Ganter v. Department of Insurance 620 So. 2d 202

WOLF, Judge.

This is an appeal from a final order of the Department of Insurance (department) which suspended for six months the insurance license of appellant, John W. Ganter. Appellant asserts that the department improperly suspended his license for the misconduct of an unlicensed corporate employee where there was insufficient evidence that appellant knew or should have known of the employee’s misconduct. The department asserts that there was no requirement that it prove appellant had knowledge of his employee’s misconduct under section 626.734, Florida Statutes (1989), as it existed at the time of the alleged misconduct. Appellee also asserts that there were sufficient findings of fact and evidence in the record to support the suspension based on appellant’s implied knowledge of the alleged misconduct. We find that the department was required to prove that appellant knew or should have known of the misconduct of his employee under section 626.724 as it existed at the time of the misconduct,1 but that the record contains clear and convincing evidence to support the hearing officer’s determination of appellant’s knowledge. We affirm.

Appellant was the president, director, and registered agent of Devor Auto Insurance of Brandon, Inc. (Devor). At the times in issue, the appellant employed Jay Schetina, not a licensed insurance agent in Florida, to work as a salesman at the Brandon office. Mr. Schetina worked directly under the supervision and control of the appellant and was in charge of the Brandon office when the appellant, who worked four days a week at the other office he owned in Cape Coral, Florida, was not present.

In January and February of 1989, the four consumers whose underlying insurance transactions resulted in the discipline of appellant’s licenses, dealt directly with Mr. Schetina. The hearing officer found that Schetina in dealing with these consumers misrepresented the terms and conditions of certain insurance policies by causing these consumers to purchase auto service contracts without their authorization or consent. An employee of the agency *204who purchased Devor2 testified at hearing that at the time of the purchase (which occurred subsequent to the transactions with those consumers) numerous auto service contracts were found in the Devor files, and the copies of those contracts which were to be sent to the consumers were still attached.

The department proceeded against appellant based upon the procurement of the unauthorized auto service contracts. An administrative hearing was held on April 27, 1991. Mr. Ganter testified at the final hearing that he had no personal contact with these consumers regarding the purchase of their insurance coverages, and that he had no knowledge that the auto service contract applications were not signed by some of these consumers. Mr. Ganter also testified that it was agency policy to explain the auto service contract options to consumers, and that he never instructed Jay Schetina or any employees at Devor to sign other people’s names to an auto service contract.

Within the conclusion of the law section of the recommended order, the hearing officer stated the following:

The evidence clearly establishes that Respondent did not, personally or directly, commit any of the misconduct which is charged here. He was, however, in charge. Mr. Schetina worked for him and was under his supervision, and as is aptly pointed out by counsel for Petitioner, a simple review of business written and a follow-up of client files by the Respondent would have disclosed Scheti-na’s improprieties and afforded an opportunity to correct them. There is no indication that at any time during the period in issue, did Respondent make even the slightest effort to properly oversee his employees. In fact, the Department took action against him for that very failure even though the action, in the form of a Consent Order, did not come about until 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. However, his laissez faire management approach to the running of Devor, and his almost cavalier approach to supervising the nonlicensed individuals he had running the operation in his absence, make him clearly a candidate for action under section 626.621 if he can be found to fall within the purview of that portion of the statute which holds the principal liable if he should have known [emphasis supplied] what his employees were doing. Without doubt he does.

These purported conclusions of law actually contain many findings of fact concerning appellant’s constructive knowledge of his employee’s negligence.3 These findings are supported by the evidence. Evidence presented at the hearing showed appellant spent four days a week at his Cape Coral office and did not employ a licensed agent to supervise personnel in the Brandon office. There was also evidence that a review of the insurance files would reveal the misconduct involved. No evidence was presented, however, concerning the appropriate minimum standards of conduct either by adopted rule, communicated agency policy, or expert testimony against which the licensee’s misconduct could be judged. While appellant was cited and later entered into a consent order with the department in regard to improper supervi*205sion, these actions occurred after the improprieties on which the suspension was based.

Section 626.734, Florida Statutes (1989), states

Any general lines insurance agency who is an officer, director, stockholder, or employee on an incorporated general lines insurance agency shall remain personally and fully liable and accountable for any wrongful acts, misconduct, or violations or any provisions of this code committed by such licensee or by any person under his direct supervision and control while acting on behalf of the corporation.

In Hartnett v. Department of Ins., 432 So.2d 155 (Fla. 3d DCA 1983), rev. denied, 440 So.2d 352 (Fla.1983), the court upheld the statute against constitutional attack and determined that an insurance agent could be liable for actions of his employee notwithstanding lack of knowledge.

In Pie N’ Save Central Florida v. Department of Business Regulation, Div. of Alcoholic Beverages and Tobacco, 601 So.2d 245 (Fla. 1st DCA 1992), this court recognized the distinction between imposing liability under the theory of respondeat superior and revoking a party’s right to conduct business. In Pic N’ Save, supra, the court held that while the governing statute itself did not require proof of licensee’s knowledge that in order to suspend a party’s liquor license, the department must establish that the licensee knew or should have known of the misconduct of its employee. The court went on to acknowledge that this construction of the statute is consistent with the idea “that one’s license to engage in an occupation is not to be taken away except for misconduct personal to the licensee.” Pic N’ Save, supra at 250. There is no rational basis for not imposing the same standard for revocation of an insurance license.4 The closer issue is whether this evidence and the hearing officer’s subsequent findings are sufficient to justify disciplinary action against the appellant based upon implied knowledge. In Pic N’ Save, supra at 249, the court stated that a business license is subject to suspension or revocation only upon clear and convincing evidence of the alleged violation. Ferris v. Turlington, 510 So.2d 292 (Fla.1987), and Evans Packing Co. v. Department of Agriculture, 550 So.2d 112 (Fla. 1st DCA 1989). Only when the employees act in a “persistent and practiced manner” so as to justify being described as “flagrant,” is “the factual inference that the violations were either fostered, condoned, or negligently overlooked by the licensee” justified. Id. 601 So.2d at 253-254.

The imposition of personal responsibility on the licensee for the illegal sales by its employees requires proof of minimum standards of conduct, either by adopted rules, communicated agency policy or expert testimony against which the licensee’s alleged misconduct can be judged.

Pic N’ Save, supra, 601 So.2d at 256. The court went on, however, to say that “a licensee may not remove himself from the responsibility by not being present on the premises by claiming ignorance of repeated violations.”

While there is a lack of evidence of minimum standards of conduct in the instant case, the facts in this case are markedly different than those concerning the alleged violation in Pic N’ Save.

In the instant case, unlike Pic N’ Save, there is no evidence that the appellant took any measures to attempt to discourage violations. In fact, the evidence demonstrated a complete lack of supervision. In addition, the nature of the violations were such that a reasonable review of the files would have revealed the misconduct.5 There is also evidence which demonstrates that the violations remained unreported or undetected for over nine months after they occurred. Under these circum*206stances, there was clear and convincing evidence to support the hearing officer’s determination that the agent knew or should have known of the misconduct of his employees.

Affirmed.

KAHN, J., concurring with written opinion.

ZEHMER, J., dissenting with written opinion.

KAHN, Judge,

concurring.

I concur in affirming the suspension of Mr. Ganter’s insurance license. This case presents more, however, than merely a complete lack of supervision by Mr. Ganter of his employees. Mr. Ganter, in violation of Florida law, methodically and regularly allowed an employee of his agency to utilize his general lines agent license for the purpose of transacting business when the employee was in fact not licensed in Florida to transact such business. Mr. Ganter further allowed his agency to regularly operate without an active, full-time agent in charge. During Mr. Ganter’s frequent absences, the employee, Schetina, sold numerous auto service contracts to unknowing insurance customers, and utilized premium financing arrangements to further obscure these transactions. In my view, an agent such as Mr. Ganter, having willfully violated the law by leaving an unauthorized employee in charge of his insurance business, should be estopped to deny his implied knowledge of the employee’s transgressions.

Mr. Ganter, relying upon Bach v. Florida State of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979), argues that he had no duty to make inquiries as to whether his employee, Schetina, had properly carried out his responsibilities. Ganter further argues, again relying upon Bach, that unless he was fully informed of and ratified Seheti-na’s actions, his license may not be jeopardized. In effect, Mr. Ganter has argued to this court that because he violated the law and left Schetina to mind the store, he (Ganter) is effectively shielded from allegations based upon Schetina’s misconduct, absent direct proof that Ganter actually participated in such misconduct. I completely reject the notion that an insurance agent may protect his license from allegations that he has violated one portion of the insurance code by merely demonstrating that he has, in fact, violated another portion.

ZEHMER, Judge

(Dissenting).

I agree that the Department of Insurance is obligated by the applicable case and statutory law to prove that Ganter personally “knew or should have known” of the alleged acts of misconduct committed by his salesman Schetina. Under the authorities cited in the majority opinion, the Department of Insurance is authorized to impose civil penalties involving the suspension or revocation of a person’s license to engage in an occupation only upon proof by clear and convincing evidence that the licensee personally participated in alleged acts of misconduct or, when the alleged acts of misconduct are shown to have been committed by a subordinate salesman or employee, that the licensee was guilty of personal misconduct in the sense that he either “knew or should have known” of such acts of misconduct in sufficient time to have taken action to prevent or correct it.1

I do not agree, however, that the evidence and findings of fact are legally sufficient to satisfy the Department’s burden of demonstrating, by clear and convincing evidence, that appellant Ganter was guilty of personal acts of misconduct because he knew or should have known of Schetina’s misconduct and thereby establish the alleged violations of the insurance code warranting the suspension of Ganter’s license. *207I reach this conclusion for the following reasons.

First, it is necessary to note that this case was charged and tried on the premise that the 1989 version of section 626.734 was controlling on Ganter’s personal liability for Schetina’s wrongful acts, and that the Department construed that statute as imposing strict legal liability on Ganter for Schetina’s wrongful acts charged in the complaint. This is made indisputably evident by the general allegations applicable to all counts of the Department’s administrative complaint:

6. Pursuant to Section 626.734, Florida Statutes, as a licensed general lines insurance agent and corporate officer of DEYOR OF BRANDON, you, JOHN W. GANTER, were and remain personally and fully liable and accountable for any wrongful acts, misconduct or violation of any provisions of the Florida Insurance Code which you, JOHN W. GANTER, or any person under your supervision and control commit while acting on behalf of the corporation.

The administrative complaint does not contain any allegations that Ganter is guilty of specific acts of negligent supervision because he knew or should have known of Schetina’s acts of misconduct; on the contrary, all counts except the first allege that Ganter personally solicited and procured the insurance and auto service contracts and received the monies paid therefor, and that these acts constituted violation of chapter 626.2 While the first count alleges that Schetina committed the charged acts, it further alleges that Ganter was absolutely liable therefor as if he had personally *208committed such acts. In other words, the complaint is couched solely in terms of Ganter’s liability in the nature of responde-at superior for the acts of another as a matter of law under the Department’s construction of section 626.734.

Consistent with this theory of strict liability, the hearing officer’s recommended order finds Schetina’s acts violated chapter 626 and then recites, “The question for resolution, however, is not what was done or whether that misconduct constitutes actionable misconduct, but whether that misconduct, clearly not perpetrated by the Respondent [Ganter], can be attributed to him and he be held liable therefor as to permit discipline of his license.” The hearing officer’s recommended resolution of this question relies on the 1989 version of section 626.734, construing this statute as imposing strict liability on Ganter for Schetina’s acts as a matter of law, as the following excerpt from the recommended order shows:

The resolution of this issue is resolved by existent law. Section 626.734, Florida Statutes, 1989, states:

Any general lines insurance agent who is an officer, director, stockholder, or employee of an incorporated general lines insurance agency shall remain personally and fully liable and accountable for any wrongful acts, misconduct, or violations or any provisions of this code committed by such licensee or by any person under his direct supervision and control while acting on behalf of the corporation.

Examining the facts shown to exist here in light of that statute it is clear that Devor Auto Insurance of Brandon, Inc., was an incorporated general lines agency and that Respondent was the president, director, and registered agent of the agency. He was the only licensed general lines insurance agent employed at or working at Devor of Brandon. The evidence also shows that Jay Schetina, an unlicensed individual, was working as a sales person at the agency and was the person who dealt with all the clients involved herein. Clearly, Mr. Schetina was running the agency for the Respondent during the four days per week that Respondent was working out of the Cape Coral office.

The evidence clearly establishes that Respondent did not, personally or directly, commit any of the misconduct which is charged here. He was, however, in charge. Mr. Schetina worked for him and was under his supervision, and as is aptly pointed out by counsel for Petitioner [Department], a simple review of business written and a follow-up of client files by the Respondent would have disclosed Schetina’s improprieties and afforded an opportunity to correct them. There is no indication that at any time during the period in issue, did Respondent make even the slightest effort to properly oversee his employees. In fact, the Department took action against him for that very failure even though the action, in the form of a Consent Order, did not come about until after the misconduct here shown. [Emphasis added.]

Respondent relies on the action taken by the Legislature in the 1990 session whereby Section 626.734 was changed to read:

Nothing in this section shall be construed to render any person criminally liable or subject to any disciplinary proceedings for any act unless such person personally committed or knew or should have known of such act and of the facts constituting a violation of this chapter.

Under even this latest statute, however, action can be taken against a licensee who did not personally commit acts of misconduct if that person knew or should have known of those facts.

Sections 626.611 and 626.621 are disciplinary statutes and permit revocation of a license under particular circumstances. Respondent is correct when he points out that such statutes must be strictly construed, Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1 DCA 1979).

Clearly, Respondent did not personally commit the misconduct alleged and he cannot, therefore, be disciplined under *209the provisions of Section 626.611. However, his laissez faire management approach to the running of Devor, and his almost cavalier approach to supervising the non-licensed individuals he had running the operation in his absence, make him clearly a candidate for action under section 626.621 if he can be found to fall within the purview of that portion of the statute which holds the principal liable if he should have known, [emphasis in original] what his employees were doing. Without doubt he does.

The evidence shows that Respondent, through his unsupervised employee, made fraudulent statements relative to the applications for the auto service policies for the clients outlined for the purpose of increasing his fee, (Sec. 626.-9541(l)(k)l [sic] and engaged in unfair and deceptive acts in the business of insurance (Sec. 626.9521). Both constitute violations of the Insurance Code and are also violations of Section 626.621(2) and (6), Florida Statutes.

There are no findings of fact relating to any specific acts showing that Ganter knew or should have known, or even when he knew or should have known, of Schetina’s misconduct. There are no findings as to what Ganter could or should have done but failed to do so as to gain such knowledge and prevent or cure Schetina’s wrongful acts. I am unable to determine from the record or the order precisely what the evidence shows about Ganter’s knowledge or how he should have gained such knowledge. I do not find any detailed findings of fact supported by competent, substantial evidence that are legally sufficient to support a basis for holding Ganter legally liable for the misconduct of his employee, Schetina, under the correct legal standard. Cf. Pic N’ Save Central Florida v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992). Whether Ganter could or should have discovered Schetina’s acts of misconduct and fraudulent representations by making a review of the files covering the transactions in question is purely a matter of conjecture, for there was no evidence and no specific findings of fact on this issue. The hearing officer’s recommended order merely recites in the “conclusions of law” that, “as is aptly pointed out by counsel for Petitioner [the Department], a simple review of business written and a follow-up of client files by the Respondent [Ganter] would have disclosed Schetina’s improprieties and afforded an opportunity to correct them. There is no indication that at any time during the period in issue, did Respondent make even the slightest effort to properly oversee his employees.” [Emphasis added.] But the recommended order contains no findings of fact based on matters in evidence that support these conclusions, nor do I know what record evidence the hearing officer is referring to in making these statements. Rather, these statements are based either on argument by counsel for the Department or the absence of evidence indicating that respondent made any effort to oversee or supervise his employee. This rationale reveals that the hearing officer was requiring Ganter to prove that he supervised his employees rather than requiring the Department to prove by clear and convincing evidence that Ganter would or should have learned of Schetina’s improper conduct had he not been guilty of conduct amounting to negligent supervision of Schetina. It may well be that Ganter did not present any evidence regarding the adequacy of his supervision in respect to the wrongful acts specifically charged because the administrative complaint only charged that Ganter was strictly liable as a matter of law for Schetina’s wrongful acts, not that Ganter was guilty of negligent supervision of his employee.

In any event, this alternative theory of negligent supervision fashioned in the hearing officer’s recommended order is not properly before this court as a basis for affirming the appealed final ordér. This is so because the Department’s final order explicitly ruled that the hearing officer’s statements in the conclusions of law were properly characterized as such and were not findings of fact. Ganter timely filed exceptions to the conclusions of law in the hearing officer’s recommended order. One of the exceptions urged a total lack of *210competent, substantial evidence and findings of fact to support the hearing officer’s statements in the conclusions of law that “... as is aptly pointed out by counsel for Petitioner, a simple review of business written and a follow-up of client files by the Respondent would have disclosed Sche-tina’s improprieties and afforded an opportunity to correct them.” The Department overruled Ganter’s exception to these statements, explaining:

The hearing officer’s phrase falls within the general discussion of Respondent’s capacity as supervisor at Devor Auto Insurance, Inc. This discussion shows how counsel for the Petitioner [Department] clearly established that Respondent’s activities met the terms of Section 626.734, Florida Statutes, which makes general lines agents strictly and personally liable for the misconduct of subordinates. Thus, the hearing officer’s phrase qualifies as a legal conclusion.

Further, the evidence clearly supports the conclusion that the Respondent had supervisory responsibilities over Jay Schetina. The record as a whole in this cause supports this conclusion; and, in particular, the Respondent himself stated of Mr. Schetina, “He’s my employee. He worked for me over two years, probably three years” (T. 182). Thus, the hearing officer properly applied the statute. That the hearing officer delved into Respondent’s style of supervision is inconsequential to his conclusion of Respondent’s violation.

(R. 6) (emphasis added). The Department determined only that the record contained competent, substantial evidence to prove that Ganter was Schetina’s supervisor; it refused to determine whether the record contained clear and convincing evidence legally sufficient to prove that Ganter’s personal conduct was a violation under chapter 626. Rejecting Ganter’s exception, the Department explicitly declined to consider whether Ganter’s personal acts of supervision over Schetina were legally deficient, and determined only that he should be held absolutely liable as a matter of law for Schetina’s wrongful acts under a strict application of section 626.734 without regard to any personal acts of misconduct.

Consistent with this theory of absolute liability, the final order also rejected the hearing officer’s recommended conclusion of law that since Ganter did not personally commit the misconduct alleged he could not be disciplined under section 626.611, making the following explanation:

This conclusion [in the hearing officer’s recommended order] implied that a lack of personal involvement in an infraction, or misconduct which brought the licensee in violation of the Insurance Code by virtue of Section 626.734, Florida Statutes, precluded application of section 626.611, Florida Statutes. This conclusion contradicts precedent. See Thomas v. Department of Insurance and Treasurer, 559 So.2d 419, 421-22 (Fla. 2d DCA 1990) (626.611 held applicable where insurance consumers unknowingly bought auto club memberships from licensee’s employee); Hartnett v. Department of Insurance, 432 So.2d 155, 157 (Fla. 3d DCA 1983) (licensee held personally accountable for misappropriation where employees committed misconduct). Accordingly, a licensee could be held in violation of Section 626.611, Florida Statutes, where he did not personally commit the misconduct alleged, and that portion of the hearing officer’s Conclusions of Law contradicting this principle is hereby REJECTED.

Based on this view of the law, the Department ruled that Ganter was subject to discipline regardless of his personal involvement in Schetina’s wrongful acts, or whether the record contained competent, substantial evidence to support findings of fact that, by reason of his own personal acts of misconduct, Ganter “knew or should have known” of Schetina’s misconduct. On this basis, the Department ordered Ganter’s license suspended. This is not the legal basis for the majority opinion’s affirmance of the final order, however. The majority opinion does not address the legal propriety of the ruling in the final order under review, although that is the principal error Ganter raises on this appeal. In holding that “there was clear and convincing evi*211dence to support the hearing officer’s determination that the agent knew or should have known of the misconduct of his employee,” the majority opinion ignores the legal and factual basis of the Department’s final order, approves the Department’s rejection of Ganter’s exception to the conclusions of law that are now characterized as findings of fact, implicitly disapproves the Department’s characterization of that statement as a “conclusion of law” rather than a “finding of fact,” and determines that the record contains clear and convincing evidence to prove facts not specifically found in the recommended order despite the Department’s refusal to make that analysis and determination. The majority opinion errs because the hearing officer’s statement that Ganter “knew or should have known” of Schetina’s misconduct by reason of Ganter’s failure to personally provide required supervision is seemingly predicated on argument by the Department’s counsel rather than specific evidence and findings of fact so identified in the recommended order; and the Department has never made a ruling on the sufficiency of the record evidence to support this statement as a finding of fact (the Department characterized it as a conclusion of law and refused to treat it as a finding of fact as the majority opinion does). Moreover, the administrative complaint does not charge either negligent supervision or that Ganter, by reason of acts of personal misconduct, “knew or should have known” of Schetina’s wrongful acts; it alleges only that Ganter is strictly liable as a matter of law for his employee’s misconduct. Affirming Ganter’s guilt on this legal and factual basis not alleged in the administrative complaint and not relied on by the Department’s final order is manifest error for obvious due process reasons.

For these reasons, I would reverse the final order and remand for further proceedings consistent with this opinion.