Florida/Georgia Personal Injury & Workers Compensation

...ing Bowling's licenses and his eligibility to be licensed as an insurance agent. A hearing officer of DOAH recommended findings, and the Department's final order found, that Bowling committed several similar violations of the insurance code, notably Section 626.611(10), Florida Statutes (1979), which requires license suspension or revocation if the agent is found guilty of Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license....

...forwarding the application for insurance. We therefore vacate the Department's revocation order, dismiss certain charges, and remand the case to the Department for further action on the charges not dismissed. The charges against Bowling are based on Section 626.611, which in contrast to Section 626.621 (authorizing "discretionary" action against licensees) specifies "grounds for compulsory refusal, suspension, revocation of license or permit." The revocation grounds stated in the Department's or...

...ng to others. *170 Count 8, Cumulative. The Department charged and found: in cumulative effect the specific transactions relied on demonstrate that Bowling lacks the necessary "fitness or trustworthiness" to engage in business as an insurance agent. Section 626.611(7)....

...received ... in a fiduciary capacity" all premiums, return premiums, and other funds belonging to another and received by an agent, and requiring that the agent account for and pay those funds over "in the applicable regular course of business"; and Section 626.611(10), which requires suspension or revocation of an agent's license for "misappropriation, conversion, or unlawful withholding of moneys" belonging to another....

...t be suspended or revoked [6] if an agent willfully withholds payment of premium moneys belonging to the insurer or another when in the "applicable regular course of business" the money should have been paid. Willfullness is a necessary element of a Section 626.611(10) violation because the violation draws essential elements from Section 626.561, a criminal statute which punishes the proscribed conduct as "larceny by embezzlement"; [7] because willfullness is explicitly an element of companion subsections including Section 626.611(13), making "willful violation of any provision of this code" a ground for compulsory revocation or suspension; and because, absent the element of willfullness, "unlawful withholding" *171 as employed in Section 626.611(10) would evoke a compulsory and more drastic penalty than companion Section 626.621 imposes for an agent's apparently more flagrant conduct of withholding premiums after demand for payment by the insurer....

...it shall provide a further evidentiary hearing. Section 120.68. The order revoking Bowling's license and his eligibility for licensing is VACATED and the cause is REMANDED. THOMPSON, J., and WOODIE A. LILES (Ret.), Associate Judge, concur. NOTES [1] Section 626.611, Florida Statutes (1979): 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 any one or more of the following applicable grounds exist: ..... (7) For demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [2] Section 626.611(13): (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. [3] Section 626.611(4): (4) If the license or permit is willfully used, or to be used, to circumvent any of the requirements or prohibitions of this code. [4] Section 626.611(9): (9) Fraudulent or dishonest practices in the conduct of business under the license or permit....

...ension, revocation, or refusal of license") permits the Department to fine Bowling instead of revoking or suspending his license. The Department disagrees, saying in its final order that suspension or revocation is required for conduct proscribed by Section 626.611....

...[8] Section 626.621(4) specifies as a ground "for discretionary refusal, suspension, or revocation of license or permit": (4) Failure or refusal, upon demand, to pay over to any insurer he represents or has represented any money coming into his hands belonging to the insurer. The redundancy of Sections 626.611(10) and 626.621(4) is unresolved by any Department rule or order interpreting and explaining the statutes....

...5, Fla.Laws (1941), Section 634.21, Florida Statutes (1953), corresponding to present section 626.621(4); and Ch. 24086, Sec. 13, Fla.Laws (1947), Section 627.31, Florida Statutes (1951), Section 634.21, Florida Statutes (1953), corresponding to present Section 626.611(10)....

...supports the findings of fact, we decline to disturb them. We also reject a belated claim that the licensee did not have adequate notice of the charges against her. But we agree that the Department failed, as a matter of law, to prove a violation of section 626.611(9), Florida Statutes (1989)....

...lleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act."). The present administrative complaint alleged the factual chronology of the transaction in detail and posited violations (among others) of section 626.611(5), Florida Statutes (1989), which forbids wilful misrepresentation of any annuity or insurance contract, and section 626.9521, Florida Statutes (1989), which forbids knowingly making false statements in negotiating an insurance polic...

...plaint set out several statutory provisions which by their own terms require proof of intentional misconduct. This combination sufficed to inform the licensee what was at issue, or so the agency was free to assume, absent a timely motion to dismiss. Section 626.611(9) Construed In general, a reviewing court owes deference to an agency's interpretation of a statute the agency administers, Dampier v....

...Werner failed to disclose material features of one annuity contract in one transaction. She was not found guilty of any other fraudulent or dishonest "practice" involving this or any other complainant. The Department's final order nevertheless found that she violated section 626.611(9), Florida Statutes (1989). In this respect, the final order adopts the hearing officer's conclusion that a single episode of misconduct amounted to "[f]raudulent or dishonest practices in the conduct of business under [appellant's] license." § 626.611(9), Fla. Stat. (1991). While it has been held that a single act or a single criminal conviction may demonstrate "lack of fitness or trustworthiness" within the meaning of section 626.611(7), Florida Statutes (1989), see Natelson v. Department of Ins., 454 So.2d 31 (Fla. 1st DCA 1984), the statutory term "practices" used in section 626.611(9), Florida Statutes (1989), contemplates more than a solitary lapse. The "single act of misconduct" found here did not establish a violation of section 626.611(9), Florida Statutes (1989)....

...First, the hearing officer's recommendation as to penalty assumed that appellant's sale of an annuity in a bank violated section 626.988(8), Florida Statutes (1989), which the final order found inapplicable to the sale of annuities. Second, we have concluded as a matter of law that no violation of section 626.611(9), Florida Statutes (1989), was proven....

...Natelson pled guilty to the charge as it related to cannabis only and was sentenced to a term of thirty months in a federal penitentiary. After release from prison, Natelson was charged by administrative complaint with (1) demonstrating lack of fitness or untrustworthiness to engage in the business of insurance, Section 626.611(7), Florida Statutes; (2) having pled guilty, in this or any state, to a felony involving moral turpitude, Section 626.611(14), Florida Statutes, and (3) having pled guilty, in this or any state, to a felony, Section 626.621(8), Florida Statutes....

...abis was an insufficient basis for the department's finding that he has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance and that his license, therefore, is not subject to the mandatory revocation sanctions of Section 626.611(7)....

...It is certainly possible to perceive the acts to which Natelson pled guilty as evincing untrustworthiness and unfitness to maintain such a trusted fiduciary position. We are compelled, therefore, *33 to AFFIRM the final order revoking Natelson's licenses on the basis of a violation of section 626.611(7). In so doing we need not reach the issues raised as to revocation under sections 626.611(14) and 626.621(8)....

...Snyder, San Francisco, Cal., for Consumers Union of U.S., Inc., amicus curiae. OVERTON, Justice. This appeal from Dade County Consumer Advocate's Office v. Department of Insurance, 457 So.2d 495 (Fla. 1st DCA 1984), concerns the validity of sections 626.611(11) and 626.9541(1)(h)1, Florida Statutes *1033 (1983), [1] which prohibit insurance agents from accepting from their customers a commission lower than the commission set by the insurer....

...esponded to by the district court in its opinion. Many of these arguments have been previously unsuccessfully made to uphold statutes or regulations limiting consumers' bargaining power for other services. For the reasons expressed, we find sections 626.611(11) and 626.9541(1)(h)1, Florida Statutes (1983), are unconstitutional under article I, section 9, of the Florida Constitution to the extent they prohibit insurance agents from rebating any portion of their commissions to their customers....

...They should not be imposed from above by appointed judges in contravention of the public will. I would quash the decision of the district court of appeal and direct that the judgment of the circuit court be affirmed. [4] ADKINS and SHAW, JJ., concur. NOTES [1] Section 626.611 provides, in pertinent part: The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agen...

...ned unless it is clearly erroneous. Cf. Natelson v. Department of Ins., 454 So.2d 31, 32 (Fla. 1st DCA 1984) (the Department of Insurance's construction of the term "lack of fitness or trustworthiness to engage in business of insurance", provided in Section 626.611(7), Florida Statutes, as including the licensee's conviction of the offense of criminal conspiracy to traffic in illicit drugs was within the range of possible constructions of the statute of which it is empowered to regulate)....

Chancellor found this section was brought forward as § 626.0611. However, there is a material difference in these

...We have jurisdiction. Art. V, § 3(b)(5), Fla. Const. For reasons expressed below, we affirm the trial court's order declaring the statutes unconstitutional. MATERIAL FACTS S. Clark Butler, a builder and developer, challenges the constitutionality of sections 626.611(11), [1] 626.8437, [2] 626.9541(1)(h)3.a., [3] *1212 627.780, [4] 627.782 [5] and 627.783 [6] of the Florida Statutes (1997) and rule 4186.003(13)(a) *1213 of the Florida Administrative Code, [7] which prohibit title insurance agents from neg...

...See § 627.782(1). Butler seeks the right to negotiate the agent's share of the risk premium only. In pursuit of this end, Butler filed a complaint against the Department of Insurance seeking a declaratory judgment that sections 626.572, 626.9541(1)(h)3.a., and 626.611(11), Florida Statutes (1997), and rule 4-186.003(13) were unconstitutional as a violation of his substantive due process rights under article I, section 9 of the Florida Constitution....

...iate a portion of his or her share of the risk premium, to be unconstitutional. CONCLUSION In sum, we hold that the decision in Dade County applies to the statutes at issue in this case, [18] and in accordance with Dade County, we hold that sections 626.611(11), 626.8437, 626.9541(1)(h)3.a., 627.780, 627.782 and 627.783 of the Florida Statutes and rule 4-186.003(13)(a) of the Florida Administrative Code, to the extent they prohibit title insurance agents from rebating a portion of their risk pre...

...WELLS, C.J., and HARDING, ANSTEAD, PARIENTE and QUINCE, JJ., concur. SHAW, J., dissents. LEWIS, J., recused. NOTES [1] The provisions in chapter 626, Florida Statutes, relate to the licensing procedures and general requirements for insurance agents. Section 626.611(11) gives the Department of Insurance the authority to deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency ......

...s to the applicant, licensee, or appointee any one or more of the following applicable grounds exist: . . . . (11) Unlawfully rebating, attempting to unlawfully rebate, or unlawfully dividing or offering to divide his or her commission with another. § 626.611(11), Fla. Stat. (1997). [2] Section 626.8437, Florida Statutes (1997), contains the same provisions as section 626.611, but refers specifically to title insurance agents....

...by the recent legislative enactment. [12] That provision states: "No person shall be deprived of life, liberty or property without due process of law ..." Art. I, § 9, Fla. Const. [13] Specifically, the Consumer Advocate challenged the validity of section 626.611(11) and section 626.9541(1)(h)1, Florida Statutes (1983). Section 626.611(11) is the same statute challenged by Butler and states that the department may take disciplinary action against any agent who rebates or divides his or her commission with another....

...Kutter, Tallahassee, for appellee. LARRY G. SMITH, Judge. Brewer appeals an order of the Insurance Commissioner revoking his licenses and eligibility to hold the licenses of ordinary life and general lines agent including disability insurance agent. He urges that Sections 626.611 and 626.621, Florida Statutes, under which his licenses and eligibility were revoked, are unconstitutional because they unlawfully delegate legislative authority and that the revocation of his licenses is not supported by competent substantial evidence....

...that the penalty imposed in this case may not be reviewed by this court because it is within the permissible range of statutory law. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1978). Next, we consider Brewer's argument that Sections 626.611 and 626.621, Florida Statutes, constitute an unlawful delegation *595 of legislative authority contrary to the provisions of Article III, Section 1 of the Florida Constitution. These statutes provide the grounds for denial, suspension, revocation, or refusal to renew insurance licenses. Section 626.611, Florida Statutes states the compulsory grounds for such penalties and Section 626.621, Florida Statutes, states the discretionary grounds. Section 626.611 provides, in part: The department shall deny, suspend, revoke or refuse to renew or continue the license of any agent, solicitor, or adjuster, ......

...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: ......

....621(2), Florida Statutes, which allows discretionary revocation of a license for violation of any provision of the Code. In the charges sustained against Brewer, he was also found to have violated one or more of subsections (5), (7), (9) or (10) of Section 626.611. Brewer contends that Sections 626.611 and 626.621, do not provide any standard or guideline as to which acts or omissions would constitute grounds for revocation, or which would require only suspension or other penalty....

...neral welfare, morals, and safety of the public, it is not essential that a specific prescribed standard be expressly stated in the legislation. In such situations the courts will infer that the standard of reasonableness is to be applied." Sections 626.611 and 626.621 are part of a legislative scheme for determining whether applicants are qualified and remain qualified and fit to be insurance agents....

...rer may terminate its appointment of any general lines agent, life agent, disability agent, or limited license agent at any time. Except when termination is upon a ground which would subject the agent to suspension or revocation of his license under section 626.611 or section 626.621, the insurer shall give at least 60 days advance written notice of its intention to terminate such appointment to the agent, except such 60 days advance notice of its intention to terminate such appointment shall no...

...We have on appeal a final order of the Circuit Court dismissing an amended complaint filed by appellant, S. Clark Butler. Butler, joined by the Florida Home Builder's Association, challenged the constitutionality of Rule 4-186.003(13)(a), Florida Administrative Code, and sections 626.9541(1)(h)3.a., 626.611(11) and 626.572, Florida Statutes (1993)....

...On June 30, 1995, Butler filed an amended complaint to reflect recent changes in the numbering and substance of Rule 4-186.003(11)(i). [1] Appellant also included in the amended complaint a challenge to the constitutionality of sections 626.9541(1)(h)3.a., 626.611(11), and 626.572, Florida Statutes (1993), citing basically the same reasons as those cited in challenging the rule....

...Section 626.9541(1)(h)3.a. [2] prohibits a title insurance agent from giving an unlawful rebate or abatement of the agent's commission. Florida Administrative Code Rule 4-186.003(13)(a) [3] implements that section by likewise prohibiting illegal rebates. Section 626.611(11) provides for disciplinary action against any agent who unlawfully rebates or divides a commission with another....

...After a hearing on October 23, 1995, the circuit court dismissed the amended complaint without prejudice for failure to exhaust administrative remedies. This appeal ensued. We find that this constitutional challenge focuses upon the facial validity of the anti-rebate statutory scheme as set forth in sections 626.9541(1)(h), 626.611(11) [4] and 626.572, Florida Statutes (1993) [5] and Rule 4-186.003(13)(a), Florida Administrative Code....

...abatement of charges for abstracting, examinations, or closing charges. At least actual cost must be charged for related title services in addition to the adopted risk premium. [4] The Department and the Intervenors originally took the position that section 626.611(11) did not apply to title insurance....

...mplement a statute, and not with rules that implement an allegedly unconstitutional statute. [7] The instant case is very similar to Dade County Consumer Advocate's Office, in which an action was brought challenging the constitutionality of sections 626.611(11) and 626.9541(1)(h)1, Florida Statutes (1983), which prohibit life insurance agents from negotiation with clients as to the amount of their commissions or offering to rebate portions thereof to clients....

...Appellant further contends the Department erred in rejecting or modifying the ALJ's finding that the Department did not prove by clear and convincing evidence that she had demonstrated a lack of fitness or trustworthiness to engage in the business of insurance pursuant to section 626.611(7), Florida Statutes (2004), or had engaged in fraudulent or dishonest practices pursuant to section 626.611(9), Florida Statutes (2004)....

...The instant action began when the Department filed an administrative complaint, alleging that Appellant sold ancillary insurance products to three customers without their informed consent and that her actions constituted grounds for suspension or revocation of her license under sections 626.611 and 626.621(6), Florida Statutes (2004)....

...tely, the ALJ found that the Department had failed to prove that Appellant had demonstrated a lack of fitness or trustworthiness to engage in the business of insurance or that she had committed fraudulent or dishonest practices within the meaning of section 626.611....

...g. He recommended a sixty-day suspension of Appellant's license. The Department issued an Amended Final Order, accepting the finding that Appellant had engaged in sliding but rejecting the finding that the Department had not proven the violations of section 626.611....

...In rejecting this finding, the Department ruled that the ALJ had failed to follow "the essential requirement of law that inferior tribunals must follow the applicable precedent of superior tribunals." The Department then opined that under Thomas, the ALJ was required to find violations of section 626.611(7) and (9) because the insurance transactions in the instant case were indistinguishable from the transaction in Thomas, and the Thomas court upheld findings that the appellants had violated those statutory sections. The Department ruled that because the ALJ found " intentional wrongdoing" by Appellant, her actions constituted violations of sections 626.611(7) and (9)....

...ALJ had ruled that an agent who intentionally engages in sliding "is nonetheless fit and trustworthy to hold an insurance license, and that intentional sliding is not dishonest." The Department further concluded that sliding is a per se violation of section 626.611(7)....

...In consideration of the modified factual findings, the Department suspended Appellant's license for twelve months, rather than the sixty days recommended by the ALJ. The Department properly concluded that the ALJ's determinations that Appellant had engaged in sliding but had not violated the provisions of section 626.611 were factual findings....

...Accordingly, we affirm the portion of the Amended Final Order adopting the ALJ's finding that Appellant engaged in sliding in violation of the insurance code. Turning now to the Department's rejection of the ALJ's finding that the Department failed to prove a violation of section 626.611, we conclude that the Department improperly substituted its judgment for that of the fact-finder....

...Thus, this Court may consider whether the agency or an ALJ properly interpreted a governing statute in order to effectively review whether the finding of a violation or *103 non-violation of the statute should be upheld. In this case, the ALJ did not provide an explicit interpretation of sections 626.611(7) and (9)....

...Instead, he simply found that the Department had not met its burden of proof with respect to the alleged violations of these statutory sections. In disagreeing with this finding, the Department opined that sliding, under the definition in section 626.9541(1)(z)3, is a per se violation of section 626.611(7). The Department further opined that Appellant's actions were indistinguishable from the actions discussed in Thomas, and that because the Thomas court upheld a finding that the agents had violated section 626.611(9), the ALJ should have reached the same finding. We disagree with the Department on both points and hold that the ALJ properly found that the Department failed to carry its burden of proof as to the alleged violations of section 626.611....

...When an insurance agent engages in sliding, the Department has discretion over whether to take action against the agent's license. § 626.621. In contrast, when an insurance agent has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance, under section 626.611(7), the Department is required to either suspend or revoke the agent's license....

...This statutory distinction indicates that the Legislature recognized that some instances of sliding would not rise to the level of a demonstration of unfitness or untrustworthiness. While an instance of sliding may satisfy the demonstration prohibited under section 626.611(7), sliding is not a per se demonstration of unfitness or untrustworthiness. The instant case provides a good example of the fine-line distinction between section 626.9541(1)(z)3 and section 626.611(7)....

...ng were not required by law, the ALJ's findings reflect that he was convinced she had not intentionally misrepresented the nature of the products or intentionally prevented the customers from discovering the truth. In opining that Appellant violated section 626.611(9), the Department misconstrued one of the ALJ's findings as stating that Appellant engaged in "intentional wrongdoing." In fact, a review of the ALJ's Recommended Order reveals that he never used this phrase....

...A finding that Appellant had intentionally engaged in sliding would have been inconsistent with a finding that she had not demonstrated unfitness and untrustworthiness. However, because the ALJ did not make such a finding, there was no error in his ruling that the Department had not shown a violation of section 626.611(7). Finally, the ALJ's finding as to section 626.611(9) does not conflict with the other findings represented in the Recommended Order or the Second District's opinion in Thomas....

...ppellant and her customers, that she had not engaged in fraud or dishonesty. Because the ALJ did not depart from the essential requirements of the law, and there was otherwise no error in the finding that the Department failed to prove violations of section 626.611, this finding should not have been disturbed....

...ensive findings of fact and conclusions of law. The order summarized the precise charges against Dyer as follows: As to both counts I and II, Petitioner [Department of Insurance] specifically alleges that Respondent is guilty of: misrepresentation, (626.611(5) and 626.9541(1)(a); a demonstrated lack of fitness and trustworthiness to engage in the insurance business, (626.611(7); a demonstrated lack of general knowledge, (626.611(8); fraudulent or dishonest practices, (626.611(9); willful failure to comply with a rule or order of the department, (626.611(13) and 626.621(3); violation of the provision of the insurance code or other law, (626.621(2); violation of the rule against "twisting", 626.621(5); engaging in unfair or deceptive methodology of competition or being a source of loss or inju...

...When considered along with Respondent's representation or acquiesence in Mr. Chappuis' representation of dental, vision and hearing coverage when he knew Mrs. Laws already wore a hearing aid, it also constituted willful misrepresentation or deception in violation of Section 626.611(5) and an unfair or deceptive practice under Sections 626.9541(1)(b) and (1)(e)1. It also casts doubt on his fitness and trustworthiness to engage in the business of insurance under Section 626.611(7)....

...Having concluded that Respondent's actions constituted at least some violations of the pertinent statutes and rule, the question next for resolution is the determination of an appropriate disciplinary action. At least some of Respondent's violations fall under the purview of Section 626.611, which calls for compulsory suspension or revocation....

...r proceedings." (Emphasis added.) II. Dyer argues that the record lacks competent, substantial evidence to support factual findings that he violated any provisions of the cited statutes. He emphasizes that the only charge of willful misconduct under section 626.611 found by the hearing officer related to subparagraph (5) of that section....

...on against whom the penalty could be imposed. Yes Dear, Inc. v. Department of Revenue, 523 So.2d 1235 (Fla. 1st DCA 1988); Holmberg v. Department of Natural Resources, 503 So.2d 944 (Fla. 1st DCA 1987). As Dyer was found guilty of violating sections 626.611, 626.621, and 626.9541(1), Florida Statutes (1987), [1] these sections are necessarily the focus of this analysis. A. Chapter 626, as part of the Florida Insurance Code, [2] is entitled "Insurance Field Representatives and Operations." Sections 626.611 and 626.621 are found in Part I of chapter 626, which is entitled "Insurance Representatives; Licensing Procedures and General Requirements." This part specifically "applies as to insurance agents, solicitors, service representatives, adjusters, and insurance agencies." *1014 § 626.022(1), Fla. Stat. A "health agent" is defined in section 626.062 as "one representing, as to health insurance, only, an insurer transacting health insurance," and is required to obtain an agent's license pursuant to section 626.112(1). Section 626.611 sets forth grounds of misconduct requiring compulsory suspension or revocation of an insurance agent's license....

...retion to suspend or revoke an agent's license. [4] It is important to note that section 626.621 is applicable only if the violation thereof exists "under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611." In other words, section 626.621 cannot be applied whenever the insurance agent has also violated a provision in section 626.611....

...the agent is found guilty of multiple violations of either or both sections. The severity of the penalty to be imposed must be determined under the statute prescribing the grounds and penalty for the most serious offense. Thus, when one has violated section 626.611 and 626.621, section 626.611 governs the penalty to be imposed....

...nalty of suspension or revocation, or the authorized alternative fine and probation in lieu thereof, can be imposed even though multiple violations are found. The statutory scheme is abundantly clear that when a licensed insurance agent has violated section 626.611, such violation requires mandatory suspension or revocation, precluding the application of section 626.621 and use of the alternative sanctions as provided in sections 626.681 and 626.691. In this circumstance, the Department is obligated to impose either suspension or revocation pursuant to section 626.611, with the severity of the penalty to be based upon the number and severity of all offenses of which the licensee has been found guilty at that time. In the instant case, Dyer has been found guilty of at least one ground of misconduct under section 626.611(5), so his suspension was mandatory as a matter of law....

...The Department, however, makes a unique argument in an effort to avoid the obvious restrictions on the exercise of its discretion found in these sections of the insurance code. The Department argues that the fines imposed against Dyer were not premised on violations of sections 626.611 and 626.621, but rather were premised on Dyer's violations of section 626.9541(1)....

...th the hearing officer's findings of fact. The hearing officer's recommended penalty of withholding suspension and assessing a fine in lieu of suspension was clearly contrary to the controlling statutes in light of his finding that Dyer had violated section 626.611....

...for NIMMONS, J. NOTES [1] The substantive issues in this proceeding are governed by the 1987 edition of Florida Statutes, and all statutory references will be to that edition, unless otherwise indicated. [2] § 624.01 et seq., Fla. Stat. (1987). [3] Section 626.611 states in part material to this case: The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent,......

...Hayes of Martin, Ade, Birchfield & Johnson, Jacksonville, for amicus curiae American Council of Life Ins., Inc. ERVIN, Chief Judge. Appellants, Dade County Consumer Advocate's Office and Walter Dartland, challenge the constitutionality of Sections 626.611(11) and 626.9541(1)(h)1, Florida Statutes (1983), [1] which prohibit insurance agents from negotiating with clients as to the amount of their commission, or offering *497 to rebate a portion thereof to the clients, alleging that they violate the due process clause, Article 1, Section 9, of the Florida Constitution....

...ngs has been rejected by modern courts. [6] In the absence of any apparent rational relation between the prohibition of rebates and some legitimate state purpose in safeguarding the public welfare, we conclude *499 the anti-rebate statutes, sections 626.611(11) and 626.9541(1)(h)1, constitute an unjustified exercise of the police power of this state, and are therefore violative of the due process clause, Article 1, Section 9, Florida Constitution. We have considered appellees' argument that the effect of an invalidation of the two statutory provisions would do more than simply permit an agent to contract with a customer over a rebate of his commission; that section 626.611(11), providing for disciplinary action for "rebating, or attempt thereat, or unlawfully dividing or offering to divide his commission with another", includes both rebating an agent's commission and dividing an agent's commission with anyone....

...declared unlawful elsewhere in chapter 626, specifically: section 626.753 (general lines agents and solicitors); section 626.794 (life insurance agents); and section 626.838 (health insurance agents). Those three statutory provisions — rather than section 626.611(11) — identify what is an unlawful division of an agent's commission, and prohibit such a division. Disciplinary action for unlawful divisions is provided for in section 626.753(4) and section 626.611(13)....

...For example, appellees first claim that if section 626.9541(1)(h)1a is struck down, that agent's misrepresentations would thereby be authorized. Appellees may have overlooked the fact that such misrepresentations are now prohibited in sections 626.9541(1)(a), (b) and (e) and 626.611(5)....

...Although section 626.9541(1)(h)1 may seem to cover a wide range of practices, its title is styled "Rebates" and simply applies to the variety of ways in which an agent may offer a rebate to a customer. REVERSED. BOOTH and WENTWORTH, JJ., concur. NOTES [1] § 626.611(11), Fla....

...As an alternative to section 626.207(3), the Department cited section 626.207(4), Florida Statutes (2011), which provides an absolute fifteen-year disqualification period for a felony involving moral turpitude that is not covered by section 626.207(3). In addition, the Department cited section 626.611(1), (7), and (14), Florida Statutes (2011), which list as reasons to deny applications for licensure an applicant’s lack of one or more of the qualifications specified in the Insurance Code, lack of fitness or trustworthiness to engage in the business of insurance, or conviction of a felony....

...§ 626.730(1), Fla. Stat. (1985). To regulate this public purpose, the Department is authorized to conduct inquiries concerning improper conduct by any licensed agent and to suspend licenses for various statutorily established grounds. §§ 626.601, 626.611, Fla....

...stomer who is an undesirable insurance risk. If this is true, it may behoove the insurance commissioner to assure that insurance agents can receive a reasonable premium for high-risk, low-benefit insurance policies without engaging in deception. [4] § 626.611(5), Fla. Stat. (1985). [5] § 626.611(7), Fla. Stat. (1985). [6] § 626.611(9), Fla....

violations of section 626.611(5) (willful deception with regard to an insurance policy), section 626.611(7) (lack

...iolated various provisions of the insurance code and suspended her license to sell insurance for a period of nine months. We affirm the order, except for the length of the suspension. The Department concedes that its finding that Ms. Faloon violated section 626.611(9), Florida Statutes (2001), was error. Pursuant to the Department’s rules, without the violation of section 626.611(9), the proper length of Ms....

after a hearing under the authority of Fla.Stat. § 626.611, F.S.A. The correspondence sought herein appears

provisions of the insurance code, particularly Section 626.611(10), by receiving some $55,000 consisting of

...il after the misconduct here shown. Later, in the same section of the order, the hearing officer states as follows: Clearly, Respondent did not personally commit the misconduct alleged and he cannot, therefore, be disciplined under the provisions of section 626.611....

...The complaint further alleged that the appellant was sentenced therefor to a term of incarceration of five years. Consequently, the complaint sought revocation or lesser penalties on the following statutory grounds: (a) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. (Section 626.611(7), Florida Statutes) (b) Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases. (Section 626.611(14), Florida Statutes) (c) Having been found guilt of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases....

...e hearing officer found the Department had failed to establish that the federal crimes for which the appellant was convicted were felonies and that the Department had therefore failed to establish grounds for revocation or other penalty under either Section 626.611(14) 1 or Section 626.621(8), 2 Florida Statutes....

...The Department did not object to this finding, and has not raised any issue with respect thereto on appeal. With respect to the remaining ground asserted in the administrative complaint, i.e. appellant’s “demonstrated lack of fitness or trustworthiness to engage in the business of insurance” (Section 626.611(7)), the recommended order contained the following findings of fact: (11) The record is clear that Respondent had no knowledge of the schemes, was following orders of his superiors, and received no money, property, or other consideration for his participation in the schemes....

...The hearing officer concluded in his conclusions of law section: Petitioner also alleges that the commission of the offenses by the Respondent demonstrates his lack of fitness or trustworthiness to engage in the business of insurance and thereby grounds for disciplinary action under Section 626.611(7), Florida Statutes....

...There the defendant, Natelson, a licensed insurance agent, was convicted of a federal drug offense. The Department of Insurance proceeded against his license, charging him by administrative complaint with: (1) demonstrating lack of fitness or untrustworthiness to engage in the business of insurance (Section 626.611(7)); (2) having pled guilty, in this or any state, to a felony involving moral turpitude (Section 626.611(14)); and (3) having pled guilty, in this or any state, to a felony (Section 626.621(8))....

...Department’s findings, rejected the hearing officer’s conclusions of law and revoked Natelson’s license. *169 Inasmuch as the Court found the Department’s revocation order sustainable under the first ground (demonstrated lack of fitness — Section 626.611(7)), the Court did not reach the issues raised by the other two grounds under Sections 626.611(14) and 626.621(8)....

...t’s construction of the term “lack of fitness or trustworthiness to engage in the business of insurance” as including the conviction of the federal crime with which Natelson was charged was well within the range of permissible constructions of Section 626.611(7)....

...ved in the criminal case. Such holding, however, does not preclude the legislature from promulgating a licensing statute which authorizes revocation for “demonstrated lack of fitness or untrust-worthiness to engage in the business of insurance” (Section 626.611(7)) and to construe such terminology as encompassing the conviction of the subject federal crimes....

...the instant case to construe such terminology as encompassing the convictions of the subject federal crimes. We have examined the other issue raised by appellant and find the same to be without merit. AFFIRMED. SMITH, C.J., and BOOTH, J., concur. . Section 626.611(14), quoted as follows, is one of several grounds for compulsory refusal, suspension, or revocation of an insurance agent’s license: (14) Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this...

...But a penalty within the permissible range of statutory law, even if greater than the recommended penalty, is not subject to this Court’s review. Hartnett v. Department of Insurance, 406 So.2d 1180 (Fla. 1st DCA 1981). The penalty imposed was within the permissible range of statutory law. Section 626.611, Florida Statutes (1981); Section 626.621, Florida Statutes (1981)....

...We remand this case to the insurance commissioner to reconsider the issue of penalty in light of this opinion. Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith. . The recommended order was adopted in its entirety by the Department of Insurance in its final order. . Section 626.611(10), Florida Statutes (1993), prohibits misappropriation but does not define the term....

...The complaint further alleged that the viatical settlements were securities and that neither Mutual Benefits nor McCloskey was registered to sell securities in Florida. Following a formal hearing, an administrative law judge (“ALJ”) issued a recommended order concluding that McCloskey violated section 626.611(16), Florida Statutes, 2 by selling an unregistered security that was required to be registered pursuant to chapter 517. Consequently, the ALJ proposed a two-month suspension for each of the three violations. After both parties filed exceptions, the Department adopted the recommended order and, in addition, found that McCloskey violated section 626.611(7)....

...1st DCA 1977). Construing the statute in favor of McCloskey, based on the law in effect at the time the viatical settlements were sold, McCloskey did not sell unregistered securities that were required to be registered pursuant to chapter 517, in violation of section 626.611(16). Consequently, McCloskey did not demonstrate a lack of fitness or trustworthiness to engage in the business of insurance in violation of section 626.611(7)....

...s and administrative fees paid by the investor. The viatical settlement company receives a fee or commission depending upon the structure of the transaction. Accelerated Benefits Corp. v. Dep’t of Ins., 813 So.2d 117, 118-19 (Fla. 1st DCA 2002). . Section 626.611, Florida Statutes (2003), provides: The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, adjuster, customer representative, ser...

...such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist: [[Image here]] (16) Sale of an unregistered security that was required to be registered, pursuant to chapter 517. . Section 626.611(7), Florida Statutes (2003), provides for the suspension of an insurance agent's license based on "[djemonstrated lack of fitness or trustworthiness to engage in the business of insurance.” ....

...Upon the Department’s disciplinary action against Appellant in a separate proceeding, Appellant’s license was suspended by the Department on October 25, 2011. The basis for the suspension was Appellant’s plea of nolo contendere to a felony 1 which the Department determined involved “moral turpitude.” See § 626.611(14), Fla....

...m death benefits. The death benefit proceeds were used to acquire the new annuity. The Department charged in count one that Mr. Robert had *683 acted without authorization from this client and, in doing so, had engaged in acts proscribed by sections 626.611, .621, .9521, and .9541, and administrative rule 4-215.230....

...Robert’s case, multiple grounds for suspension exist, only the violation producing the highest penalty may be considered as the penalty for that count. See Fla. Admin. Code R. 4 — 231.040(l)(a). Among the various grounds for each count, Mr. Robert’s violation of section 626.611(9) carried the highest penalty, a nine-month license suspension....

...Neither the ALJ nor the Department found any aggravating or mitigating circumstances, so, ultimately, the eighteen-month total penalty became the final penalty. See Fla. Admin. Code R. 4-231.040(3). The ALJ found that in each count Mr. Robert violated section 626.611(9) which proscribes “[fraudulent or dishonest practices in the conduct of business under the *684 license or appointment.” This section has been interpreted to require more than a solitary lapse or single act of misconduct. In Werner v. State, Department of Insurance, 689 So.2d 1211 (Fla. 1st DCA 1997), the court strictly construed section 626.611(9) because suspension of a professional or business license is penal in nature....

...No other fraudulent or dishonest practice was found in that transaction or in any prior complaint. The court concluded that a single act of misconduct did not meet the statutory requirement of multiple practices; thus, the Department had not established a violation of section 626.611(9)....

...sconduct and should be punished as such. Therefore, the Department cannot impose a nine-month suspension for the solitary lapse in professional conduct giving rise to count one. The violation proven in count one with the next highest penalty was for section 626.611(5), which prohibits “[w]illful 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.” This violation carries a penalty of six months’ license suspension. It is Mr. Robert’s second transaction, in 2001, which clearly constituted the multiple practices for the .purpose of section 626.611(9), and the nine-month penalty for count two was, thus, appropriately imposed....

...Affirmed in part; reversed in part; and remanded. ALTENBERND, C.J., and COVINGTON, J., concur. . Florida Administrative Code Rule 4-231.040, Calculating Penalty, provides: (1)Penalty Per Count. (a) The Department is authorized to find that multiple grounds exist under sections 626.611 and 626.621, Florida Statutes, for disciplinary action against the licensee based upon a single count in an administrative complaint based upon a single act of misconduct by a licensee....

...The final penalty which will be imposed against a licensee under these rules shall be the total penalty, as adjusted to take into consideration any aggravating or mitigating factors, provided however the Department shall convert the total penalty to an administrative fine and probation in the absence of a violation of section 626.611, Florida Statutes, if warranted upon the Department's consideration of the factors set forth in rule subsection 4-231.160(1).

...withdrawing funds from any financial institution account used for Florida-related insurance business or transactions (i.e., subparagraphs (c)(2) and (c)(3) of the suspension order). By including these two subparagraphs in the order, the department exceeded its suspension authority under section 626.611(2), Florida Statutes, which requires the department only to “suspend a license” if it receives an information or indictment charging the licensee with a statutorily enumerated felony; that suspension itself then having the legal...

...withdrawing funds from any financial institution account used for Florida-related insurance business or transactions (i.e., subparagraphs (c)(2) and (c)(3) of the suspension order). By including these two subparagraphs in the order, the department exceeded its suspension authority under section 626.611(2), Florida Statutes, which requires the department only to “suspend a license” if it receives an information or indictment charging the licensee with a statutorily enumerated felony; that suspension itself then having the legal...

...ell. The Department accepted the hearing officer’s findings of fact, but rejected the result, deciding instead that Russell’s actions constituted conversion and a failure to return funds belonging to an insurer, in violation of sections 626.561, 626.611 and 626.621, Florida Statutes (1993)....

...The Department concedes that neither the findings of the hearing officer, nor the record, would sustain a conclusion that Russell knew Henderson was illegally diverting funds to him at the time he received them. It contends, however, that Russell’s refusal to return the funds constituted a violation of sections 626.561(1), 626.611(10) and 626.621(4) and warranted suspension of his insurance license. Section 626.561(1) 1 provides criminal penalties for an agent’s refusal to return funds belonging to an insurer; section 626.611(10) 2 lists grounds for compulsory suspension of an agent’s license for unlawful withholding of moneys belonging to insurers....

...In order for the Department to establish that an agent violated the above-mentioned statutes, it must show that the funds the agent unlawfully withheld or refused to pay over were funds belonging to the insurer. We note that under sections 626.561(1) and 626.611(10), the Department must establish that the agent acted willfully, but that section 626.621(4) does not carry a requirement of willfulness....

...thereto.” § 626.561(1), Fla.Stat. (1993). . "Misappropriation, conversion, or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license or appointment.” § 626.611(10), Fla.Stat....

...On June 7, 2011, DFS filed a three-count administrative complaint, alleging, among other things, that McCloskey sold unregistered securities, which DFS believed were required to be registered under chapter 517, Florida Statutes (2003), namely, viati-cáis, without a securities license, in violation of section 626.611(16), Florida Statutes (2003)....

...Specifically, we held: Construing the statute in favor of McCloskey, based on the law in effect at the time the viatical settlements were sold, McCloskey did not sell unregistered securities that were required to be registered pursuant to chapter 517, in violation of section 626.611(16). Consequently, McCloskey did not demonstrate a lack of fitness or trustworthiness to engage in the business of insurance in violation of section 626.611(7)....

...Weingrad, 164 So.3d 1208, 1213 (Fla.2015) (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995)). When viaticáis were redefined as securities on July 1, 2005, see Ch. 2005-237, §§ 1, 11, 14, Laws of Fla. (codified at §§ 517.021(21)(w), 626.611(17), 626.9911(11), Fla. Stat. (2005)), a securities license was required to sell them and they had to be registered as securities, meaning that securities law penalties now also applied. §§ 517.07, 517.12, 626.611(16), (17), Fla....

...wingly collected as a premium a sum in excess of the charge applicable to such insurance (F.S. 626.-970[2]); (b) He collected a service fee (F.S. 626.970 [2]); (c) He willfully used his license to circumvent the requirements of the insurance code (F.S. 626.611 [4]) ; (d) He demonstrated lack of fitness or trustworthiness to engage in the business of insurance (F.S. 626.611 [7]); (e) He committed fraudulent or dishonest practices (F.S. 626.611 [9]) ; (f) He misappropriated money belonging to others in the conduct of business under his license (F.S. 626.611 [10]) ; (g) He violated a provision of the insurance code in the dealing under his license (F.S. 626.621 [2]); and (h) He failed to properly account for funds belonging to insurers or others (F.S. 626.561). *796 Count II: In explaining to a customer and charging a contingency fee of $10.-50, Drew violated Florida Statutes 627.-403, 626.611(4), 626.611 (7), 626.611(9), 626.611(10), 626.621(2) and 626.561....

...Drew to refund the contingency fee to *797 each customer from whom the fee was collected, and paragraph three (d), requiring Dr. Drew to cease and desist from violating insurance rules, regulations and laws, are affirmed. MILLS and SMITH, JJ., concur. . See Florida Statutes 626.611(4), (7), (9) ; 626.621(2); and 626.970(2)....