The Issue Should Petitioner impose discipline against the licenses held by Respondent as a Life (2-16), Life and Health (2-18), General Lines, Property and Casualty Insurance (2-20), Health (2-40) and Legal Expense (2-56) agent pursuant to provisions within Chapter 626, Florida Statutes?
Recommendation Based on the facts found and the conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding Respondent in violation of Counts I through V pertaining to his obligations as a fiduciary set forth in Section 626.561(1), Florida Statutes, his violation of Section 626.611(7), (9) and (10), Florida Statutes, and his violation of Section 626.621(4), Florida Statutes, in effect when the violations transpired and that the various licenses held by Respondent be suspended for six months as suggested by counsel for Petitioner. DONE AND ENTERED this 2nd day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2003. COPIES FURNISHED: James A. Bossart, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 William Franklin Outland, III 10840 Northwest 100th Street Reddick, Florida 32686 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Lower Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Respondent, Department of Insurance, is an agency of the State of Florida. Respondent, Bill Gunter, as Insurance Commissioner of the State of Florida, is the agency head of the Department of Insurance. Petitioner, Insurance Services Office, is a rating organization qualified to transact, and is transacting, specified rate-making services in Florida pursuant to a certificate of authority issued by Respondent. The other petitioners are foreign corporations authorized to do business in the State of Florida. They are licensed as automobile casualty insurers by Respondent and transact automobile and casualty insurance business in the State of Florida. The Department has adopted Rule 4-43.03, Florida Administrative Code which provides: 4-43.03 Unfair discrimination in private passenger motor vehicle insur- ance rates - based on sex, marital status and scholastic achievement. No insurer authorized to engage in the business of insurance in the State of Florida shall establish classi- fications or premium rates for any policy, contract or certificate of private pas- senger motor vehicle insurance based upon the sex, marital status or scholastic achievement of the person or persons insured. This rule shall become effective on March 1, 1980. The purpose of the proposed rule is to eliminate the use of sex, marital status and scholastic achievement criteria in the formulation of private passenger automobile insurance premium rates. Tile business which Petitioners conduct in the State of Florida involves, in some direct manner, the setting of private passenger automobile insurance premium rates. In the formulation of these rates Petitioners use, in part, sex, marital status or scholastic achievement criteria, or some combination thereof. Petitioners, with the exception of Petitioner Insurance Services Office, are insurance companies competing with one another in the private passenger automobile insurance market in Florida. They represent a very significant portion of the private passenger automobile insurance business in Florida. All of their premium rates for such insurance are formulated using sex, marital status, or scholastic achievement, or some combination thereof, along with other factors. The rule would apparently invalidate all of the rate classification plans by which Petitioners set premium rates Presently in force in Florida. To comply with the rule the Petitioners will have to devise and implement new rate classification plans. Such an action is a major undertaking by an insurance company. Prior to the adoption of the rule the Department's historic interpretation of the Florida Insurance Code and specifically Section 626.9541(15)(h), Florida Statutes, has allowed rate classification plans using sex, marital status and scholastic achievement criteria in their formulation. Such criteria have historically been part of rate classification plans and, prior to adoption of the rule, have never been disapproved by the Department. It should be noted that Florida is a "use and file" state wherein an insurer files its rate classification plan with the responsibility then shifting to the Department to challenge the validity of that plan. The Respondent did not offer evidence or testimony sufficient to establish that factual changes of any nature have occurred, or that the Department has become aware of new factual information, which would support a deviation from their historic interpretation of the Florida Insurance Code. Historically the Department has not considered rate classification plans which use sex, marital status and scholastic achievement, along with other criteria in their formulation to be "unfairly discriminatory as that term is used in the Florida Insurance Code. As confirmed by the testimony of the Chief Actuary and Director of the Division of Insurance Rating for the Department, as well as expert actuaries testifying on behalf of Petitioners, the best way to equitably reflect differences in expected losses among insureds is to reflect those differences as accurately as possible. From an actuarial standpoint the most equitable classification factors are those that are the most actuarially sound. The classification factors of sex, marital status and scholastic achievement, in light of the present state of the art in the industry, enhances the actuarial soundness of a rate classification for automobile insurance. The Chief Actuary and Director of the Division of Insurance Rating for the Department did not know of any classification plan that eliminated sex, marital status and scholastic achievement as classification factors that is as actuarially accurate as Petitioner State Farm's present classification plan which uses some or all of those classification factors. Respondents have admitted that Section 626.9541 (15)(h), Florida Statutes, (which reads No insurer shall, with respect to premiums charged for automobile insurance, unfairly discriminate solely on the basis of age, sex, marital status or scholastic achievement) does not absolutely prohibit all discrimination on the basis of sex, marital status, or scholastic achievement. In the insurance industry rate classifications necessarily discriminate between different classes of individuals with different levels of expected losses and exposure. Such discrimination is not necessarily unfair. The Economic Impact Statement promulgated by the Department in the adoption of the rule was prepared by Mark Trafton III, Chief Actuary and Director of the Division of Insurance Rating for the Department. The elimination of the subject criteria by the Rule will require insurance companies writing automobile insurance in Florida to devise and file new rate classification plans. Such action on the part of the insurance companies will cause them to incur expenses, possibly substantial in nature. The Economic Impact Statement contains no estimate of, nor reflects any inquiry into, the expense to the industry or individual insurance companies of devising new rate classification plans for use in Florida. In Paragraph 1 of the Economic Impact Statement it is estimated that the cost to the Department of implementing the Rule will be approximately $6,000.00. The evidence establishes that this estimate, at best, reflects only the cost to the Department of the adoption process. It is not intended to reflect any cost to the Department of the actual implementation of the Rule. It is reasonable to assume that because of the Rule there will be a significant increase in the number of rate filings with the Department which the Department will be required to review. The Economic Impact Statement reflects no assessment of any kind, of this potential cost to the Department. There is a class of individuals in Florida presently receiving the benefit of discounted premiums through "good student discounts" offered by one or more insurance companies. This class of individuals will be adversely affected by the Rule in that they may no longer receive the discount they are now receiving. No estimate of this cost to that class of individuals is reflected in the Economic Impact Statement and, in fact, no such estimate was made. Further, the testimony establishes that there was no reason why such an estimate could not have been included in the Economic Impact Statement and its omission was probably an oversight by the preparer of the statement. The evidence establishes that the Department has changed its interpretation of the word "equitably" as used in Section 627.0651(6), Florida Statutes (1979), as well as its interpretation of the phrase "unfair discrimination" as contained in the Florida Insurance Code relevant to this proceeding.
The Issue This case involves an Administrative Complaint filed by the petitioner, State of Florida, Office of Treasurer/Insurance Commissioner, against James H. Bowling and Premium Budget Service, Inc., Respondents. The action is brought under the authority of Chapters 626 and 627, Florida Statutes. The petitioner is attempting to take disciplinary action against the licenses of the Respondents pertaining to their performance in insurance business transactions conducted in the State of Florida. Originally, the Administrative Complaint contained eight counts. At the commencement of the hearing, Count IV of the Administrative Complaint was dismissed. The remaining Counts I through VII accuse Respondent Bowling with a series of substantive violations related to his business transactions with individual customers with whom be allegedly was involved in the selling of insurance in the State of Florida. Specifically, Respondent Bowling is charged with: Receiving premiums or other funds belonging to insurers or others in transactions under his license which were trust funds received by him in a fiduciary capacity, which funds he failed to account for or pay to the insurer, insured or other persons entitled thereto in violation of Subsection 626.561(1), Florida Statutes. Willfully, under his license, circumventing the prohibitions of the Insurance Code, in violating of Sub section 626.611(4), Florida Statutes. Demonstrating a lack of fitness or trustworthiness to engage in the business of insurance, in violation of Subsection 626.611 (7), Florida Statutes. Demonstrating a lack of reasonable and adequate knowledge and technical competence to engage in the transactions authorized by the license or permit, in violation of Subsection 626.611(8), Florida Statutes. Engaging in fraudulent or dishonest practices in violation of Subsection 626.611(9), Florida Statutes. Misappropriating, converting or unlawfully withholding moneys belonging to insurers, insureds, beneficiaries or others received in the conduct of his business pursuant to license, in violation of Subsection 626.6II(10), Florida Statutes. In connection with the purported violation set forth in the aforementioned issue a., willfully violating an order, rule or regulation of the Insurance Department, or willfully violating provisions of the Insurance Code, contrary to Subsection 626.611(13), Florida Statutes. In connection with the purported violation set forth in the aforementioned issue a, violating provisions of the Insurance Code by an act contrary to Subsection 626.621(2), Florida Statutes. The Respondent, James H. Bowling, is accused through Count VIII of a violation of all those provisions set out in the accusations found in the statements a. through h. set out herein, related to remaining Counts I through VII and is an accusation that encompasses the cumulative effect of the violations in remaining Counts I through VII. If the Respondent, James H Bowling, is found to be guilty of the offenses set out in the Administrative Complaint, it is the petitioner's intention to revoke his license and eligibility for future licenses and/or to refuse the issuance of additional licenses as an insurance agent, or to impose as many lesser penalties as may be proper under the provisions of Sections 626.611, 626.621 and 626.681, Florida Statutes, and the Florida Insurance Code. Count VIII, related to the Respondent, Premium Budget Service, Inc., seeks to suspend or revoke its license as a premium finance company, and the basis for such action is premised upon the evidential facts alleged in remaining Counts I through VII and under authority of Subsection 627.832(1)(c), Florida Statutes.
Findings Of Fact THIS CAUSE comes on for consideration based upon the Administrative Complaint of petitioner, State of Florida, Office of Treasurer/ Insurance Commissioner, filed against James H. Bowling and Premium Budget Service, Inc., Respondents. The general details of the nature of the allegations may be found in the issues statement of this Recommended Order, and the particular allegations in each count will be discussed in the course of these findings of fact and the conclusions of law. The Petitioner, State of Florida, Office of Treasurer/Insurance Commissioner, is an agency of the State of Florida charged by statute with the duty to regulate the insurance industry in this state. The authority for such regulation, related to the case sub judice, is established in Chapters 626 and 627, Florida Statutes. The Respondent, James H. Bowling, is a licensed 2-20 insurance agent in the State of Florida, who holds such license with the permission of the Petitioner. Premium Budget Service, Inc., is licensed by the Petitioner pursuant to the provisions of Chapter 627, Florida Statutes. For the period January, 1975, to December, 1978, the Respondent, James H. Bowling, owned and operated as a licensed 2-20 insurance agent in the State of Florida, a company known as Atlas Insurance Agency, Inc. During that time, Bowling was the president of that corporation and was a 50 percent shareholder of its stock issue. Atlas had eight offices throughout Duva1 County, Florida, in which Bowling was transacting the business of the company. His specific function in connection with Atlas was that of the overall responsibility for the operation of Atlas insurance Agency, Inc., in managerial terms. In addition, Respondent Bowling served as the president of Premium Budget Service, Inc., during the period January, 1975, through December, 1978. This company was owned by Sandra R. Bowling, Respondent Bowling's wife. The business of Premium Budget Service, Inc., in the years in question was that of financing premium accounts to be paid by customers of Atlas Insurance Agency, Inc. to the company offering the insurance coverage. Under this arrangement, Premium Budget Service, Inc., financed the amount of the premium for insurance which was being handled by Atlas, and the customer agreed to pay back the amount of premium financed on an installment basis under terms and conditions of an installment contract. Some of the contracts which Premium Budget Service, Inc., had received from Atlas insurance Agency, Inc., for financing were subsequently assigned by Premium Budget to Devco Premium Finance Company. Devco, as a condition of the assignment, paid Premium Budget the amount of principal financed together with a transfer fee and was then reimbursed by the customer who made Installment payments of principal and interest to Devco on the amount of policy premium financed. This arrangement commenced in September, 1975, and was in operation during the pendency of some of the contracts which are at issue in this Administrative Complaint. The contracts which the Administrative Complaint focuses on were contracts involving customers through the Joint Underwriters Association program in Florida. The Joint Underwriters Association Is an organization made up of insurance companies who do business in the State of Florida in which members of the association have as their principal purpose the writing of insurance for high risk automobile drivers who operate automobiles in the State of Florida. Under this plan, Atlas insurance Agency, Inc., used United States Fidelity and Guaranty Company, hereinafter referred to as "U.S.F.&G.", as its servicing carrier in the time sequence relevant to this complaint. The first allegation in the Administrative Complaint concerns an insurance policy which Atlas sold to one Daniel Lashley. Lashley paid the full amount of the insurance premium by money order No. 1306407044 made out in the amount of $307. U.S.F.&G. issued policy No. 8-90-104607. This policy was issued after Atlas had mailed a down payment of $100 to U.S.F.&G. The check from Atlas was written on Bowling's signature. Lashley had paid the money order on April 4, 1977, and U.S.F.&G. had received the $100 deposit on April 28, 1977. The policy was mailed by U.S.F.&G. to Atlas on May 12, 1977, and the down payment check was deposited in the bank account of U.S.F.&G. on May 15, 1977. The effective date of the policy was April 8, 1977, to April 8, 1978. In addition, there was a premium billing requirement of $1.00 which Lashley paid on June 4, 1977. Apparently, this $1.00 payment was made to Atlas, because on November 23, 1977, a notice of termination was sent to Atlas and to David Lashley indicating an outstanding balance of $208. This notice was sent because U.S.F.&G. was unable to locate any payment other than the initial down payment of $100 which had been submitted with the application for policy; notwithstanding the fact that the total policy amount called for $308, which full amount should have been paid within thirty days of the date of issue of the policy. Final cancellation notice was mailed on December 21, 1977. This final cancellation notice was only forwarded to the agent, Atlas; however, on January 5, 1978, a notice was sent to Lashley indicating $103 earned premium due on the policy to keep the policy in effect until the end of the term. Lashley contacted the Florida Department of Insurance to determine why the policy had been cancelled and at that time he furnished proof of payment for the full amount of premium. An investigator with the Florida Department of Insurance contacted U.S.F. &G. who reinstated the policy on April 19, 1978, to be effective December 4, 1977. This reinstatement was made in spite of U.S.F.&G.'s records which showed no payment of the outstanding $208, nor contact from anyone connected with Atlas insurance Agency on the issue of why the policy had been cancelled. The Respondent, James H. Bowling, contended in the course of the hearing that a second check in connection with the Lashley premium had been forwarded to U.S.F.&G. on the Atlas account, check No. 19837, dated May 31, 1977. He also stated that his files indicated a notice of cancellation of November, 1977, to be effective December 4, 1977, but he took no action because a review of the file indicated that full payment had been received by U.S.F.&G., as evidenced by a memorandum from U.S.F.&G., indicating reinstatement and a note from an unnamed Atlas employee to the effect that the policy was to be reinstated, which led him to believe that someone in the Atlas office conferred with the U.S.F.&G. office and believed that the money on the second check of $208 had been found. Bowling's further explanation for the delayed payment of the balance of the policy was to the effect that normally on policies which were financed, only the initial installment was paid down and the balance paid at a later date, and he felt that one of his employees had treated the cash premium payment in Lashley's case in the same manner, by mistake. Testimony in the hearing established that certain checks forwarded to U.S.F. &G. had been mishandled, and those occurrences were happening around the time Lashley's's policy was purchased. Therefore, it has not been satisfactorily shown that the additional amount of $208 was not forwarded by a check dated May 31, 1977. Nonetheless, this does not excuse Atlas nor its managing agent, Bowling, from the necessity to forward all moneys received from Lashley on April 4, 1977, when it was received, and in one lump sum. Nor does It excuse the fact that even though Atlas knew of the cancellation in November/December of 1977, it left it to Lashley to take the initiative to rectify the problem, which was not accomplished until April, 1978; instead of immediately inquiring of U.S.F.&G. about the missing money when they were told of the problem. Accepting Bowling's representations that contacts were made with U.S.F.&G. on the subject of the Lashley account, it is apparent that those contacts took place after Lashley had set matters in motion. leading to the April, 1978, reinstatement. Count II of the Administrative Complaint involves a transaction between Atlas and a Bobby R. McGowan, Sr., to sell McGowan insurance policies. One of the policies was an automobile policy through U.S.F. &G. and a second was a personal effects policy through Parliament Insurance Company. The automobile policy was No. 8-90-056330 and the personal effects policy was No. PIM-18643. The premium on the automobile policy was $546 and the premium on the personal effects policy was $20. The terms of the policies ran from January 13, 1976, through January 13, 1977. There was a contract which McGowan entered into with Premium Budget Service, Inc. to finance the premiums due in the two policies. The total premium of both policies was $566, with a down payment of $198 from McGowan and an amount financed of $368. This contract was assigned to Devco Premium Finance Company in January, 1976. Devco paid for the assignment by having Respondent Bowling execute a sight draft which contained the amount due to Premium Budget on the McGowan account. This execution of the sight draft was on January 14, 1976, and it was honored by Devco on January 16, 1976. The proceeds pertaining to McGowan which were received by Premium Budget Service, Inc., were then transmitted by check to Atlas and Atlas at that point had the total premium amounts of $566. Atlas in turn forwarded $150 to U.S.F.&G by a check bearing Bowling's signature, which was deposited in the U.S.F.&G. account on June 2, 1976. In the interim, Devco requested a cancellation of U.S.F.&G.'s policy on McGowan and that request was made on March 10, 1976. The policy was cancelled and U.S.F. &G. returned $42 of unearned premiums to Devco. A notice of the cancellation was forwarded to Atlas and to McGowan. The reason for the cancellation action by Devco was related to McGowan's nonpayment on the installment contract to Devco. Devco claims to be short $361 in what should have been returned to them as unearned premiums. U.S.F. &G. did not forward that amount because they never received it from Atlas. Respondent, James H. Bowling, sent $366.63 to Devco on the McGowan account under check No. 18779 dated April 7, 1977, by his signature. Devco never received that amount and the cancelled check cannot be found, and Devco has never received its money. The reason for the delay in repaying Devco, according to the Respondent, was because he had an agreement with Devco in the person of their former owner, Doyle E. Varnes, to the effect that the premium money other than the necessary down payment would be held by Atlas, and if a policy was cancelled before it was issued, that the money other than the down payment would be sent by Atlas to Devco and not to U.S.F.&G.; otherwise, after issue the balance could go to the insurer. Varnes testified and did not acknowledge that agreement; additionally, any such agreement would be contrary to the requirement that the full amount of the premium be submitted by Atlas and, more importantly, Bowling's explanation about withholding moneys on this or any other case in which Devco paid Premium Budget for an assigned contract is not believable. Count III deals with a transaction in which Atlas sold Dorothy G. Morgan a policy from U.S.F.&G. This transpired in December, 1975. Dorothy G. Morgan made the down payment of $95, leaving an amount to be financed of $175 of the total premium of $270. This was an instance in which Premium Budget Service, Inc., assigned the contract to Devco under the same arrangement described in the transaction involving the customer, McGowan. On December 25, 1975, Bowling signed the draft for payment to Premium Budget. The term of the policy was December 15, 1975, to December 15, 1976, and the automobile insurance policy number was 8-90-49673. Atlas received the full amount of premium of $270, including the amount to be financed and paid $100 to U.S.F.&G. as a down payment deposited by U.S.F.&G. on May 20, 1976. After the down payment was mailed by a check drawn by Bowling on an Atlas bank account, Devco asked U.S.F.&G. to cancel the policy and a notice of cancellation was forwarded to Atlas and Morgan. This notice of cancellation, as all notices of cancellation involved in a transaction with U.S.F.&G. alluded to in this Administrative Complaint, contained a statement of the down payment amount and the outstanding premium amount. At that point of the notice of cancellation, U.S.F.&G. had not received the balance of the premium payments beyond the $100, the initial installment, and it did not return any moneys to Devco after the policy was cancelled because the amount of the earned premium was $109 which exceeded the amount of down payment by $9, leaving a negative balance. Devco was eventually paid the amount of money that it had outstanding, to-wit, the $170; by a check dated March 21, 1979, drawn on the account of The insurance Store, Inc. The draft on The Insurance Store, Inc., carries Respondent Bowling's signature and may be found as the Respondent's Exhibit No. 5 admitted into evidence. (Count IV had been dismissed prior to the hearing.) Count V involves the transaction between Atlas Insurance Agency, Inc., and one Willard I. Rader. This transaction involved the sale of an automobile policy through U.S.F.&G. with the premium amount of $370 which was subsequently adjusted to $428, policy No. 8-90-49616, and a personal effects policy through Parliament Insurance Company, No. PIM-232l3, with a premium of $20 produced by Atlas. The terms of the two policies were January 12, 1976, to January 12, 1977. The policies were assigned by Premium Budget Service, Inc., to Devco under the arrangement described above and on Bowling's signature to a draft dated January 14, 1976, which draft was honored by Devco on January 16, 1976. Premium Budget having received the proceeds from the assignment of the contract to Devco, paid Atlas moneys sufficient to leave Atlas with the full amount of the premium. In the beginning, the total premium for both policies was $390, with the down payment of $137, leaving $253 to be financed. Atlas forwarded $100 to U.S.F.&G.`s representative as a minimum down payment and U.S.F.&G. deposited that amount of money on June 21, 1976. U.S.F.&G. did not receive any further moneys from Atlas. Devco subsequently requested that the policy be cancelled and the policy was cancelled and Atlas and Radar were notified of the cancellation. U.S.F.&G. returned no money to Devco, in view of the fact that the earned premium was $177 and the amount of down payment was $100. On April 25, 1978, Atlas Insurance Agency, Inc., wrote a check under the signature of the Respondent, Bowling, in the amount of $270 which was paid to Devco. This $270 represented the balance of the premium down payment which should have been forwarded to U.S.F.&G. with the $100 down payment. The check may be found as the Respondent's Exhibit No. 6 admitted into evidence. Count VI involves the sale of an automobile policy by Atlas to Gerda M.Weidman. This policy was issued by U.S.F.&G. under No. 8-90-49695. The amount of premium was $184 which was later adjusted to the amount of $211. The term of the policy was from December 8, 1975, to December 8, 1976. The Weidman policy was financed to the extent of $120 of the original $184, the down payment being $64. The finance agreement was arranged by Premium Budget Service, Inc., who assigned the contract to Devco under terms described above. The sight draft was executed under Bowling's signature on December 9, 1975, and was honored by Devco, which assignment proceeds were transmitted through Premium Budget to Atlas, leaving Atlas with $184. Atlas transmitted $50 of that $184 as a down payment, instead of the proper amount of $184. This $50 amount was deposited by U.S.F.&G. on March 30, 1976. Devco had in February, 1976, requested the cancellation of the policy and the policy was cancelled with Atlas and Weidman being notified of the cancellation. U.S.F.&G. returned $9 of unearned premium to Devco. On April 25, 1978, a check was issued from Atlas Insurance Agency, Inc., to Devco in the amount of $134 under signature of James H. Bowling. This $134 represented the balance of the moneys due to Devco on the premium amount financed by Devco. The check in the amount of $134 may be found as Respondent's Exhibit No. 7 admitted into evidence. Count VII of the Administrative Complaint charges this Respondent, James H. Bowling, with violations connected with the sale of an automobile insurance policy by Atlas to one John K. Detmer. On May 5, 1977, John K. Detmer paid Atlas $210 as a down payment. An additional $428.08 was financed by Premium Budget Service, Inc., which amount reflected interest and other charges. The payment was for the purchase of a policy from U.S.F.&G., which issued policy No. 8-90-104724 effective May 8, 1977. The policy was issued after they received only $200 as a down payment, compared to the full amount of premium required, which would have been the $210 Detmer paid together with that portion of the $428.08 balance related to the premium. Detmer subsequently paid the entire amount required under the finance contract with Premium Budget Service, Inc. On November 21, 1977, U.S.F.&G. cancelled the policy after notifying Atlas and Detmer of the cancellation, in view of the fact that they had only received the $200 deposit and other moneys were due and owing on the premium. This policy has never been reinstated by U.S.F. &G. The Respondent claims that the additional amount of $399 was mailed to U.S.F.&G. under check No. 20512 from the account of Atlas drawn on July 13, 1977; however, U.S.F.&G. claims that they never received the additional payment. The Respondent's files indicate the cancellation notice and the effective date of that notice to be December 4, 1977, and a note that the policy was to be reinstated. There are no notes in the files with U.S.F.&G. of any conversation pertaining to the subject of reinstatement. Accepting the representation that the second check was forwarded on July 13, 1977; the Respondent, Bowling, as the managing agent of Atlas and Premium Budget, acted inappropriately in not forwarding the full amount of premium as one lump sum payment and in the task of following up the cancellation of the policy. Furthermore, even if it is assumed that there was some conversation between employees of Respondent Bowling's office and U.S.F.&G. and a note placed in the Atlas file to the effect that there would be reinstatement, there should have been a follow-up with Detmer to make certain that the policy had been reinstated, particularly since the cancelled check in the amount of $399 has never been returned and, had the policy been reinstated, it is reasonable to expect some notification memorandum would have been given such as was given in the Lashley matter. (Section 120.57, Florida Statutes, allows the parties to submit proposed findings of fact, conclusions of law and recommendations. The Respondents have availed themselves of that opportunity and those proposals have been reviewed prior to the rendition of this Recommended Order. To the extent that the proposals are not inconsistent with this Recommended Order, they have been taken into account and utilized in rendering the Recommended Order. To the extent that the proposals by the Respondents are inconsistent with this Recommended Order, they are hereby specifically rejected.)
Recommendation It is recommended that the license of the Respondent, James H. Bowling, to operate as a 2-20 insurance agent in the State of Florida be REVOKED. It is further recommended that the action against the license of Premium Budget Service, Inc., be DISMISSED DONE AND ENTERED this 6th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Patrick F. Maroney, Esquire Office of Treasurer/Insurance Commissioner 428-A Larson Building Tallahassee, Florida 32301 John London Arnold, Esquire 919 East Adams Street Jacksonville, Florida 32202 =================================================================
