Pou v. Department of Insurance & Treasurer

District Court of Appeal of Florida

Pou v. Department of Insurance & Treasurer

707 So. 2d 941, 1998 Fla. App. LEXIS 2680, 1998 WL 117301

CourtDistrict Court of Appeal of Florida

DecidedMarch 18, 1998

DocketNo. 97-2055

StatusPublished

Cited by1 cases

This text of 707 So. 2d 941 (Pou v. Department of Insurance & Treasurer) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pou v. Department of Insurance & Treasurer, 707 So. 2d 941, 1998 Fla. App. LEXIS 2680, 1998 WL 117301 (Fla. Ct. App. 1998).

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Opinion

PER CURIAM.

Maria Amelia Pou appeals an order of the Department of Insurance temporarily suspending her license. We affirm in part and reverse in part.

As this is a licensing disciplinary procedure, the burden on the Department at the administrative hearing was to establish the allegations in the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292, 294 (Fla.1987); Hoover v. Agency for Health Care Admin., 676 So.2d 1380, 1382 (Fla. 3d DCA 1996).

Our standard of review is whether there was competent substantial evidence to support the findings of the administrative law judge. See § 120.68(6)(b), Fla. Stat.

After consideration of the record and the contentions of the parties, we conclude that the evidence is insufficient to support the finding that the appellant insurance agent willfully misrepresented the insurance premium to the customer, as opposed to simply making an error. Since the element of willfulness is not supported by the record, we reverse with respect to paragraph 56 of the recommended order.¹

We also reverse so much of paragraph 57 as held that the insurance agent willfully misappropriated an insurance premium amount of $997 which was paid by the agency customer. Here, the funds remained at all times in the agency’s escrow account. At no time were the funds withdrawn, much less applied for some improper purpose. The finding of willfid misappropriation is reversed.²

[942]*942We affirm the remainder of paragraph 57, which found that (a) funds were unlawfully withheld, and (b) the insurance agent failed to refund the insureds’ unearned premium within a reasonable time after the insurance was cancelled. We also affirm paragraph 55. 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.

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PER CURIAM.

Maria Amelia Pou appeals an order of the Department of Insurance temporarily suspending her license. We affirm in part and reverse in part.

As this is a licensing disciplinary procedure, the burden on the Department at the administrative hearing was to establish the allegations in the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292, 294 (Fla.1987); Hoover v. Agency for Health Care Admin., 676 So.2d 1380, 1382 (Fla. 3d DCA 1996).

Our standard of review is whether there was competent substantial evidence to support the findings of the administrative law judge. See § 120.68(6)(b), Fla. Stat.

After consideration of the record and the contentions of the parties, we conclude that the evidence is insufficient to support the finding that the appellant insurance agent willfully misrepresented the insurance premium to the customer, as opposed to simply making an error. Since the element of willfulness is not supported by the record, we reverse with respect to paragraph 56 of the recommended order.¹

We also reverse so much of paragraph 57 as held that the insurance agent willfully misappropriated an insurance premium amount of $997 which was paid by the agency customer. Here, the funds remained at all times in the agency’s escrow account. At no time were the funds withdrawn, much less applied for some improper purpose. The finding of willfid misappropriation is reversed.²

[942]*942We affirm the remainder of paragraph 57, which found that (a) funds were unlawfully withheld, and (b) the insurance agent failed to refund the insureds’ unearned premium within a reasonable time after the insurance was cancelled. We also affirm paragraph 55. 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.

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707 So. 2d 941, 1998 Fla. App. LEXIS 2680, 1998 WL 117301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pou-v-department-of-insurance-treasurer-fladistctapp-1998.

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