motor club membership when he informed Friendly that he was not interested in that benefit. The actual automobile insurance premium was $52 and he had paid $102 which had been quoted as the price of automobile insurance. The other $50 was for motor club membership. Fowler had signed the application for the automobile policy, a copy of which is found as Petitioner's Exhibit No. 26 and for the motor club membership, a copy of which is Petitioner's Exhibit No. 28. At the time of purchasing the policy, no discussion was entered into on the question of purchase of a motor club membership. The employee who assisted Fowler in the purchase of the automobile insurance indicated that in view of the fact that Fowler had retired from the military, that the $8,000 deductible on personal injury protection would make the policy cheaper. Having heard this explanation, Fowler chose an $8,000 deductible PIP. The total time involved in the purchase of the automobile insurance was 10-15 minutes. Fowler did not read the documents presented to him in this session very carefully. At the time of purchase, accidental death benefits were discussed; however, Fowler was unaware that this matter pertained to motor club membership and not the insurance policy. Fowler also signed the rejection of liability coverages form which is Respondent's Exhibit No. 7, admitted into evidence. In particular, his signature appears on that portion of the form related to the fact that accidental benefits are a separate item and that there is an additional charge for that coverage. The motor club application which is Petitioner's Exhibit No. 28, does not reflect the fact of the $50 fee related to that membership. A copy of that application produced by the Respondent from his records which is admitted as Respondent's Exhibit No. 8, shows a charge of $50. The conclusion of fact to be drawn from this discrepancy is to the effect that the $50 was placed on the application form subsequent to the time that Fowler made application and without his knowledge. COUNT V MAXIE REEDER On June 4, 1982, Maxie Reeder made an application with Friendly Auto, Panama City, for automobile insurance and paid the $200 which had been quoted as the price of the insurance. Of that $200, $175 actually pertained to the automobile insurance premium and the remaining $25 paid for membership in a motor club. Reeder purchased the insurance based upon a need to have sufficient insurance to obtain a tag for her automobile. Reeder was unaware that she had purchased a motor club membership until she received notification of her membership from the motor club. Reeder also experienced problems with trying to gain benefits of her automobile insurance coverage in that she had difficulty gaining assistance from the Respondent following an automobile accident that she had in late June. The automobile policy was not received by Reeder until August 1982. Eventually, Reeder cancelled the automobile insurance policy. She requested that Friendly Auto provide her a refund for the motor club and received a refund in the amount of $25. Petitioner's Exhibit No. 30 is a copy of the application for automobile insurance which was signed by Reeder on June 4, 1982. It does not reflect the exact cost of the various elements of the automobile insurance policy premium. Those premium amounts are broken out on Petitioner's Exhibit No. 31, which is a copy of the application as completed by someone in the Friendly Auto Insurance Agency and submitted to the insurance company after Reeder left the agency. It reflects the various charges and the total charge of $175. Through this scheme of completing the form later, Reeder was not aware that the full amount of the automobile insurance was $175, not the $200 quoted, nor did she recognize that the remaining $25 of the money that she paid was for motor club membership. Reeder would not have knowingly joined an automobile motor club because she was not financially able. The transaction for the purchase of the automobile insurance on June 4, 1983, took approximately 45 minutes and the customer did not read the documents involved carefully. Reeder was eventually paid $140 related to the automobile insurance premium which represented the amount of premium not yet used at the point of her cancellation. As reflected in Respondent's Exhibit No. 9, admitted into evidence, Reeder signed that portion of the rejection of liability coverages referred to as the accidental death benefit separate item and the fact of additional charge for that coverage. Notwithstanding that signature on the rejection of liability coverage, Reeder and all other customers in this complaint did not understand the separate nature of the automobile insurance coverage and the motor club membership. Moreover, nothing that was done by the employees at Friendly Auto had as its purpose explaining the meaning of the aforementioned statement signed by the customer and the fact that the automobile club membership was not necessary in order to obtain the so-called tag insurance. In the Reeder transaction and the others, even in the face of a separate application for motor club membership and automobile insurance and the purported identification of the separateness of automobile insurance and motor club membership found in the rejection of liability coverage form signed by the customer, the overall technique used in responding to the customer's request for automobile insurance was one of obscuring the distinction between automobile coverage and motor club membership. Actions by Respondent and his employees in dealing with Reeder and the other named customers camouflaged the fact that motor club membership was not necessary to meet the requirements of law for the purchase of a tag. By these actions, Respondent and employees at Friendly Auto were making a misrepresentation to the public related to necessary coverage for obtaining automobile tags and the cost of automobile insurance and motor club membership. COUNT VII ROBERT GRIFFITHS Based upon advertising, Robert Griffiths went to the Friendly Auto to purchase full automobile insurance coverage. This visit was on February 12, 1982. At that time, he paid Friendly Auto in Panama City $168 for what he was led to believe was automobile insurance coverage requested. The copy of the application made on February 12, 1982, may be found as part of composite Exhibit No. 72 by the Petitioner. It does not reflect the exact charges related to the automobile insurance. This is a copy which was obtained by the Griffiths when they purchased the insurance. In actuality, the cost of the insurance was less than $168 paid. Griffiths signed an item requesting an application for membership in Nation Motor Club which is part of Petitioner's composite Exhibit No. 40 admitted into evidence. Notwithstanding the fact that he signed this application form, he did not understand that he had purchased a motor club membership and would not have desired that in that he operated a wrecker and would not need the towing service provided by the motor club membership. At the time of purchase of automobile insurance in February, 1982, Mr. Griffiths and his wife thought that the motor club membership was part of the automobile insurance without charge, in that the copy of the application which was received did not indicate a membership fee. This is seen in a xerox copy of the membership application which is part of composite Exhibit No. 40 as contrasted with the agency's yellow copy of the membership application and part of the composite Exhibit No. 40. The latter item contains a $25 membership fee. It is concluded that the fee quote was placed on the application form submitted to the Nation Motor Club at a time subsequent to the Griffiths' departure from Friendly Auto on the date in February, 1982. Moreover, Petitioner's Exhibit No. 73 is a copy of the basic service contract for the motor club which was received by the Griffiths and the fee amount is whited out further leading the Griffiths to believe that there was no charge for that coverage. There was no discussion on February 12, 1982, between the employee of Friendly and Griffiths on the question of joining a motor club. In the February application process, when Robert Criffiths signed the motor club membership application form and the application for insurance he did not read those matters carefully. Griffiths also signed the rejection of liability coverage acknowledgement form, Respondent's Exhibit No. 10, admitted into evidence, related to separateness of the accidental death benefit and the additional charge for that coverage. Griffiths, in asking for full insurance coverage did not wish to have the $8,000 deductible PIP at the time of purchasing insurance in February. The automobile insurance protection which was requested on the application was shown to be worth $153 and the actual policy amount was finally determined by the insurer to be $150 including the policy fee. This is reflected in Petitioner's Exhibit No. 39, admitted into evidence which is a copy of the application for insurance policy and the statement of policy declarations. The period of coverage was for six months commencing February 13, 1982. In August, Griffiths returned to Friendly Auto Insurance to renew the automobile insurance policy. On this second visit, Griffiths' wife was with him and she concluded the transaction and Griffiths returned to work. When the application for renewal was applied for in August, 1982, and Mr. Griffiths left, he left after revealing to the employee at Friendly that his duties included that of operation of a wrecker. On this second visit in August, 1982, no discussion was entered on the question of continuing the $8,000 deductible PIP which had been purchased at the time that the automobile insurance was obtained from Friendly in February, 1982. Had Mrs. Griffiths known, she would not have applied for an $8,000 deductible PIP at the time of renewal, acting in her husband's absence. She did not feel that she could afford to pay the $8,000 deductible if the insurance was needed. In addition, the automobile insurance policy renewal was not promptly forwarded to the insured even though application was made on August 17, 1982. As a consequence, when Mrs. Griffiths had an accident on August 20, 1982, she was not covered by the policy. The problem with lack of coverage of the accident on August 20, 1982, and the deficit in the coverage related to PIP were rectified by Friendly and the motor club fee was returned. COUNT VIII BRENDA D. HENDERSHOT/BRUMFIELD On January 15, 1982, Brenda Hendershot, now Brumfield, looked the Friendly Auto Insurance Agency up in the phone book and through the telephone process received a quote for insurance and decided to purchase automobile insurance to obtain an automobile tag. The purchase price quoted of $153 included motor club membership, unknown to the customer. Petitioner's Exhibit No. 44, admitted into evidence, is a copy of the application for automobile insurance. It does not reflect a break down of the cost related to the policy, although there are spaces provided for those entries. This document was signed by Brumfield at the time of applying for the policy at the Respondent's office in Panama City. That exhibit is a copy of what was given to Brumfield when she left Respondent's office. Anita Prevost was the employee who took care of Brumfield on the date the automobile insurance was purchased. During this purchase no discussion was made of the motor club. Brumfield did sign the Nation Motor Club application form that is depicted as Respondent's Exhibit No. 2. In addition, she signed the rejection of liability coverage provided by Friendly, to include that portion of the form related to accidental death benefits, being a separate item carrying an additional charge. As with other cases spoken to in this Recommended Order, the accidental death benefit was part of the motor club membership and not part of the automobile insurance coverage requested by Brumfield. Brumfield recalls some discussion about $8,000 related to personal injury protection but did not understand from this conversation at the time of purchase that this $8,000 amount pertained to a deductible. She did not discover this fact until a subsequent time. On that same occasion, Brumfield discovered that she had purchased a motor club membership which she did not request. The copy of the application for insurance which the Respondent's agency in Panama City submitted to the insurance company as shown through Petitioner's Exhibit No. 45, admitted into evidence, reflects the various charges set forth in the premium and demonstrates that the real cost of the automobile insurance was $128 with the other $25 being related to motor club membership. The customer did not carefully consider documents by reviewing them at the time of her purchase. COUNT IX BENNY L. COON On December 31, 1981, Benny Coon went to Friendly Auto Insurance to purchase the necessary automobile insurance to satisfy legal requirements in the State of Florida. He chose this agency because it was the nearest to his residence. A quotation was made to him of $158 and he paid $158 for what he understood to be the necessary automobile insurance coverage. This quote, unknown to Coon, contained motor club charges. A copy of the application form, for automobile insurance which contains his signature, may be found as Petitioner's Exhibit No. 49, admitted into evidence. Coon's also signed an application for Nation Motor Club as shown in Petitioner's Exhibit No. 52, admitted into evidence which is the copy kept by Friendly insurance. As reflected on that exhibit, $25 was charged for motor club membership unrelated to the automobile insurance requested by Coon. Coon had not requested to join a motor club when be went to the agency, not being interested in that plan, and there was no discussion made about joining the motor club. Eventually, Coon received a copy of the declaration statement related to the automobile policy and it reflected the true charge of $133 as opposed to the $158 which Coon paid, believing that was related to the cost of automobile insurance not automobile insurance and motor club membership. Petitioner's Exhibit No. 50 is a copy of the application submitted to the insurance company and it also shows charges in an amount of $133. The break out of the charges for the automobile insurance was not reflected on the copy of the application provided to the customer on the date he made that application. See Petitioner's Exhibit No. 49. Coon had not carefully read the documents prepared at the time of requesting insurance coverage. Again this customer completed the rejection of liability coverages form which is found as Respondent's Exhibit No. 5 admitted into evidence. He signed that aspect of the form related to accidental death, i.e. death benefit being a separate item and the additional charge related. COUNT XI DAVID B. PERMENTER David Permenter went to the Friendly Auto Insurance office in Panama City on March 15, 1982, to purchase basic automobile insurance coverage required by the State of Florida. He was quoted a price with a premium of $346 and he paid that price. This price included motor club membership without his knowledge. At the time the application was made, he signed a form related to membership in Nation Motor Club and was provided the customer's copy. This is found as Petitioner's Exhibit No. 63, admitted into evidence. It does not reflect the amount of charge for this protection. He also executed an application form related to the automobile insurance, a copy of which is found as Petitioner's Exhibit No. 60. This item does not display the break out of the cost related to the automobile insurance which ultimately was determined to be $321 with the balance of the amount he paid being $25 utilized for membership in Nation Motor Club. The declarations document related to the automobile insurance policy was received by the customer subsequent to the purchase of the insurance. That document reflects the cost of automobile insurance to be $321 and it was received as evidence, Petitioner's Exhibit No. 61. At the time the automobile insurance was purchased, no request was made to join a motor club and no inquiry was made of the customer if he desired to join a motor club. The purchaser thought that he was buying automobile insurance and did not recognize that motor club membership was envisioned in the sale. He would have joined the motor club if it was part of the policy payment and not a separate charge but did not wish to pay additional money to join the motor club. Permenter did not discover that he had joined a motor club until a date subsequent to the time of the purchase of insurance. No specific discussion was entered into about the features of coverage being purchased, the principal emphasis of the sale being related to the total price. The customer was in the insurance agency for approximately 15 minutes and he did not complete the application forms other than to sign them. This customer did not read the documents carefully at the time of the purchase. The amount of money paid for the motor club membership was refunded. This customer completed a rejection of liability coverages to include a signature on that aspect of the sheet which indicated that accidental death benefit was a separate item for which a charge would be placed. This document is found as Respondent's Exhibit No. 1, admitted into evidence.
Findings Of Fact The Respondent, Mary Lou Finn, is licensed by Petitioner as a general lines insurance agent. During the period of May 5, 1979 until November 1, 1980, she was the agent of record at the Ocala, Florida, office of University Insurance. During that time she held a 220 license and was the only agent responsible for that office. From April 1979 until November 1, 1980 Mr. Robert Vittitoe was the manager and owner of the Ocala office. Through an arrangement, which Respondent described as a consulting contract, she supervised the operation of the office. She also had a consulting contract but no supervising duties with University Insurance offices in Lake City and Tallahassee. In the course of her supervision and consulting advice for the University Insurance offices Ms. Finn issued a blizzard of memoranda on the operation of those offices. One of the memoranda which was received at the Ocala office on August 27, 1979 gave instructions concerning the sale of automobile motor club memberships. It states in pertinent part: The new yellow I.D. cards are for the following reason--When you write PIP only and a club, do not tell the insured he has towing and road service. Simply quote him the total rate, get all required signatures and TYPE them the yellow ID. card. When PIP policy and club policy [come] in we WILL NOT MAIL. We will keep their policies in their file. This will save on cancelled clubs when insured sees everything, plus it will save loads of postage. Remember - DO NOT MENTION motor club, towing and road svc., etc. They do not have to take the club anymore. Simply say the coverage they want (PIP) is $44.00 or whatever get signatures, type them their card and say good-bye. (Get money) This memorandum was shortly followed by one dated September 2, 1979, which said in part: In Gainesville we are not mailing policies. Instead having insured pick up. We will try it & see. Last week I sent a memo to you to explain. Had some calls that you didn't understand memo & thought I meant keep policies in file NO! No one has enough room in file cases for that. It is to save on postage. If you want to save yourselves money give it a try Re: The motor club, don't overemphasize the towing and road svc. We have too many claims. Explain all the coverages and emphasize the bail bond, legal fees, trip routing etc. Subsequently by a memorandum dated September 26, 1979, Respondent sent further instructions regarding motor clubs. The memorandum stated: When you write a motor club with other coverages and finance, be sure to list premiums separately on finance contract and get all signatures incl. club app. Make sure that the ins. knows all coverages on club. We are having a lot of towing claims and company is complaining so go into detail on other coverages as well. The last memorandum concerning this issue sent from Respondent to the Ocala office was written in the early part of 1980. It says: Please use the small statements for insureds to sign in addition to motor club app. so they are well aware of what they are purchasing. Will protect you too. Make sure they understand all coverages, BI, PD, PIP, COLL, COMP, UM, motor club if written & explain all deductibles. VERY IMPORTANT. 3 weeks after they leave office they won't know what they have, so be explicit. Get all signatures required especially motor club apps. & the statement that insured understands they have motor club & its [sic] a separate charge. The foregoing memoranda were sent by Ms. Finn with the intent that the sales personnel at the Ocala office follow her instructions contained therein. I find that the memorandum received on August 27, 1979 constituted an instruction to misrepresent the full nature of the insurance purchase transaction between the Ocala office and its customers. Ms. Finn's instructions were that "when PIP policy and club policy [come] in we will not mail. We will keep their policies in their file. This will save on cancelled clubs when the insureds see everything, plus it will save loads of postage." The implication is clear that the insureds are not to know that they have purchased automobile club coverage so they will not cancel it. This finding is supported by the following instruction: "Remember - DO NOT MENTION motor club, towing and road svc., etc. They do not have to take the club anymore. Simply say the coverage they want (PIP) is $44.00...". The three later memoranda in varying degrees countermanded the instructions of the August 27 memo. As soon as September 2, 1979 Respondent instructed the Ocala office to explain all the coverages and emphasize the bail bond, legal fees and trip routing features of the motor club memberships. If the sales people followed this directive they would necessarily inform the applicants that they were purchasing motor club memberships. The taint of the August 27 memorandum which arises from the instruction not to mail out insurance policies was eliminated by the September 2, 1979 memorandum which suggests that rather than mailing policies, the office request the insureds to pick the policies up. I find by September 26, 1979 Respondent was no longer instructing the Ocala office to "slide" motor clubs. 2/ Her memorandum of that date required listing the motor club fee separately on the premium finance agreements signed by the applicants. That instruction is incompatible with sliding. By the time her memorandum of early 1980 was written, Ms. Finn was instructing the Ocala office to add additional statements to insure that the insured knew they were purchasing motor club memberships and it was a separate charge. At the final hearing Ms. Finn gave testimony in an attempt to resolve the contradiction between the August 27, 1979 memorandum and the subsequent three memoranda received into evidence. She stated she intended by the August 27, 1979 memorandum to have the sales personnel only de-emphasize the towing and road service portion of the motor club memberships being purchased. While her explanation coincides directly with the instructions in the September 2, 1979 memorandum, it does not adequately explain the clear language of the instructions received in Ocala on August 27, 1979. Ms. Finn's testimony on that point is not accepted as credible. This finding rests in part on the evasiveness and demeanor the witness showed in answering both direct and cross- examination questions during her testimony. Individual Transactions On June 4, 1979 Ms. Lillie Mae Young purchased an automobile insurance policy at University Insurance in Ocala. 3/ As part of the transaction she also purchased a membership in the Nation Motor Club. During the course of that transaction she executed three documents: an insurance application, a Nation Motor Club application, and a premium finance agreement. When Ms. Young went to the Ocala office of University Insurance she asked to purchase the minimum insurance required by law to have her automobile registered. Whoever sold her the insurance did not mention to Ms. Young that she was purchasing a motor club membership. Ms. Young did not carefully read the documents she executed when she purchased her insurance. She believed that the person who sold her the insurance was a man. If Ms. Young had known that she was paying $35 for a motor club membership, she would not have bought it. On June 2, 1979, Ms. Willie Mae McCray purchased personal injury protection and bodily injury insurance for $163 at the Ocala office of University Insurance. As part of that transaction she also purchased a membership in the Nation Motor Club for $35. In the course of the transaction she executed three documents: an insurance application, a Nation Motor Club application, and a premium finance agreement. Both the motor club application and the premium finance agreement indicated the fee for the motor club was $35, but the evidence is not clear whether these documents were completed when Ms. McCray executed them. When Ms. McCray went to the Ocala office she asked to purchase PIP insurance. She was told by the salesperson that she could not buy just PIP alone, but must also purchase "liability". Ms. McCray agreed to purchase both coverages because she needed to register her automobile. She was not aware on June 2, 1979 that she had purchased a motor club membership. She was not told by the salesperson, who was not Ms. Finn, that she was making such a purchase. If Ms. McCray had known that the motor club membership was a $35 charge over and above her insurance premium she would not have paid it. At the time Ms. McCray bought her insurance she signed the documents mentioned above without reading them because she was in a hurry to get her insurance. She has difficult reading but did not mention her difficulty to the salesperson. On June 15, 1979 Mr. Alton Starker purchased personal injury protection and bodily injury insurance for $183 at University Insurance in Ocala. As part of that transaction he also purchased a membership in the Nation Motor Club for $35. In the course of the transaction he executed three documents: an insurance application, a Nation Motor Club application, and a premium finance agreement. The Nation Motor Club application which he signed indicated the club membership fee was $35. There is no evidence on whether the application was filled in at the time he signed it. There are two duplicate parts of the premium finance agreement in evidence. One part, the assured's copy, has only the dollar amounts filled in and Mr. Starker's signature; the other part, the agent's copy, is completely filled in and shows a $35 charge for Nation Motor Club membership. These two copies are part of a manifold tear- apart form. The original was not in evidence; therefore, it is impossible to tell which part of the premium finance agreement was filled in at the time Mr. Starker executed the original. The copy which was given to him to retain for his records was the assured's copy which does not show an itemized charge for the motor club. Mr. Starker's memory of the transaction is not accepted as credible. His testimony at the final hearing was impeached by a prior inconsistent statement he made in a discovery deposition. He denied signing the insurance application, yet without his signature he could not have purchased insurance which he testified he bought. On May 5, 1980 Mr. James Clark purchased personal injury protection and bodily injury insurance for $274 from University Insurance in Ocala. As part of the transaction he also purchased a membership in the Associated Motor Club for $35. In the course of that transaction he executed two documents: an insurance application and a premium finance agreement. The finance agreement indicated the charge for the motor club was $35 but there is no evidence on whether the document was filled in at the time Mr. Clark signed it. When Mr. Clark, who was accompanied by his wife, went to the Ocala office he asked to purchase the insurance necessary to "cover the vehicle, that's required for the law, and that was it." The salesperson who handled Mr. Clark's purchase did not show him anything which Mr. Clark thought indicated he purchased a motor club membership. Ms. Finn was not the salesperson in his transaction. Mr. Clark did not know he had paid a motor club membership fee until the investigation of this case by Petitioner began. On December 14, 1979 Mr. Mark Alfarone purchased bodily injury, liability, property damage liability, comprehensive including collision, and uninsured motorist coverage for $579 at University Insurance in Ocala. As part of the transaction he also purchased a membership in the Nation Motor Club for $35. In the course of the transaction he executed three documents: an insurance application, a premium finance agreement and a Nation Motor Club application. Both the motor club application and the premium finance agreement indicated that the membership fee was $35 but there is no evidence whether the documents were filled in at the time Mr. Alfarone executed them. When Mr. Alfarone went to purchase his insurance he asked for full coverage because the new Corvette he was insuring was financed. He did not request a motor club membership. He already belonged to AAA. Sharyn Vittitoe, the wife of the office manager Robert Vittitoe, handled his purchase. Mr. Alfarone did not read all the documents Ms. Vittitoe handed him to sign. She did not fail to answer any of his questions about his coverage which she explained to him. He did not tell her that he was a member of AAA. At the time he purchased his insurance Mr. Alfarone was not aware that he was charged for a motor club. He does not recall anything about a motor club being discussed then. He also does not recall receiving any documentation in the mail which identified him as a member of the Nation Motor Club. Mr. Alfarone does not recall signing any document for the purchase of a motor club membership although in his cross-examination he admitted probably seeing the Nation Motor Club application before he signed it. On September 26, 1979 Mr. James Curry purchased personal injury protection and bodily injury insurance on two automobiles for $299 at University Insurance in Ocala. As part of that transaction he also purchased two memberships, one per car, in the Nation Motor Club for a total of $53. In the course of the transaction he executed four documents: two Nation Motor Club applications, an insurance application and a premium finance agreement. One motor club application indicated that the membership fee was $35. The other application showed a fee of $18 for a second car. The premium finance agreement indicated a charge of $53 for "NMC". There is no evidence on whether the documents were filled in at the time Mr. Curry signed them. The evidence does not show what type of coverage Mr. Curry requested when he went to the Ocala office. At the final hearing he testified as follows: (Mr. Sumner) Q All right. Did you have any particular insurance coverages in mind? (Mr. Curry) A Well, I just wanted some where I could get my tag and, you know, cover some liability. (Mr. Sumner) Q Did you explain that to the people at the University Insurance Agency? (Mr. Curry) A I don't know what I did. I don't know, really I don't. But I just told them I wanted some coverage, you know, to protect me on the road and, you know-- He did not remember the details of what happened during the transaction. He did not remember signing either his insurance application or his premium finance agreement. He did not read the documents he was asked to sign. At the end of the transaction he did not understand that he had purchased motor club membership. On June 18, 1979 Ms. Betty Jean Nobles purchased personal injury protection and bodily injury insurance for $163 at University Insurance in Ocala. As part of that transaction she also purchased a membership in the Nation Motor Club for $35. In the course of her transaction she executed three documents: a premium finance agreement, an insurance application, and a Nation Motor Club application. Both the premium finance agreement and the motor club application indicated that the motor club membership fee was $35 but there is no evidence on whether the documents were filled in when Ms. Nobles signed them. Ms. Nobles' testimony about the details of her insurance purchase has not given any weight here because at the final hearing she did not remember the transaction well. The following testimony is typical of her recollection: (Mr. Sumner) Q Did you have any particular insurance coverages in mind when you bought -- went down there to buy insurance? (Ms. Nobles) A Not really, just full coverage. I needed insurance for a tag. (Mr. Sumner) Q Did you ask for full coverage, or did you explain what you wanted to the people there? (Ms. Nobles) A Well, I think I asked -- I really don't remember. I think I asked for full coverage. I didn't ask for insurance just for a tag, no. (Mr. Sumner) Q Okay. Miss Nobles, it's also been established that at the time you bought your automobile insurance, that you were charged for an automobile club membership. Were you aware that you had paid for that particular item at the time that you bought your insurance? (Ms. Nobles) A Well, to tell the truth, I can't say yes, and I can't say no, because I don't remember asking for one, no. On July 6, 1979 Mr. Vernajor Parker purchased personal injury protection and bodily injury insurance for $293 from University Insurance in Ocala. As part of that transaction he also purchased a membership in the Nation Motor Club for $35. In the course of the transaction he executed three documents: an insurance application, a premium finance agreement and a Nation Motor Club application. Both the premium finance agreement and the motor club application indicated that the motor club membership fee was $35. There is no evidence on whether or not the motor club application and the premium finance agreement were completely filled in at the time Mr. Parker signed them. 4/ Mr. Parker went to the Ocala office with the intention of purchasing the minimum insurance he needed to register his car. He does not remember whether or not the man who sold him his insurance discussed towing and road service with him. Mr. Parker remembers reading what he considered the important parts of all the documents he signed. The insurance policies of Mr. Parker, Mr. Curry and Ms. Young were not delivered to them but were retained in their file at University Insurance in Ocala. The Nation Motor Club Service contracts of Ms. Young, Mr. Alfarone and Mr. Parker were similarly retained in their files. These documents are necessary to a full understanding of the insurance coverage and motor club benefits the insureds purchased. Because certain dates in these findings are crucial to the following legal conclusions the dates are summarized here: Chronology of Transactions and Memoranda June 2, 1979 Willie Mae McCray June 4, 1979 Lillie Mae Young June 15, 1979 Alton Louis Starker June 18, 1979 Betty Jean Nobles July 6, 1979 Vernajor K. Parker August 27, 1979 Memo received instructing no disclosure of motor clubs. September 2, 1979 Memo written instructing explain all coverages but do not overemphasize towing and road service. September 26, 1979 Memo written instructing make sure insureds know all coverages on motor clubs. September 26, 1979 James Alfred Curry, Jr. December 14, 1979 Mark Alfarone Early 1980 Memo written instructing use small statements that applicants understand they have purchased a motor club for a separate charge. May 5, 1980 James Franklin Clark CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 120.65, Florida Statutes (1981). By its Amended Administrative Complaint the Department seeks to suspend or revoke Respondent's license as a general lines insurance agent. Authorization for such action is found in both Sections 626.611 (compulsory revocation or suspension) and 626.621 (discretionary revocation or suspension), Florida Statutes. 5/ As alleged by the Administrative Complaint the pertinent portions of Section 626.611 are: The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent ... and it shall suspend or revoke the eligibility to hold a license or permit of any such persons if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist: * * * If the license or permit is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising. * * * (7) For demonstrated lack of fitness or trustworthiness to engage in the business of insurance. * * * (9) Fraudulent or dishonest practices in the conduct of business under the license or permit. * * * (13) Willful failure to comply with, or willful violation of, any proper order, rule, or regulation of the department or willful violation of any provision of this code. Section 626.621, Florida Statutes provides: The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent...and it may suspend or revoke the eligibility to hold a license or permit of any such persons if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611: * * * (2) 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 or permit. * * * (6) If in the conduct of business under the license or permit he has engaged in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part VII of this chapter, or has otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest. The relevant provisions of Part VII of Chapter 626 referenced above include Sections 626.9521 and 626.9541, Florida Statutes (1981). Section 626.9521 provides in part: No person shall engage in this state in any trade practice which is defined in this part as, or determined pursuant to s.626.9561 to be, an unfair method of competition or an unfair or deceptive act or practice involving the business of insurance. Any person who violates any provision of this part shall be subject to the penalties provided in s.627.381. Section 626.9541 explicates the alleged unfair competition charged in the Amended Administrative Complaint as follows: The following are defined as unfair methods of competition and unfair or deceptive acts or practices: * * * Filing with any supervisory or other public official, Making, publishing, disseminating, circulating, Delivering to any person, Placing before the public, Causing, directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false material statement. * * * Knowingly making false or fraudulent statements or representations on, or relative to, an application for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual. * * * Knowingly collecting as a premium or charge for insurance any sum in excess of or less than the premium or charge applicable to such insurance, in accordance with the applicable classifications and rates as filed with and approved by the department, and as specified in the policy; or, in cases when classifications, premiums, or rates are not required by this code to be so filed and approved, premiums and charges in excess of or less than those specified in the policy and as fixed by the insurer. This provision shall not be deemed to prohibit the charging and collection, by surplus lines agents licensed under part VI of this' chapter, of the amount of applicable state and federal taxes in addition to the premium required by the insurer. Compared with the foregoing legal labyrinth the factual allegations of the Amended Complaint are simple. Eight transactions are charged. The allegations as to each transaction are the same except for the dates and the customers. The following count is representative: COUNT VI That you, MARY LOU FINN, as the general lines agent of record for the University Insurance Agency, Ocala, Florida, or one of your agents or employees acting under your direction or supervision, on or about December 14, 1979, sold to Mark Alfarone automobile insurance coverage. That you, MARY LOU FINN, or one of your agents or employees acting under your direction or supervision, charged Mark Alfarone for membership in an automobile club in the price of his automobile insurance premium without his knowledge or consent. That Mark Alfarone neither requested nor desired to pay additional monies for membership in an automobile club and would not have knowingly purchased the same at additional cost. IT IS THEREFORE CHARGED that in the conduct of business under your license, you, MARY LOU FINN: [Legal Conclusions Follow] Standard Of Proof In license revocation cases such as this the Petitioner has the burden to prove the allegations of the Amended Administrative Complaint. Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st D.C.A. 1980). The standard by which the agency's proof is tested has not been clear in Florida. Fact finders such as judges, jurors and hearing officers are familiar with three standards of proof: preponderance of the evidence, clear and convincing, and beyond and to the exclusion of a reasonable doubt. Traditionally findings of fact once made by the fact finder have been reviewed by appellate bodies under the test of "competent substantial evidence." The fact finding tests are essentially weighing devices. Because appellate bodies do not reweigh evidence, 6/ they review a record only to determine if someplace in that record there appears evidence of sufficient reliability (competent substantial evidence) which should be allowed to support a factual determination. Town of Indialantic v. Nance, 400 So.2d 37, 40 (Fla. 5th D.C.A. 1981); Hughes v Office of the Comptroller, So.2d 6 FLW 2490 (Fla. 2nd D.C.A. November 18, 1981); 5 Am Jur.2d, Appeal and Error 839 at 282 (1962). Once reliable evidence can be gleaned from the record which supports a finding, the appellate body cannot upset that finding. 5 Am Jur.2d, Appeal and Error 882 (1962). Unfortunately the foregoing concepts have been confused in recent opinions concerning professional license revocation cases. Gans v. Department of Professional and Occupational Regulation, 2 FALR 239J (Fla. 3rd D.C.A. April 29, 1980) is an example. There the appellant argued in a license revocation case that a preponderance of the evidence test had been used by the Hearing Officer instead of the clear and convincing test, contrary to the holding of Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd D.C.A. 1975). In his opinion for the Court Judge Hendry asserted that the preponderance of the evidence is the correct test to be used in an administrative proceeding. Judge Nesbitt, specially concurring, argued that the proper test was competent substantial evidence. Judge Hubbart dissented. He correctly reasoned that competent substantial evidence was not a test to be employed by fact finders but was really a standard of review by appellate bodies. Because his argument cannot be better restated by the undersigned, it is quoted here: Finally, I find nothing in Florida's Administrative Procedure Act which dictates a contrary result. It is true that an administrative agency in reviewing the findings of fact of a hearing examiner, as contained in the recommended order, may not reject or modify such findings unless it first determines that the findings of fact were not based on "competent, substantial evidence" in the record; Section 120.57(1)(b)9, Fla. Stat. (1979); moreover, an appellate court in reviewing final administrative agency actions may not substitute its judgment for that of the agency as to the weight of evidence on the disputed findings of fact and is authorized to set aside such agency action only if it finds that such action depends on a finding of fact that is not supported by a "competent, substantial evidence" in the record. Section 120.68(10), Fla. Stat. (1979). These are, however, standards by which an administrative agency and an appellate court must review findings of fact previously made by an hearing examiner or other administrative finder of fact; they do not speak to the burden of proof which a hearing examiner, as here, must employ in making his findings of fact after a full evidentiary hearing. As such, these review standards have no relevance to the central issue of this case and in no sense conflict with the rule of the Walker decision. In this regard, I find the following principle of law entirely controlling: "There is a distinction between the standard by which an administrative tribunal measures the proof presented to it. . .and the standard by which a reviewing court measures the correctness of an administrative order under review... See DeGroot v. Sheffield, (Fla. 1957), 95 So.2d 912, 916. The functions of the two tribunals are dissimilar and the standards are not interchangeable." Florida Dep't of Health and Rehabilitative Servs., Div. of Health v. Career Service Comm'n of the State of Fla., Dep't of Admin., 289 So.2d 412, 415, n.2 (Fla. 4th DCA 1974), quoted with approval in Fitzpatrick v. City of Miami Beach, 328 So.2d 578, 579 (Fla. 3d DCA 1976). It should be noted that the Hearing Officer in the Gans case actually employed a competent substantial evidence test. Board of Chiropractic Examiners v. Gans, Case No. 78-101 (Florida Division of Administrative Hearings, Recommended Order October 2, 1978). The District Court of Appeal, Third District, became aware of that fact after issuing its original opinion which was subsequently withdrawn. The replacement opinion, with all three judges in agreement states: The administrative order under review is affirmed upon a holding that: (a) the standard of proof employed by the hearing examiner in reaching the findings of fact in this cause was not one of preponderance of the evidence, as both parties to this appeal have mistakenly assumed, and, accordingly, we have no occasion to determine whether the utilization of such a standard would in the abstract, constitute reversible error, as urged by appellant, it being abundantly clear that such an alleged error did not occur in this case. Gans v. Department of Professional and Occupational Regulation, 390 So.2d 107 (Fla. 3rd D.C.A. 1980). The opinions in Gans were followed by Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st D.C.A. 1981). The Court there held that the Hearing Officer (whose recommended order was adopted by the Department) erred in finding that Bowling had violated statutes regulating the conduct of insurance agents. In deciding the case the court properly applied the appropriate review standard, competent substantial evidence, and found that there was insufficient evidence in the record to support certain findings. Unfortunately the opinion contains language which can be interpreted to mean that the competent substantial evidence test should be used to determine the existence or nonexistence of facts during an administrative hearing. See for example, Smith v. School Board of Leon County, 405 So.2d 183, 186 (Fla. 1st D.C.A. 1981); Office of Treasurer, Insurance Commissioner v. Azis, Case No. 80- 1278 (Florida Division of Administrative Hearings Recommended Order, June 3, 1981); Department of Professional Regulation, Board of Real Estate v. Miller, 3 FALR 2317A, 2319A (Florida Division of Administrative Hearings Recommended Order, August 14, 1981). It frequently happens during a trial or a hearing that there is competent substantial evidence to support the existence of an alleged fact and there is also competent substantial evidence to support the non-existence of that fact. Because of its roots in the review process, competent substantial evidence provides no assistance to the fact finder in weighing evidence which may be equally competent and substantial yet contradictory. The task of the fact finder is to resolve the contradiction. This is where the traditional standards of proof give direction. The fact finder knows if the appropriate standard is preponderance of the evidence, then one scintilla of evidence more in favor of the existence of a fact than that evidence to the contrary will require him to find the fact exists. If the appropriate test is beyond and to the exclusion of the reasonable doubt he knows the evidence in favor of a fact must be so overwhelming as to exclude any reasonable contrary conclusion. For the foregoing reasons I conclude that competent substantial evidence as discussed in Bowling is not the appropriate standard of proof to be used in this proceeding. Since license revocation cases are penal in nature, 7/ clear and convincing evidence is the applicable criterion for determining whether or not Petitioner has established the facts alleged in its Amended Administrative Complaint. Walker v. Board of Optometry, 322 So.2d 612 (Fla. 3rd D.C.A. 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd D.C.A. 1966). Proof Of Allegations The Respondent had no direct contact with any of the alleged customers of University Insurance in Ocala. None of the insurance purchasers remembers Ms. Finn as the person who sold him his policy. Because they were not called as witnesses there is no evidence from the Ocala salespeople who actually had contact with the complaining witnesses that Ms. Finn told them to "slide" motor clubs. The only link between Ms. Finn and the transactions alleged in the Administrative Complaint to violate the Insurance Code is the instructions she gave the Ocala office in her memorandum received on August 27, 1979. It is therefore concluded that no nexus has been established here between Ms. Finn and all transactions which antedate August 27, 1979. See the chronology of transactions set out in Finding of Fact 30. For this reason, Counts I, II, III, VIII and IX should be dismissed. The fact that Ms. Finn was the agent in charge of the Ocala office is not by itself sufficient to find her guilty of the alleged violations set out in the Counts above. Mere negligence in supervision of the salespeople even if proven, is not sufficient to sustain discipline in a license revocation case of this kind. Bach v. State Board of Dentistry, supra at 36. Counts IV, VI and VII concern transactions subsequent to the August 27, 1979 memorandum. Mr. Curry purchased his insurance on September 26, 1979. That was the same day Respondent wrote her memo which purged her earlier instructions to slide motor clubs. The record is barren of evidence on when the September 26, 1979 memorandum was received or acted on in Ocala. If I assume arguendo that the Ocala office was operating under a continuing taint from the August 27, 1979 memorandum, it is still not permissible to conclude that Petitioner has proven a violation by clear and convincing evidence. Mr. Curry, when testifying three years after he bought his insurance, did not remember what coverage he asked for or many other significant details of his transaction. When asked on cross-examination whether he remembered what happened at his transaction on September, 1979 he stated "No, I can't remember." Count VII of the complaint therefore must be dismissed for a lack of proof. Counts VI and IV, alleged transactions which took place subsequent to September 26, 1979, when the improper instructions of the August 27, 1979 memorandum had been effectively countermanded. The link between Respondent and any misrepresentations which occurred in the sale of insurance to Mr. Alfarone and Mr. Clark had been severed. For this reason, Counts VI and IV should be dismissed. Summary The facts established here by clear and convincing evidence do not support a conclusion that Ms. Finn has violated any provisions of the Insurance Code as alleged in the Amended Administrative Complaint. This determination is not meant to condone in any way Respondent's instructions in her August 27, 1979 memorandum. Had she been charged with instructing her subordinates to violate the Insurance Code and therefore demonstrating a lack of fitness to be licensed as an insurance agent, this might have been a different case. Since no such facts were pled here, the Amended Administrative Complaint must be dismissed in its entirety. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Department of Insurance and Treasurer enter a final order dismissing the Amended Administrative Complaint against Mary Lou Finn. DONE and RECOMMENDED this 12th day of January, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 12th day of January, 1982.
The Issue Whether Petitioner, Ivy Powell, was subject to an unlawful employment practice by Respondent, The Auto Club Group, based on a disability, in violation of the Florida Civil Rights Act.
Findings Of Fact The Auto Club is affiliated with the American Automobile Association (“AAA”), a national not-for-profit organization that provides its members with benefits relating to travel, emergency roadside assistance, and insurance coverage. The Auto Club hired Petitioner in March 1995, at its branch office in Melbourne, Florida. The Auto Club first employed Petitioner as a Service Clerk. Petitioner’s job changed over the years. Her last position with the Auto Club was as a Member Representative I (“MR-1”). As a MR-1, Petitioner was responsible for providing customer support services for Auto Club members. These services included greeting current and prospective members in the office, accepting members’ travel and membership payments, promoting travel and membership products, generating leads, and updating members on travel and insurance specials. Petitioner also provided travel-related services including booking car rentals, reserving hotel rooms, and preparing auto travel packages (“triptiks”). As a MR-1, Petitioner was a full-time employee in the Melbourne office. The Melbourne office was open Monday through Friday from 8:30 a.m. to 5:30 p.m. As a full-time employee, Petitioner’s normal work schedule mirrored the Melbourne office operating hours. Petitioner was allowed a one-hour lunch break. While Petitioner was employed with the Auto Club, she began to experience several medical issues. Petitioner described her conditions to include ataxia (loss of muscle control), fatigue, headaches, memory loss, and small vessel disease. Petitioner asserts that her mental and physical impairments substantially limited her major life activities including concentrating, lifting, sitting, standing, and thinking. Pertinent to her job, Petitioner explained that working longer than five hours a day caused her to become tired and lose concentration. On February 24, 2014, Petitioner presented a doctor’s note to her supervisor in the Melbourne office, Linda Hurt. The note stated, “it is medically necessary for [Petitioner] to decrease her work hours, for five hours per day, due to her medical condition.” On March 31, 2014, Petitioner produced a second note from her doctor restating her need to limit her work hours. Petitioner requested a reduced work schedule under the Family and Medical Leave Act (“FMLA”). The Auto Club granted Petitioner’s request, and beginning in February 2014, the Auto Club reduced her work hours to five hours a day. The Auto Club initially scheduled Petitioner to work from 8:30 a.m. until 1:30 p.m. In May 2014, when Petitioner had difficulty arriving to work by 8:30 a.m., the Auto Club shifted Petitioner’s work schedule to 10:00 a.m. until 3:00 p.m. On October 20, 2014, the Auto Club advised Petitioner that she would exhaust her FMLA leave in early November 2014. Therefore, she would need to provide additional documentation should she desire to continue working a shortened work day beyond the expiration of her FMLA leave. The Auto Club presented Petitioner with an Interactive Process Questionnaire which she was to have a doctor complete. By the first week of November 2014, however, Petitioner had not returned the requested paperwork. Therefore, on November 11, 2014, the Auto Club informed Petitioner that her FMLA leave had expired, and she would be expected to return to a normal, full-time work schedule. On November 13, 2014, Petitioner produced the questionnaire which her doctor had completed. In the questionnaire, her doctor restated Petitioner’s need to continue to work a reduced work schedule, indefinitely, and that her restrictions were permanent. Petitioner’s doctor wrote that Petitioner “is temporarily totally disabled” and “only able to work a maximum of five hours per day to prevent an exacerbation of symptoms.” After the Auto Club received Petitioner’s paperwork, it allowed Petitioner to remain on a shortened work schedule while it evaluated her request to continue working five hours a day. As more fully detailed below, the Auto Club determined that it could not indefinitely accommodate Petitioner’s part-time work schedule. The Melbourne office’s operation needs required full-time MR-1 employees. (The Melbourne office did not employ any part-time positions.) Therefore, the Auto Club explored options to offer Petitioner to accommodate her request for a reduced work schedule. In particular, the Auto Club reviewed its workforce to determine whether any part-time positions were open within 50 miles of Respondent’s residence. On December 4, 2014, Petitioner met with Linda Hurt to discuss the status of her employment. Brenda Slupecki, the Auto Club’s Employee Relations Manager, participated in the meeting by phone. During this meeting, Ms. Slupecki explained to Petitioner that her MR-1 position was a full-time position. Therefore, the Auto Club needed an employee in her position to work full-time. Ms. Slupecki further informed Petitioner that the Auto Club’s Melbourne office could not accommodate her request to work a part-time schedule indefinitely. The Auto Club then placed Petitioner on a 90-day disability leave of absence. Ms. Slupecki suggested that Petitioner look for part-time positions within the Auto Club offices in Tampa and Heathrow, Florida. Petitioner’s last day of paid employment in the Auto Club’s Melbourne office was December 5, 2014. However, the Auto Club continued to provide Petitioner employee benefits (such as health insurance) until her official termination in May 2015. After the December 2014 meeting, following a suggestion from Ms. Slupecki, Petitioner applied for short-term disability benefits from the Auto Club’s insurance company, Hartford Life and Accident Insurance Company (“Hartford”). Petitioner’s claim was denied. On March 9, 2015, Ms. Slupecki sent Petitioner a letter advising her that her 90-day disability leave of absence had expired. Consequently, the Auto Club placed Petitioner in a 30-day layoff status. The Auto Club, once again, suggested Petitioner apply for other jobs within the company. Ms. Slupecki cautioned Petitioner that the Auto Club would terminate her employment at the end of the 30-day period if she was not able to obtain another position. Petitioner did not apply for any other jobs within the Auto Club. On March 12, 2015, Petitioner appealed the denial of her claim for short-term disability to Hartford. On March 26, 2015, Hartford informed Petitioner that her appeal was not timely, and her claim would remain closed. On March 30, 2015, Ms. Slupecki sent a letter to Petitioner advising her that the 30-day layoff period would restart following Petitioner’s unsuccessful appeal to Hartford. The Auto Club once again encouraged Petitioner to search for a part-time job within the Auto Club. Petitioner did not attempt to find another position within the company. Petitioner’s 30-day layoff period ended on April 30, 2015. The Auto Club officially terminated Petitioner’s employment on May 1, 2015. The specific accommodation Petitioner requested from the Auto Club was to be allowed to work a part-time schedule of five hours a day, five days a week, for an indefinite period of time. At the final hearing, Petitioner testified that the Auto Club could not offer her any other accommodation that would have allowed her to work full-time in her MR-1 position. At the final hearing, Petitioner expressed that she was a good performer for the Auto Club, and her customer surveys showed no drop in customer satisfaction during the time she worked shortened hours. She strove to complete all her tasks every day before she left work. She believed that she could perform all the functions of her MR-1 position except working eight hours a day. Petitioner also asserted that her requested accommodation would not impose an undue hardship on the Auto Club. Petitioner suggested that the Auto Club could hire a part- time employee to cover her MR-1 duties during the hours she is absent from the office. Petitioner commented that, with revenue at more than a billion dollars a year and tens of thousands of employees, the Auto Club would not be unreasonably burdened by hiring another employee to supplement her job at the Melbourne office. Petitioner explained that she did not accept a part- time position at another Auto Club office because the nearest potential vacancy (Lake Mary, Florida) was more than 50 miles from her home. She would have been required to drive at least an hour to and from this location. Adding the commute time to a part-time job would have defeated the purpose of her restricted, five-hour workday. In response to Petitioner’s claim, the Auto Club argues that creating a permanent, part-time position just so Petitioner can work five hours a day is not reasonable. Moreover, even if it was reasonable, accommodating this request would place an undue hardship on the Auto Club. Based on its goal of consistent and expedient customer service, the Auto Club asserts that working a full-time schedule is an essential function of the MR-1. Ms. Hurt became Field Manager of the Auto Club’s Melbourne office in January 2014. In her role, she oversaw the day-to-day operations of her office. She also supervised Petitioner. Ms. Hurt testified that the Melbourne office employed approximately 15 people. Three of these employees (including Petitioner) filled the position of MR-1. Ms. Hurt relayed that all employees of the Melbourne office worked full-time and were required to work during the office’s regular hours of 8:30 a.m. through 5:30 p.m. Ms. Hurt explained that, as a “front-facing” employee, the MR-1 is the Auto Club representative who welcomes customers into the business. Ms. Hurt expressed that the Melbourne office experiences a lot of “foot traffic.” It is a small office, but very busy. Ms. Hurt conveyed that the staffing needs of her office require full-time employees in each position to interact will all customers who enter the office during business hours. Ms. Hurt further asserted that the Melbourne office did not operate efficiently in Petitioner’s absence. Petitioner’s reduced work schedule caused the office to be short-staffed from 8:30 a.m. until 10 a.m. and from 3:00 p.m. until 5:30 p.m. The office was not able to complete all of the work that needed to be accomplished during business hours. Neither was it able to provide timely service to its customers. Ms. Hurt remarked that developing customer relationships is paramount to the Auto Club’s business. The Auto Club desires its offices to service customers as expeditiously as possible. The MR-1 position is designed to cultivate long-term relationships with customers by providing consistent and continuous service. Ms. Hurt recounted that in 2014, she was aware of several customers who became aggravated due to increased wait times and left the Melbourne office without meeting with any Auto Club representative. Ms. Hurt also testified that a direct consequence of having one of her three MR-1 employees working part-time was that her office did not meet its 2014 budget projections. In particular, the Motor Club, which was the specific section in which Petitioner worked, produced lower income. Ms. Hurt relayed that Petitioner’s shortened work schedule also negatively impacted the other two MR-1 employees. The remaining MR-1s were obligated to meet with all customers who arrived at the Melbourne office outside of Petitioner’s five-hour work schedule. In addition to their own workload, they were forced to divide up and complete Petitioner’s duties. For example, because Petitioner could not work past 3:00 p.m., any customer with whom she was working was transferred to another MR-1. This situation prevented the continuity of service that the Auto Club strove for as an organization. The other two MR-1s also experienced increased overtime and reduced lunch breaks due to Petitioner’s truncated work schedule. Ms. Hurt explained that the overtime the MR-1 employees worked in 2014 nearly tripled. The Melbourne office was budgeted $3,300 for overtime costs that year. However, the office’s actual overtime expense in 2014 equaled approximately $9,600. In addition, the other MR-1s were not able to attend certain training sessions or use all of their paid vacation leave in 2014. Ms. Hurt also relayed that, at one point, one MR-1 volunteered to return early from medical leave because the office could not provide adequate service for all its customers due to Petitioner’s limited availability. Ms. Slupecki testified that, based on the Auto Club’s business model, hiring a part-time employee to fill in during the work hours Petitioner missed would not be an efficient or practical option to best serve Auto Club customers. The MR-1 position requires specific experience, knowledge, and training. Ms. Slupecki did not believe that a part-time employee would be able to master the skills or obtain the required expertise required of a MR-1. Furthermore, a part-time MR-1 would not provide the expected level or continuity of customer service the Auto Club desires. Ms. Slupecki imparted that the Auto Club employs only full-time MR-1s in all of its branch offices. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence in the record does not establish that the Auto Club discriminated against Petitioner based on a disability. Accordingly, Petitioner failed to meet her burden of proving that the Auto Club discriminated against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Ivy Powell, did not prove that Respondent, the Auto Club, committed an unlawful employment practice against her and dismiss her Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 20th day of April, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 20th day of April, 2017.
The Issue Whether Petitioner, Hassan Habibi, was subject to an unlawful employment practice by Respondent, Auto Club Group, based on his race, religion, or national origin in violation of the Florida Civil Rights Act.
Findings Of Fact The Auto Club is affiliated with the American Automobile Association (“AAA”), a national not-for-profit organization that provides its members with benefits relating to travel, emergency roadside assistance, and insurance coverage. Petitioner initiated this matter alleging that the Auto Club discriminated against him based on his race, religion, or national origin. Petitioner was born in Pakistan. He is a Muslim. On April 21, 2015, the Auto Club hired Petitioner as a temporary employee through Randstad, a third-party employee staffing firm. The Auto Club placed Petitioner in the position of a Membership Service Representative at its membership services call center in Heathrow, Florida. Generally, a Membership Service Representative is responsible for handling, processing, and resolving incoming calls from Auto Club members. Petitioner’s last day of work for the Auto Club was May 14, 2015, three and a half weeks after he began his job. Petitioner spent his first two weeks with the Auto Club in a training class learning how to properly handle and respond to service calls from Auto Club members. Petitioner’s training class consisted of approximately 15 people. His instructor was Amy Thornhill. Petitioner reported to Jeanette Wieland, Manager of the Membership Service Customer Interaction Center. At first, Petitioner sat in the back of his training classroom. However, he soon requested to relocate after he became increasingly distracted by the clicking of a pen by another trainee. Ms. Thornhill facilitated Petitioner’s request and moved him to the front of the room. She also advised the class to be respectful of the other trainees. On May 13, 2015, Petitioner was scheduled to leave the training class and begin handling live calls on the services call center floor. However, Petitioner called in sick that day and did not report to work. While he was out, Petitioner composed an e-mail for Ms. Wieland. Petitioner wrote that he believed problems that he had experienced at a job he recently held at Aon Hewitt had followed him to the Auto Club. In an attachment to his e-mail, Petitioner listed several “bizarre things” and objectionable behavior he was experiencing at the Auto Club. Petitioner believed that on either April 21 or 22, 2015, someone from Aon Hewitt had appeared at the Auto Club office and was “brainwashing” people to harass and intimidate him (the same way he was harassed at Aon Hewitt). Petitioner advised that this person might have been seeking revenge against him. Petitioner proposed that he be allowed to review the Auto Club video surveillance footage of the parking lot on April 21 and 22, 2015, with the Lake Mary Police Department, the Seminole County Sheriff’s Office, and/or Auto Club security. Petitioner believed that the video would lead to the arrest and prosecution of the perpetrators who were brainwashing Auto Club employees and had damaged his car in the Auto Club parking lot. Finally, Petitioner complained about how he was treated by several trainees in his training class including Sherry Latour, “Edgardo,” and “Judith.” Petitioner returned to work the next day on May 14, 2015. He reported to the call center floor for his first day taking live customer service calls. Unfortunately, Petitioner found his work shift extremely disconcerting. After he began handling phone calls, a man named “Terrance” sat next to him. Petitioner recounted that Terrance began loudly conversing with a nearby friend in such a disruptive and distracting manner that Petitioner could not hear the customers speaking over the telephone. Petitioner became very concerned that his quality assurance scores would decrease. Petitioner recounted that Terrence never spoke directly to him. However, Petitioner was alarmed to hear Terrance mention the e-mail that he had sent to Ms. Wieland the previous day. Terrance ignored Petitioner’s pleas for quiet. At the final hearing, Petitioner proclaimed that Terrance was intentionally placed next to him to prevent him from doing his job. Petitioner accused Ms. Wieland of deliberately using Terrance in retaliation for the complaints he raised in his May 13, 2015, e-mail. Petitioner alleged that Ms. Wieland directed Terrance to be so disruptive that Petitioner would be too scared to return to work the next day. Petitioner met with Ms. Wieland on May 14, 2015, around 5:00 p.m. during his mid-shift break. During their meeting, Petitioner repeated that he strongly believed that someone from Aon Hewitt had been brainwashing Auto Club employees to harass and intimidate him. Petitioner also complained that this person had damaged his car in the Auto Club parking lot. Petitioner again requested that he be allowed to review the Auto Club surveillance video of the parking lot to try and identify the individual. Petitioner also complained that on several occasions while he was in the Auto Club cafeteria, Edgardo and Judith threw plastic knives at his feet. Petitioner emphasized that this behavior occurred so much that Edgardo and Judith must have been acting out on purpose. Petitioner stressed that someone from Aon Hewitt was putting them up to it. Ms. Wieland advised Petitioner to go the Lake Mary Police Department if he felt threatened. In the meantime, she would check with Auto Club security regarding the surveillance videos. Ms. Wieland also requested that he let her know immediately if anything else occurred while he was working at the Auto Club. The next day, May 15, 2015, Petitioner called Randstad and explained that he had encountered several problems at the Auto Club. Consequently, he did not believe it was worth continuing his employment there. Shortly thereafter, a Randstad representative called Ms. Wieland and relayed that Petitioner did not feel safe at the Auto Club. Therefore, he would not be returning to work. On May 21, 2015, Petitioner e-mailed Ms. Wieland again. Petitioner expressed that the people who committed the “egregious acts” against him needed to be punished. Petitioner beseeched Ms. Wieland to provide him Ms. Latour’s last name so that he could file civil charges against her. Petitioner further contended that a former Randstad employee named “Victoria” may have been involved in Ms. Latour’s objectionable actions. Petitioner also indicated that two other male employees threw plastic knives and forks at his feet in the cafeteria in addition to Edgardo and Judith. Petitioner wanted these people to be punished. Finally, Petitioner declared that when he used the restroom at the Auto Club, two male employees would come into the restroom and do exactly the same thing an employee at Aon Hewitt would do. At the final hearing, Petitioner summarized the alleged discriminatory incidents that he endured during his tenure with the Auto Club to include the following: On several occasions, Petitioner encountered Ms. Latour outside the men’s restroom. Petitioner believed that she intentionally positioned herself to block his exit. Petitioner surmised that Ms. Latour was attempting to have him commit unwanted physical contact with her. On several occasions, Ms. Latour, Edgardo, and Judith stared at Petitioner while he was in the parking lot and watched him enter the office building. Ms. Latour once asked Petitioner where Edgardo and Judith were sitting on the call center floor. Ms. Latour and Ms. Thornhill held a secretive conversation of which Petitioner believed he was the subject. Edgardo did not shut the bathroom stall while he was using the restroom (just like the people at Aon Hewitt). In the Auto Club cafeteria, Edgardo and Judith dropped plastic forks and knives in front of Petitioner as he walked by. Petitioner believed that they intentionally threw the utensils at his feet to intimidate and provoke him. Petitioner believed that someone from Aon Hewitt put them up to it. An extremely noisy fan was placed next to Petitioner on the call center floor which distracted him from his customer service calls. On several occasions, a sports utility vehicle parked too close to his car in the parking lot which made opening his car door difficult. (A similar incident occurred while Petitioner worked at Aon Hewitt.) Someone scratched the bumper of his car while he was parked in the parking lot, perhaps to provoke him. Finally, Petitioner asserted that the Auto Club engaged in a “massive and elaborate effort” to cover up and conceal the discriminatory acts of Ms. Latour. Petitioner claimed that Ms. Latour was trying to blackmail or provoke him so that the Auto Club would fire him. Petitioner was also frustrated that the Auto Club would not produce video surveillance from the restroom hallway which he asserted would support his claim. Although Petitioner objected to the conduct of several individuals who worked at the Auto Club, at the final hearing, he specifically identified Ms. Latour as the only person who discriminated against him. However, Petitioner acknowledged that he never specifically complained to anyone that he was being harassed based on his race, religion, or national origin during the time he worked at the Auto Club. Neither did Petitioner ever accuse Ms. Latour, Edgardo, or Judith of discriminating against him. Petitioner never informed anyone working for the Auto Club that he was born in Pakistan. On the other hand, Petitioner did recall a conversation with one co-worker (not Ms. Latour, or Edgardo, or Judith) during which he mentioned that he was Muslim. At the final hearing, Petitioner explained that he did not realize that he was being illegally harassed until after he left the Auto Club. Petitioner asserted that Ms. Latour’s objectionable behavior must have been based on his race because he was the only person in his training class who was of Asian and Pakistani origin or a Muslim. Petitioner explained that Ms. Latour did not harass anyone else in their training class. Amy Thornhill testified at the final hearing. Ms. Thornhill stated that she had no knowledge of Petitioner’s race, religion, or national origin during the time he worked for the Auto Club. Ms. Thornhill further claimed that she never heard anyone make any comments about Petitioner’s race, religion, or national origin. Ms. Thornhill recalled that Petitioner complained about a fellow trainee who was tapping a pen during his training class. She believed that she properly addressed the situation when she allowed Petitioner to move to the front of the classroom. She also cautioned the class to be mindful of their classmates. Ms. Thornhill was aware that Ms. Latour was also in Petitioner’s training class. Ms. Thornhill testified that she never observed Ms. Latour behave inappropriately towards Petitioner. Neither did she and Ms. Latour ever discuss Petitioner’s race, religion, or national origin. Ms. Thornhill did not remember Petitioner complaining to her about discrimination or harassment. Ms. Latour, who is still employed with the Auto Club, testified at the final hearing. Ms. Latour first met Petitioner in their 2015 training class. Ms. Latour denied ever making any improper or offensive actions or comments to Petitioner. Ms. Latour denied that Edgardo or Judith encouraged her to provoke him. Ms. Latour also asserted that she did not know Petitioner’s race, religion, or national origin while he worked at the Auto Club. Ms. Latour further declared that she never blocked Petitioner’s exit from the men’s restroom. She reported that the women’s restroom is directly across the hallway from the men’s restroom and surmised that perhaps that was the reason Petitioner encountered her in the hallway. Ms. Latour also relayed that Auto Club employees routinely congregate in the hallway near the training area and the elevators. Ms. Latour denied that she participated in a conversation with Ms. Thornhill about Petitioner. Ms. Latour also rejected Petitioner’s allegation that she purposefully watched him in the parking lot. Despite the fact that Petitioner did not return to work after May 14, 2015, the Auto Club continued to investigate his complaints. Jami Mieser, a Senior Employee Relations Specialist for the Auto Club, testified at the final hearing. Ms. Mieser looked into the concerns Petitioner raised in his e-mails to Ms. Wieland in May 2015. Ms. Mieser did not find any evidence substantiating Petitioner’s claims that Auto Club and Aon Hewitt employees were intentionally provoking or discriminating against him. Ms. Mieser did not notify Petitioner of the results of her investigation in 2015. Petitioner had left the Auto Club by the time she had completed her investigation. Ms. Mieser also testified regarding the video surveillance of the Auto Club parking lot. She explained that Auto Club security only maintained the video for approximately 90 days. Therefore, the videos are no longer available to help determine whether an individual purposefully damaged Petitioner’s car in April 2015. Ms. Wieland testified at the final hearing and acknowledged that she did ask a man named Terrance to sit next to Petitioner on his first day on the call center floor. Ms. Wieland explained that she routinely places an experienced Membership Service Representative next to a trainee to assist the new employee with any issues. However, she denied instructing Terrance to disrupt Petitioner from doing his job or scare him away from the Auto Club. Ms. Wieland also stated that Petitioner never complained about Terrence during their May 14, 2015, meeting. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Auto Club discriminated against Petitioner based on his race, religion, or national origin. Accordingly, Petitioner failed to meet his burden of proving that the Auto Club discriminated against him in violation of the Florida Civil Rights Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Auto Club Service Group, did not commit an unlawful employment practice against Petitioner, Hassan Habibi, and dismiss his Petition for Relief. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 31st day of May, 2017.
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 the time of the formal hearing and at all times pertinent to these proceedings, Respondent was licensed in the State of Florida by Petitioner as a life and health insurance agent and as a general lines insurance agent. At the time of the formal hearing and at all times pertinent to these proceedings, Respondent served as the general lines insurance agent of record for A-AAAce Insurance Underwriters (A-AAAce) of 2507 Sheridan Street, Hollywood, Florida. Nation Motor Club is an automobile club that provides towing, rental reimbursement, accidental death, and other benefits to its members. Respondent sold memberships in Nation Motor Club and earned a commission equal to 90% of the annual fee for each membership he sold. Nation Motor Club grants a member a thirty-day period following the filing of his application to cancel his membership and to receive a full refund of his membership fee. ANDERSON TRANSACTION On or about September 28, 1989, Edward A. Anderson went to the offices of A-AAAce to obtain insurance for his automobile. Mr. Anderson first met with Steve Harrison, an employee of A-AAAce who holds no licensure from Petitioner and for whose acts Respondent accepts responsibility. Mr. Anderson recalled that he wanted personal injury protection (PIP), property damage liability, and comprehensive and collision insurance for his automobile, but he could not specifically recall what types of coverage he requested from Mr. Harrison and he could not recall the details of what was explained to him by Mr. Harrison. Mr. Anderson recalled being told by Mr. Harrison the cost of his insurance coverage, but he could not recall what Mr. Harrison told him the amount would be. Following his discussion with Mr. Harrison, Mr. Anderson was presented certain documents for his execution. Respondent, who had been sitting at the adjacent desk during the conversation between Mr. Anderson and Mr. Harrison, supervised the execution of these documents by Mr. Anderson. Included among those documents executed by Mr. Anderson was a membership application for the Nation Motor Club. On this application form, Mr. Anderson designated the beneficiary in the event accidental death benefits became payable as a result of his membership. This application reflects that the annual fee for membership was $200.00. Neither Mr. Harrison or Respondent prevented or attempted to prevent Mr. Anderson from reading any of the forms presented to him for his execution. Mr. Anderson did not read the forms before he signed them. Instead, he relied on his discussions with Mr. Harrison and Respondent and signed what was put before him. Mr. Anderson had not requested membership in the Nation Motor Club and he was not aware that he was purchasing a membership in the Nation Motor Club at the time he agreed to do so. He believed that the premiums he was being charged and the papers he was signing related to the insurance coverage he had requested, and he did not understand that he was paying $200.00 for membership in the Nation Motor Club. On November 8, 1989, Florida Insurance Commissioner Tom Gallagher accompanied Lottie Brown, one of Petitioner's investigators, in paying a surprise inspection visit to the offices of A-AAAce. That surprise visit was prompted by a complaint unrelated to this proceeding. By happenstance, Mr. Anderson was in the offices of A-AAAce during that surprise visit. On November 8, 1989, Mr. Anderson became aware for the first time that he had purchased a membership in the Nation Motor Club. On November 11, 1989, Respondent refunded to Mr. Anderson the $200.00 membership fee he had paid and he caused Mr. Anderson's membership in the Nation Motor Club to be cancelled. Mr. Anderson would not have purchased the membership in Nation Motor Club had he understood that he was doing so. BROWN TRANSACTION On February 17, 1990, Rebecca Brown went to the offices of A-AAAce to obtain insurance for her automobile. Ms. Brown talked with Respondent and asked for minimum personal injury protection (PIP) and liability coverage. Respondent discussed with Ms. Brown the insurance coverage she wanted and quoted Ms. Brown the amount of $355.00 as being the price for the "full package" of coverage she would be receiving. Respondent told Ms. Brown the coverage he was proposing included benefits for towing, rental reimbursement, and accidental death. Ms. Brown did not understand that the quoted price included membership in the Nation Motor Club or that the annual fee for that membership was $100.00. The premium for the insurance coverage alone was $255.00. Ms. Brown signed an application for membership in the Nation Motor Club which reflects the sum of $100.00 as being the cost of membership. On this application, she inserted the name of the beneficiary who was to receive any accidental death benefits that may become payable as a result of her membership. Ms. Brown also signed a premium finance agreement which reflected the cost of the insurance she was purchasing. Respondent did not try to prevent Ms. Brown from reading the documents she was asked to sign. Ms. Brown did not read the documents because she was in a hurry to complete the transaction. Instead, she relied on Respondent's directions as to what and where to sign. Ms. Brown first became aware that she had purchased a membership in the Nation Motor Club when she was so advised by an investigator for Petitioner on March 8, 1990. Ms. Brown thereafter contacted Respondent about this membership and Respondent promptly applied the $100.00 membership fee toward payment of the other insurance she had purchased and withdrew her application for membership in the Nation Motor Club. Ms. Brown would not have purchased the membership in Nation Motor Club had she had a clear understanding that she was doing so. CANGIANELLA TRANSACTION On February 17, 1990, John Cangianella went to the offices of A-AAAce to obtain automobile insurance for his automobile. Mr. Cangianella talked with Respondent and asked for minimum personal injury protection (PIP) and liability coverage. Respondent discussed with Mr. Cangianella various options as to coverage, including membership in Nation Motor Club. Mr. Cangianella could not specifically recall the types of coverage that had been explained to him or the costs thereof. Respondent quoted Mr. Cangianella the amount of $355.00 as being the price for the coverage. Mr. Cangianella did not understand that the quoted price included membership in the Nation Motor Club or that the annual fee for that membership was $100.00. The premium Mr. Cangianella would have paid for his insurance coverage alone was $255.00. Mr. Cangianella signed an application for membership in the Nation Motor Club which reflects the cost of membership. Mr. Cangianella also signed a premium finance agreement which reflected the cost of the insurance he was purchasing. On the application, he inserted the name of the beneficiary who was to receive any accidental death benefits that may become payable as a result of his membership. Respondent did not try to prevent Mr. Cangianella from reading the documents he was asked to sign. Mr. Cangianella had been out late the night before and he did not read the documents because he was in a hurry to complete the transaction. Instead, he relied on Respondent's directions as to where to sign. Mr. Cangianella first became aware that he had purchased a membership in the Nation Motor Club when he was so advised by an investigator for Petitioner in early March 1990. Mr. Cangianella thereafter contacted Respondent about this membership. Respondent refunded the $100.00 membership fee on March 9, 1990, and withdrew Mr. Cangianella's application for membership in the Nation Motor Club prior to its submission. Mr. Cangianella would not have purchased the membership in Nation Motor Club had he had a clear understanding that he was doing so. Mr. Anderson, Ms. Brown, and Mr. Cangianella continue to do business with Respondent's agency. Respondent's licensure has not been previously disciplined by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the Administrative Complaint filed against Respondent. DONE AND ORDERED this 1st day of April, 1991, in Tallahassee, Leon County, Florida. 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 1st day of April, 1991. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-3, 5, 10, 13-15, 17, 19, 21- 22, and 25-27 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are rejected as being legal conclusions. The proposed findings of fact in paragraphs 6-9 are rejected as being unsubstantiated by the evidence. These dealings were between Mr. Anderson and Mr. Harrison. While it has been concluded that Respondent was responsible for Mr. Harrison's acts, the proposed findings, as written, are unsubstantiated. The proposed findings of fact in paragraph 11 are rejected as being unsubstantiated by the evidence. The record does not clearly reflect the amount of the premium. The proposed findings of fact in paragraphs 12, 18, and 20 are rejected as being, in part, unsubstantiated by the evidence and, in part as being contrary to the findings made and to the conclusions reached. The proposed findings of fact in paragraphs 16 and 24 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 23 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 28 are adopted in part by the Recommended Order, are rejected in part as being recitation of testimony, and are rejected in part as being unsubstantiated by the evidence. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-7, 9-14, 16, and 18 of Part I are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 8 of Part I are rejected as being unsubstantiated by the evidence. Respondent's Exhibit 3 is not clear as to the dates of the insurance being financed. The proposed findings of fact in paragraph 15 of Part I are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 of Part I are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraphs 1-8, 10-20, and 22 of Part II are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 21 of Part II are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 9 of Part II are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 1-17, and 19 of Part III are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence. COPIES FURNISHED: Michael W. Moskowitz, Esquire 1500 N.W. 49th Street, #401 Fort Lauderdale, Florida 33309 Gordon T. Nicol, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether petitioner qualifies for a II-C Club alcoholic beverage license, which is issued to Nonprofit organizations or clubs devoted to promoting community, municipal, or county development or any phase of community, municipal or county development.
Findings Of Fact Code I is a nonprofit Florida corporation located at 3420-31 West Broward Boulevard, Ft. Lauderdale, Florida. In February, 1982, it applied for a II-C or Club alcoholic beverage license pursuant to Section 561.20(7)(a)3, Florida Statutes (1981) and Rule 7A-3.19, Florida Administrative Code. On August 3, 1982, DABT denied its application, asserting that it was not qualified for licensing under tie statute and rule. Code I was incorporated as a Florida nonprofit corporation in 1962. Ms. Bessie Walton and her former husband formed the corporation to raise funds to build a home for the elderly. With funds subsequently generated by the corporation, Tropical Home for Senior Citizens was constructed and continues to be operated in Ft. Lauderdale, Florida. In 1974, the corporation became inactive. According to several members of Code I, the goals and purposes of the Club are to support and make contributions to benevolent causes. This testimony, however, is based upon representations made to them by others concerning the goals and purposes of the Club. (Testimony of Troutman, Reddick) In the past, Code I has donated funds to numerous organizations or allowed them to use its facilities--without charge. These organizations, included Broward County Youth Football, Greater Bethel AME Church, Tropical Home for Senior Citizens, North Fork Elementary School, and Kappa Alpha Psi Fraternity (for scholarships). It has also sponsored foster families. Code I has charged, however, some organizations $175 for the use of its facilities. (Testimony of Troutman) The articles of Incorporation of Code I state that the objectives of the organization are to provide a meeting place for recreational purposes of its members, to provide aid and comfort for its members in case of sickness or death, and to assist in any other matters pertaining to the highest orders of American Citizenship. For carrying out these purposes, the corporation is authorized to buy, hold and sell real and personal property, to invest funds, and to construct and operate social club houses. (P-1) Neither the articles nor the bylaws of the corporation explicitly, or by reasonable inference, dedicate it to promoting community, municipal, or county development. (P-1, P-4) According to its treasurer, its main purpose is to provide a facility where the public can enjoy an evening on the town in a conducive club atmosphere. Membership is open to the general public. An alcoholic beverage license would enable the Club to earn additional funds for its operations.
Recommendation Based on the foregoing, it is RECOMMENDED: That Code I's application for a II-C Club alcoholic beverage license be DENIED, without prejudice to its right to reapply after amendment of its charter and bylaws. DONE AND ORDERED this 25th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1983.
The Issue Whether or not the Petitioner, Conduces Club, Inc., is entitled to the issuance of a Series 11-C alcoholic beverage license.
Findings Of Fact The Petitioner, Conduces Club, Inc., a nonprofit corporation incorporated in the State of Florida, has applied to the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of a series 11-C alcoholic beverage license. This license is described in Rule 7A-1.13, Florida Administrative Code, as a club license to sell to members and nonresident guests only. The terms and conditions for the issuance of such a license are as set forth in Subsection 561.20(7)(a), Florida Statutes, and Subsection 565.02(4), Florida Statutes. The Director of the Division of Alcoholic Beverages and Tobacco has denied the application of the Petitioner premised upon the assertion that the Petitioner has failed to meet the requirements set out in the aforementioned sections of the Florida Statutes. The Petitioner has disagreed with that interpretation and a Section 120.57, Florida Statutes, hearing was scheduled and held on April 10, 1979. The crucial language to be considered in determining whether or not the Petitioner should be extended the privilege of operating under a Series 11-C alcoholic beverage license is found in the Subsection 561.20(7)(a), Florida Statutes, which reads as follows: "(7)(a) There shall be no limitation as to the number of licenses issued pursuant to 565.02(4). However, any licenses issued under this section shall be limited to: Subordinate lodges or clubs of national fraternal or benevolent associations; Golf clubs and tennis clubs municipally or privately owned or leased; Nonprofit corporations or clubs devoted to promoting community, municipal, or county development or any phase of community, muni- cipal, or county development; Clubs fostering and promoting the general welfare and prosperity of members of showmen and amusement enterprises; Clubs assisting, promoting, and de- veloping subordinate lodges or clubs of national fraternal or benevolent associa- tions; and Clubs promoting, developing, and main- taining cultural relations of people of the same nationality." (Although the introductory phrase in the above-quoted Subsection makes reference to Subsection 565.02(4), Florida Statutes, as being involved in the process of issuing a license, Subsection 565.02(4), Florida Statutes, true function is the establishment of the requirement that chartered or unincorporated clubs pay an annual state license tax of $400.00, and it is this Subsection 561.20(7)(a), -- Florida Statutes, which establishes those categories of candidates who may receive a Series 11-C alcoholic beverage license.) Of the possible categories for licensure, the one which appears to be the focal point of the controversy is that provision found in Subsection 561.20(7)(a)3., Florida Statutes. In support of its request, the Petitioner presented certain witnesses and items of evidence. Among those items was the testimony of Mrs. E. R. Atwater, Social worker Supervisor with the United States Department of Housing and Urban Development, Housing Management Division, assigned to the Blodgett Community in Jacksonville, Florida. The Blodgett Community is a housing development of some 53 acres which contains 628 housing units with a breakdown of that population containing 301 senior citizens and 1,069 juveniles, with cost of the heads of the households being female. Those persons living in the Blodgett development are described as having a poor economic circumstance. Mrs. Atwater indicated that the Conduces Club, Inc., had on occasion sponsored girls softball teams and boys basketball teams for those young persons living in the Blodgett Community and she had expressed her appreciation in the form of correspondence of January 17, 1979, which is the Petitioner's Exhibit No. 1 admitted into evidence. In addition, Mrs. Atwater indicated that the Conduces Club, Inc., had provided transportation for a trip for the residents of the Blodgett Community to Six Gun Territory located near Ocala, Florida. Arrangements were made for three busses; two of the busses which transported residents on July 16, 1977, and the third bus transported them on August 11, 1977. The trips involved both young people and adults as participants. The letters requesting the assistance of the Conduces Club, Inc., and the confirmation of that request may be found as Petitioner's Exhibits Nos. 2 and 3, admitted into evidence consecutively. The president of the Conduces Club, Inc., Mr. Cornell Tarver, testified in support of the petition. He indicated that the club had been originally formed as the Pacesetter Club but its name was changed in September, 1976, because of a conflict concerning the utilization of the name, which had been preempted by another club. The club was chartered as a nonprofit corporation by the State of Florida on September 22, 1976, under the name, "Conduces Club, Inc." A copy of the Articles of Incorporation may be found as Respondent's Exhibit No. 1 admitted into evidence. Mr. Tarver indicated that the purpose of the club was to help the youth and senior citizens and principally the kids of the Blodgett Community, to include organizing softball and baseball and providing uniforms. He also testified that a certain banquet was hold for these young persons and the parents of those children were invited to attend, and enough food was prepared to food cost of the individuals who reside in the Blodgett Community. He produced certain plaques and trophies awarded to the club. The plague was given by the mothers of the children in the sports programs and the trophy was presented by an unaffiliated club that the Conduces Club had helped to organize. The witness, Tarver, indicated that the club was financed by functions such as dances, fish fries, food sales in their club house, dues of the members and fines. The club itself has twenty-seven members. Other projects the club has participated in, were the contribution of money to local churches and the donation of an organ to one of those churches. On December 16, 1977, the club contributed $500.00 to the National Association for the Advancement of Colored People. The club house is open every day and there are certain activities through the week, to include club meetings and entertainment for the benefit of club members. The members run the club without compensation and the club does not maintain any regular employees. The official statement of the club's purposes may be found in the Respondent's Exhibit No. 2 admitted into evidence. This is a composite exhibit which contains part of the application for the license and a copy of the Bylaws. The objectives of the corporation may be found in Article II of the Bylaws and the activities of the corporation may be found in Article VIII of the Bylaws. Article II states: "The objectives of this organization shall be as follows: To unite fraternally all persons who the membership may from time to time take into the club. To promote brotherhood, sportsmanship, friendship and charity for the membership and their families. To strive at all times to promote and protect the welfare of every member. To promote a spirit of cooperation between its members and the public. To honor outstanding individuals in the City of Jacksonville for their achievement. To do anything necessary, including, but not limited to, the ownership of property, real and personal, for the accomplishment of the foregoing objectives, or those which may be recognized as proper and legal objectives of this club, all of which shall be consistent with the laws, the public interest and the interest of its mergers. To sue or to be sued as a natural person. To bear a seal to be placed on all of the club's official correspondence." Article VIII states: "COMMITTEES Section 1. The following standing committees and such other committees as the directors may, from time to time deem necessary, shall be appointed by the president of the association. Social Committee Athletic Committee Scholarship Committee The duties of the standing committee shall include the following, which shall not, however, prelude other activities by such committees. Section 2. The social committee shall be composed of six members. It shall be the duty of this canted to supervise the use of club room and to plan such club meetings of a purely social nature as it may deem necessary. These may include parties, picnics, and other such social or athletic events sponsored by the organization. Section 3. The athletic committee shall be composed of three members. It shall be the duty of this committee to supervise and manage all athletic activities for the association, including but not limited to management of various athletic teams sponsored by the club. Section 4. The scholarships committee shall be composed of six members. It shall be the duty of this committee to screen applicants for scholarships and deserving students in Duval County, Florida, and to make recommendations to the general membership of its findings of worthwhile recipients of scholarships, or awards." It can be seen that the Petitioner's members have a commendable concern for the community in which the club has its principal base of operation and this concern has been expressed through the activities of the club members which have been described in the course of this Recommended Order; however, it appears from an examination of the testimony in this hearing and the official statement, that is, the Bylaws of this corporation, that the principal purpose of the club is as stated by the Article II B. of the Bylaws, which language states, "To promote brotherhood, sportsmanship, friendship and charity for the membership and their families," and this attitude carries over to foster good relations between those members and the members of the general public. Therefore, the Petitioner is not perceived as being a club which meets the criterion, "devoted to promoting community, municipal or county development or any phase of community, municipal or county development." See Subsection 561.20(7)(a)3., Florida Statutes. This conclusion is reached in examining the definition of the word "devoted," as found in Webster's New World Dictionary of the American Language, College Edition. That definition states that to be devoted one must be, "1. vowed; dedicated; consecrated. 2. very loyal; faithful." and although the community concern of the Petitioner is very high, it does not reach the level of devotion. Consequently, the Director of the Division of Alcoholic Beverages and Tobacco was correct in denying the application for a Series 11-C alcoholic beverage license.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco deny the Petitioner, Conduces Club, Inc.'s request for a Series 11-C alcoholic beverage license. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jennings H. Best, Esquire 3410 North Myrtle Avenue Jacksonville, Florida 32209 Francis Bayley, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. M. Ogonowski Richard P. Daniel Building, Room 514 111 East Coast Line Drive Jacksonville, Florida 32202
Findings Of Fact Petitioner, Helen T. Cook, (formerly Griffin), started working for the Respondent, St. Petersburg Motor Club as Personnel Director on May 15, 1979. In that capacity, she reported to the Chief Executive Officer who was, at the time, Mr. James Hendry. Mrs. Cook remained as Personnel Director until August, 1984, when she was promoted to the position of Managing Director for Personnel, and made a part of senior management. As the Managing Director for Personnel, she was the senior personnel officer within the organization and was required, among other duties, to interview applicants for employment; counsel employees and conduct exit interviews; implement approved company policies; research employee benefits and administer them; serve on the pension committee responding to the Board of Directors; work out personnel solutions with supervisors and employees; maintain legal personnel files on all staff; and represent the Club on all compliance hearings regarding worker's compensation, unemployment compensation, and equal employment opportunity. She reported to the Executive Vice President of the Club. When Mrs. Cook first went to work for the Club, the organization had no rule regarding nepotism. However, in August, 1984, in order to correct a situation then existing involving numerous instances of nepotism among Club employees, the Board of Directors promulgated a rule which was implemented in January, 1985 and which prohibited employment of individuals related to Club employees. When the rule was enacted, incumbent employees related to other employees were grandfathered, but non-related incumbent employees who later married other Club employees were to be covered by the policy. At the time of it's implementation, Mrs. Cook opposed it. Mrs. Cook's husband, Richard, was already employed by the Club when she was hired. They were not married at the time. Mr. Cook was Director of the Club's service center and in her job as director of personnel, she presented potential future employees to him for hire. Mr. Cook was not in her direct line of authority. He worked for the Managing Director of Services, Mr. Schatzman. At the time the problem here came about, Mrs. Cook was the Managing Director of Personnel and on a parallel with her husband's boss. Mrs. Cook and Mr. Cook started dating in April, 1985, approximately one month after the death of his wife. Mrs. Cook immediately notified the Club management of this fact. In her opinion, management seemed delighted because of their affection for both parties. No one attempted to dissuade them from continuing the relationship, nor did anyone ever suggest that the relationship was detrimental to the Club. In her opinion, the matter was so well handled that no one could tell they were dating. Mr. and Mrs. Cook were married on July 14, 1985. At the time, both parties knew that the policy against nepotism was in effect. In June, 1985, before the marriage, Mrs. Cook informed Mr. White, then either Executive Vice President or President and Chief Executive, of their plans. He asked her to hold up on any action while the Board looked into the policy to see if it would be applied to her. Nonetheless, they married and after the marriage she again approached Mr. White, to determine if the anti-nepotism policy would apply to her. At this time, she hoped he could convince the Board to make an exception to the policy for the Cooks. He asked her to hold off on any resignation action to allow the Board to look into the policy in an effort to determine if it was legal and if it would be applied to her. There was never any question in Mrs. Cook's mind that if the rule were to be enforced against them, she, not her husband, would submit a resignation and she informed Mr. White of this prior to the final decision the Board to invoke the policy. A special meeting of the Board was held on November 14, 1985 at which the Board decided that the policy would be applied and enforced in this case. Mr. White was not present at this Board meeting but was informed of it either that day or the next morning by Mr. Harris, Vice Chairman of the Board. That same day, or the next day, Mr. White informed Mrs. Cook of the Board's decision. He appeared to be upset by it and so was she. However, she suggested to Mr. White that a memorandum be sent out by him to advise employes of her departure and the reason therefor. This memo was dated November 20, 1985. The minutes of the Board meeting of November 19, 1985 reflect Mrs. Cook had already elected to resign. Consequently, it is found she was advised of the Board's decision on or before November 19, 1985. Her complaint of discrimination was filed with the Commission on May 19 1986, no less than 181 days after she received notice of the action complained of. Her resignation was effective in January, 1986. From the time she and her husband started dating the relationship, Mrs. Cook believes, never created any problem for the Club. She would not have left her employment but for the Club's policy. In her opinion, problems could have been avoided by taking her out of the loop relating to actions regarding her husband. This would not, however, have avoided the appearance of impropriety, regardless that no actual impropriety existed. In her position as Managing Director of Personnel, Mrs. Cook had access to all personnel files for the more then 300 employees of the Club. She was a policy maker and a member of the top management team. She was aware of all employees' salaries and evaluations and attended evaluation meetings with the Chief Executive Officer and managing directors concerning the evaluations of all directors under them. Though she did not rate any personnel except those who were in her immediate division, nor did she have any say on salaries outside her division, she was aware of them and was a part of the management team which controlled the day to day operation of the Club. Managing directors got together at least twice a day in informal meetings to discuss Club business and at those meetings, such things as evaluations, assignments, and promotions were discussed. Therefore, though she did not rate or direct her husband, she could have had a substantial impact on his career by virtue of her relationship with other managing directors. This is not to say, however, and it must be recognized, that there was any evidence that at any time Mrs. Cook interfered in her husband's career. By her own admission, however, she was a valuable employee and her position was sensitive. On December 31, 1984, prior to her marriage, she executed an Employment at Will statement which acknowledged that her employment could be terminated by either herself or the employer at any time. When Mr. White first learned that the Cooks had developed a personal relationship, it presented no problem for him. He did not believe it would be detrimental to the Club and, in fact, he received no complaints about it from anyone. He was aware of the Club's policy regarding nepotism. When he first became aware of the policy, he requested that the Board reconsider its decision because he felt that it might be illegal. Nonetheless, at no time did he bring the matter up with the Cooks because, to his knowledge, Mrs. Cook was fully aware of it nor did he indicate to her that the Board would not apply it to her. He believed, however, that both Mr. and Mrs. Cook should be allowed to remain as employees even after their marriage and made that recommendation to the Board. Nonetheless, the Board chose to implement the policy. According to Mr. Gregory, a member of the Club's Board, because of a situation regarding the former president, Mr. Henry's hiring of several family members under circumstances incompatible with good morale and discipline within the Club staff, and because of the growing number of Club employees married to other Club employees, (approximately 45 employees were involved), the Board implemented the rule against nepotism. A committee had discussed several alternatives before recommending the anti-nepotism policy and the Board was unanimously in favor of its implementation except for Mr. Henry who, at the time, was still on the Board. When the Board was made aware that the Cooks intended to marry, members were concerned because of Mrs. Cook's position and the image that might be created in the eyes of other employees. As a result, the Board felt compelled, as a business necessity, to enforce the policy notwithstanding Mr. White's urging that Mrs. Cook be kept on because of her value to the Club. The decision to invoke the rule was made reluctantly. It was acknowledged she was a good and valuable employee. However, because of the circumstances, and because of Mrs. Cook's position as Managing Director of Personnel, the Board felt compelled to enforce it. Had it not been for the sensitivity of Mrs. Cook's position, and given Mr. White's desire to keep her, the Board might have been able to look at the situation differently. Under the circumstances, however, it could do nothing else. The decision in no way reflected Board dissatisfaction with Mrs. Cook's performance or any animosity toward her or her husband. The problem was that her position, when considered against the apparent potential for abuse, was the most sensitive of all jobs related to Club personnel. This factor differentiated her situation from other situations involving nepotism and necessitated her departure. This was an appropriate decision under the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Florida Commission of Human Relations dismissing Petitioner's charge of discrimination against the Respondent. RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2095 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the last sentence which has not been proven but is a matter of opinion. Accepted. Accepted as indicating a perception for possibility of abuse, not that Mrs. Cook was guilty of any breach of trust. Accepted and incorporated herein. For the Respondent: Accepted and incorporated herein. Accepted and incorporated herein. Accepted but not controlling. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the testimony quoted which is not a Finding of Fact but a recitation of testimony. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not being a proper Finding of Fact relative to the issues of fact herein. COPIES FURNISHED: Robert F. McKee, Esquire 1724 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638 Michael K. Houtz, Esquire Post Office Drawer 1441 St. Petersburg, Florida 33731-1441 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 =================================================================
