CopyCited 10 times | Published | Florida 1st District Court of Appeal
...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....
...alty 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....
...t, solicitor, or adjuster, ... 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: ... Section 626.621 states: The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster, ......
...In most of the charges sustained against Brewer, the Insurance Commissioner found a violation of Section
626.561(1) which deals with an agent's reporting and accounting for a client's funds. In each instance in which violation of this statute was found, the insurance commissioner also found a violation of Section
626.621(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....
...e, 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....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1996 Fla. App. LEXIS 6219, 1996 WL 316537
...Among the many issues he raises, Whitaker contends that the Department erred 1) in finding him guilty of failure to insure under section
626.9541(1)(x)4., Florida Statutes (Supp.1992), and 2) in finding that his conduct was detrimental to the public interest in violation of section
626.621(6), Florida Statutes (Supp.1992)....
...The Insurance Commissioner filed a nine count administrative complaint charging Whitaker with 140 violations of Chapter 626, Florida Statutes. The hearing officer assigned to the case found eight violations of section
626.9541(1)(x)4., and eight violations of section
626.621(6)....
...clusions with exceptions. The final order found four violations of section
626.9541(1)(x)4. (refusal to insure), three violations of section
626.9541(1)(z)3. (lack of informed consent for sale of ancillary product), eight violations each of sections
626.621(6)(unfair methods of competition or unfair or deceptive acts or practices),
626.611(7) (lack of fitness/trustworthiness) and
626.611(9) (fraudulent or dishonest practices under license) and fifteen violations of section
626.9521 (unfair method of competition or unfair and deceptive act or practice). The Commissioner rejected the 13 month suspension in favor of revocation of appellant's insurance licenses. The purported violations of section
626.9541(1)(x)4. will not withstand our construction of the statute. The violations of section
626.621(6) must also fall because that statute is unconstitutionally vague....
...ium financing upon purchase of an ancillary product is a prohibited act. See Yes Dear, Inc. v. Department of Revenue,
523 So.2d 1235 (Fla. 1st DCA 1988). The violations of section
626.9541(1)(x)4. must be reversed. Appellant also argues that because section
626.621(6) is unconstitutionally vague, the alleged violations under the statute may not stand. The enactment under review provides:
626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, adjuster's, customer representative's, service representative's managing general agent's, or claims investigator's license or appointment.The department m...
...or practices, as prohibited under part X of this chapter, or having otherwise shown himself to be a source of injury or loss to the public or detrimental to the public interest. The hearing officer and the Commissioner found that appellant violated section 626.621(6) by "showing himself to be `detrimental to the public interest.'" We must determine whether the phrase "detrimental to the public interest" is too vague to constitute notice of what acts it purports to prohibit....
...ess). Here, the phrase "detrimental to the public interest" is subject to many interpretations. Moreover, the meaning of "public interest" is left to the fancy of the enforcing agency. We hold, therefore, that the language following the last "or" in section
626.621(6), Florida Statutes (Supp.1992), offends due process. We affirm the Commissioner's findings as to the other statutory violations except to the extent that some of those violations are based on violations of sections
626.9541(1)(x)4. or
626.621(6)....
...On remand the Commissioner must reconsider the penalty and should take into account section
626.641(1)(a), Florida Statutes (a suspension period shall not exceed two years), and Rule 4-231.040, Florida Administrative Code ("The Department is authorized to find multiple grounds exist under sections
626.611 and
626.621 for disciplinary actions against the licensee based upon a single count in an administrative complaint based upon a single act of misconduct by a licensee....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1991 WL 163060
...ustworthiness 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 injury to the public, (
626.621(6) and
626.9521: knowingly making an untrue, deceptive or misleading advertisement, (626.9541(1)(b) and (1)(e)1; and improperly comparing his policies with those of another company, (Rule 4-4.003(2) F.A.C.)....
...d to both the Laws and Ms. Hendrix by the Respondent, assisted by Mr. Chappuis, were, in many particulars, largely duplicative of their existing coverage. This constitutes a clear violation of Rule 4-46.003(2), F.A.C., and as such, is a violation of Section 626.621(3)....
...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. Others fall under the purview of Section
626.621, for which the imposition of suspension or revocation is within the discretion of the department....
...t 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....
...n 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. [3] Section
626.621 sets forth grounds of misconduct for which the Department has discretion 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....
...uilty 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. Section
626.681 authorizes the Department to impose an administrative fine in lieu of discretionary suspension or revocation for violation of section
626.621: (1) Except as to insurance agencies, if the department finds that one or more grounds exist for the suspension, revocation, or refusal to renew or continue any license or permit issued under this chapter, the department may, in its d...
...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....
...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)....
...This conclusion is further reinforced by the fact that there is no ostensible need for a reference to section
626.9521, thence to section
627.381, thence to section
624.4211, to find statutory authority for penalizing an offending insurance agent's violation of the unfair trade practices prohibited in Part X. Section
626.621(6) explicitly refers to an insurance agent's violation of Part X of chapter 626, and the applicable penalties for an insurance agent's violation thereof is *1017 the discretionary suspension or revocation provided in section
626.621 as previously discussed....
...* * (5) 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. (Emphasis added). [4] Section 626.621 states in part material to this case: The department may in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, ......
CopyPublished | Florida 1st District Court of Appeal
...Kneip, Chief of Staff.
May 3, 2018
B.L. THOMAS, C.J.
Appellant Antony Lee Turbeville challenges a Final Order of
the Department of Financial Services revoking Appellant’s
insurance license, following the Department’s finding that
Appellant violated section 626.621(13), Florida Statutes (2015).
Appellant argues that: (1) the language of section 626.621(13),
Florida Statutes, and the penalty guidelines of Florida
Administrative Code Rule 69B-231.090(13) (2015) are ambiguous
and should be construed in his favor; (2) that the Department’s
application of rule 69B-231.090(13) constitutes an ex post facto
violation; and (3) that the Department’s application of the section
626.621(13), Florida Statutes, to licensees of the Financial
Industry Regulatory Authority (“FINRA”) violates a licensee’s
constitutional right to remain silent.
Facts
Appellant entered the securitie...
...name to the Financial Industry Regulatory Authority (FINRA).
Eppinger v. Sealy,
25 So. 3d 69, 72 n.1 (Fla. 5th DCA 2009).
2
On April 19, 2016, the Department filed a one-count
complaint against Appellant, alleging a violation of section
626.621(13), Florida Statutes....
...The
Department’s hearing officer filed his Written Report and
Recommended Order, stating the following conclusions: (1) the
National Adjudicatory Council’s decision of April 16, 2015
constituted final disciplinary action by FINRA, and final agency
action under state law, pursuant to section 626.621(13), Florida
Statutes; (2) Appellant violated section 626.621(13), Florida
Statutes; and (3) under Florida Administrative Code Rule 69B-
231.090(13), the penalty to be imposed is the highest identical
penalty imposed by a national securities association upon which
the statutory violation is based, which was the revocation of
Appellant’s insurance license. The Department issued its final
order adopting the hearing officer’s findings of fact, conclusions of
law, and recommendation, and the Department revoked
Appellant’s license.
Analysis
1. Is the language of section 626.621(13), Florida Statutes
(2015), or Florida Administrative Code Rule 69B-231.090(13)
ambiguous?
We review issues of statutory interpretation de novo.
Sullivan v....
...language for legislative intent or resort to rules of statutory
construction to ascertain intent.’” Borden v. East-European Ins.
Co.,
921 So. 2d 587, 595 (Fla. 2006) (quoting Daniels v. Fla. Dep’t
of Health,
898 So. 2d 61, 64 (Fla. 2005)).
Section
626.621, Florida Statutes, as it read at all times
pertinent here, 2 provided:
The department may, in its discretion ....
...or other authority to conduct business subject
to any decision . . . by any . . . national securities . . .
association involving . . . a violation of any rule or
regulation of any national securities . . . association.
2 In 2017, the legislature amended section 626.621, Florida
Statutes. § 626.621, Fla. Stat. (2015), amended by ch. 2017-175,
§ 27, at 23-24, Laws of Fla. The pre-2017 language of section
626.621(13) still exists, but now as section 626.621(12). All
references herein to section 626.621(13) refer to the statute as it
read in 2015, when FINRA affirmed the sanctions against
Appellant.
4
Florida Administrative Code Rule 69B-231.090 describes
specific penalties for violations of section 626.621, Florida
Statutes:
If it is found that the licensee has violated any of the
following subsections of Section 626.621, F.S., for which
. . . revocation of license(s) . . . is discretionary, the
following stated penalty shall apply:
....
(13) Section 626.621(13), F.S....
...A suspension with a duration of less than
24 months, shall result in a suspension of equal
length.
Appellant argues that the statute and rule are ambiguous,
because neither provide guidance for what date should be used to
compute penalties under section 626.621(13), Florida Statutes, or
more specifically, whether the Extended Hearing Panel’s or the
National Adjudicatory Council’s decisions constitute “final agency
action” as described in the statute....
...on pursuant to
Rule 9349 . . . .” FINRA Rule 9311(b).
Thus, the Extended Hearing Panel’s decision is final unless
appealed to the National Adjudicatory Council. If appealed to the
Council, the decision is stayed.
Appellant argues that section 626.621(13), Florida Statutes,
is ambiguous, because it does not specify whether the decision of
the Extended Hearing Panel or of the National Adjudicatory
Council should be used for penalty calculation....
...d, it is stayed
until the National Adjudicatory Council makes a decision, which
then becomes FINRA’s final action. At no time during the
procedure do two countervailing decisions co-exist
simultaneously; thus, there is no need for section 626.621(13) to
specify which decision should be relied upon.
Appellant also argues that section 626.621(13), Florida
Statutes, is ambiguous, because it applies to “any decision ....
...securities association.” And because FINRA made a finding that
the applicant had violated state securities laws, the State was
permitted to rely on the FINRA award to deny the applicant’s
registration application. Id.
Here, the language of section
626.621(13), Florida Statutes,
mirrors almost verbatim the language of section
517.161(1)(m),
Florida Statutes, analyzed in Wojnowski....
...applicant had been “the subject of any decision” by an association
such as FINRA.
98 So. 3d at 191 (emphasis in original). This
court found the phrase “any decision” to mean precisely that: any
decision by an association such as FINRA. Id. The phrase “any
decision” in section
626.621(13), Florida Statutes, is not
ambiguous; it means that the agency is authorized to revoke a
license, if the licensee has been the subject to any decision by a
national securities association such as FINRA....
...2016) (holding
that a statute allowing mayoral candidate to be disqualified if a
bank returned his qualifying fee check for “any reason” was
unambiguous, as “any reason” included reasons which were not
the fault of the candidate, but finding statute unconstitutional).
Appellant additionally argues that section 626.621(13),
Florida Statutes, is ambiguous, because both a licensee and
FINRA are allowed to appeal the decision of the Extended
7
Hearing Panel. Again, section 626.621(13), Florida Statutes,
allows the Department to revoke a license, if the licensee has
been the subject of “any decision” by an association such as
FINRA....
...1996).
The ex post facto prohibition applies to criminal or civil penal
statutes. Lescher v. Fla. Dep’t of Highway Safety & Motor
Vehicles,
985 So. 2d 1078, 1081 (Fla. 2008). Statutes providing
for the revocation or suspension of a license to practice are
deemed penal in nature. Elmariah,
574 So. 2d at 165.
Section
626.621(13), Florida Statutes, authorizes the
Department to revoke a licensee’s license, if the licensee has had
his or her authority to conduct business subjected to any decision
of a national securities association. FINRA is such an
association. Wojnowski,
98 So. 3d at 191. Appellant argues that
the decision of the Extended Hearing Panel operated as FINRA’s
final action, and he therefore was subject to FINRA’s decision,
and by extension violated section
626.621(13), Florida Statutes,
on May 31, 2012, twenty-two months before the promulgation of
Florida Administrative Code Rule 69B-231.090(13)....
...Department’s revocation of his license is an impermissible ex post
facto application.
The Department argues that FINRA’s final action occurred
on April 15, 2016, when the National Adjudicatory Council issued
its decision; therefore, Appellant violated section 626.621(13),
8
Florida Statutes, after the promulgation of Florida
Administrative Code Rule 69B-231.090(13)....
...2014); de Morlaes,
998 So. 2d at 663. Therefore, a decision by the Extended Hearing
Panel is postponed, halted, or suspended when an appeal is
initiated. Such a suspended judgment therefore would not fall
under the “any decision” definition in section
626.621(13), Florida
Statutes, because it is stayed until “a contingency occurs”—in
this case, the resolution by the National Adjudicatory Council.
Id.
Therefore, because FINRA’s action was not final until
April 16, 2015, when it was resolved by the National
Adjudicatory Council, the Department’s application of Florida
Administrative Code Rule 69B-231.090(13) (adopted March 24,
2014) to Appellant’s violation of section
626.621(13), Florida
Statutes, was not an ex post facto application, as the violation
occurred after the promulgation of the rule, based on the
Council’s affirmance of the Extended Hearing Panel’s decision.
11
3....
...“Because license revocation or suspension proceedings are
penal in nature, the fifth amendment right to remain silent
applies.” McDonald v. Dep’t of Prof’l Regulation,
582 So. 2d 660,
662 n.2 (Fla. 1st DCA 1991). Appellant argues that even though
section
626.621(13), Florida Statutes, does not expressly subject
him to discipline for refusal to testify, it allows the discipline
indirectly, thus violating the Fifth Amendment to the United
States Constitution and Article I, section 9 of the Florida
Constitution.
FINRA Rule 8210 requires members to submit sworn
testimony in response to FINRA inquiries, and a failure to
respond may result in sanctions. Appellant argues that because
section
626.621(13), Florida Statutes, allows the Department to
revoke a licensee’s license if he or she has been subject to a
decision by FINRA, a licensee can indirectly have his or her
license revoked by failing to respond to a FINRA Rule 8210
request....
... against himself within the meaning of the Fifth Amendment to
the United States Constitution and Article I, section 9 of the
Florida Constitution. Id. at 491-92. Vining is distinguishable,
however, because there, testimony was compelled by state action.
By contrast, section 626.621(13), Florida Statutes, does not
subject licensees or applicants to discipline for refusal to testify,
but allows the Department to revoke a license if the licensee’s
authority to conduct business was subject to a decision by a non-...
...United States
Constitution and Article I, section 9 of the Florida Constitution is
not activated. Therefore, the Department’s reliance on FINRA’s
decision in punishing Appellant under Florida Administrative
Code Rule 69B-231.090(13), pursuant to section 626.621(13),
Florida Statutes, is not unconstitutional.
Conclusion
FINRA rules and federal court rulings state that if the
Extended Hearing Panel’s decision is appealed, the decision by
the National Adjudicatory Council is FINRA’s final action. Thus,
the language of section 626.621(13), Florida Statutes, is not
ambiguous, and the Department’s application of the statute and
Florida Administrative Code Rule 69B-231.090(13) is not an
ex post facto application....
