ALAN DAVID COTTRILL, APPELLANT,
v.
DEPARTMENT OF INSURANCE, APPELLEE
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Alan David Cottrill appeals the Department of Insurance's revocation of his license based on violations of multiple insurance statutes. The court affirmed findings on three violations but reversed findings on two violations that were not adequately pleaded in the administrative complaint, holding that licensees must receive reasonable notice of the specific conduct constituting violations.
The court held that disciplinary action cannot be based on statutory violations that were not adequately pleaded with factual allegations in the administrative complaint. While the court affirmed findings of guilt for violations of sections 626.611(5) and (9) and 626.621(12), it reversed the findings regarding sections 627.4085(1) and 627.8405 due to insufficient pleading of the underlying facts.
[1] In administrative license renewal proceedings, an agency must prove alleged misconduct by a preponderance of the evidence.
[2] The "competent substantial evidence" standard applies to appellate review of an agency's factual findings, not to the evidentiary burden of proof at an administrative hea…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Even though the administrative complaint contained references to these statutory provisions, it did not allege any act or omission in violation of either provision.”
Establishes that mere citation to a statute in a complaint is insufficient without allegations of specific facts constituting the violation
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Join FLexlaw to unlock all legal intelligenceCottrill's insurance license was subject to disciplinary proceedings by the Department of Insurance. The Department issued an administrative complaint…
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BENTON, Judge.
Alan David Cottrill appeals a final order of the Department of Insurance (Department). The final order adopted the recommended order’s findings and conclusions “as clarified,” and the recommendation that appellant’s license be revoked, while declining to impose fines that the hearing officer recommended. See Dyer v. Department of Ins., 585 So. 2d 1009 (Fla. 1st DCA 1991). We reverse in part and remand for reconsideration of the penalty: Not all of the violations of which appellant was found guilty were alleged in the administrative complaint.
The final order finds appellant guilty of violations of sections 626.611(5) and (9), 626.621(12), 627.4085(1), and 627.8405, Florida Statutes (1993). Substantial competent evidence supports the determination that appellant violated sections 626.611(5) and (9) and 626.621(12), Florida Statutes (1993). We reject appellant’s contention to the contrary, and affirm the final order insofar as it finds appellant violated sections 626.611(5) and (9) and 626.621(12), Florida Statutes (1993).
To the extent the final order finds appellant guilty of violating sections 627.4085(1) and 627.8405, Florida Statutes (1993), however, it must be reversed. While evidence came in which might well support the recommended order’s findings that appellant acted in violation of sections 627.4085(1) and 627.8405, Florida Statutes (1993), the Department never pleaded facts that constituted violations of section 627.4085(1) or 627.8405, Florida Statutes (1993).
Even though the administrative complaint contained references to these statutory provisions, it did not allege any act or omission in violation of either provision. As to these putative violations, the administrative complaint did not afford “reasonable notice to the licensee of facts or conduct which warrant” disciplinary action, as required by chapter 96-159, section 26, at 51, Laws of Florida, creating section 120.60(5), Florida Statutes (Supp.l996)(ineorporating language from section 120.60(7), Florida Statutes (1993), with minor modifications not relevant here). See Robins v. Florida Real Estate Comm’n, 162 So. 2d 535, 537 (Fla. 3d DCA 1964).
Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act. To countenance such a procedure would render nugatory the right to a formal administrative proceeding to contest the allegations of an administrative complaint. See Klein v. Department of Business and Professional Regulation, 625 So. 2d 1237, 1238 (Fla. 2d DCA 1993).
While we base our decision on the Administrative Procedure Act, we are not unaware that both state and federal constitutions require adequate notice before a citizen’s livelihood can be taken away. Hickey v. Wells, 91 So. 2d 206 (Fla.1956); Chrysler v. Department of Professional Regulation, 627 So. 2d 31 (Fla. 1st DCA 1993); Willner v. Department of Professional Regulation, 563 So. 2d 805 (Fla. 1st DCA 1990), review denied, 576 So. 2d 295 (Fla.1991); Celaya v. Department of Professional Regulation, 560 So. 2d 383 (Fla. 3d DCA 1990); Sternberg v. Department of Professional Regulation, 465 So. 2d 1324 (Fla. 1st DCA 1985); Wray v. Department of Professional Regulation, 435 So. 2d 312 (Fla. 1st DCA 1983).
We reverse the final order insofar as it finds appellant violated sections 627.4085(1) and 627.8405, Florida Statutes (1993), and remand with directions to the Department to take appropriate disciplinary action, predicated solely on the violations both pleaded in the administrative complaint and proven at hearing. Munch v. Department of Professional Regulation, 592 So. 2d 1136, 1144 (Fla. 1st DCA 1992)(“Because we reverse in part the Commission’s Final Order, we must remand to the Commission to permit it to reconsider the penalty imposed upon appellant in light of this opinion.”); Schepp v. School Bd. of Broward County, 506 So. 2d 1108 (Fla. 4th DCA 1987); LaRossa v. Department of Professional Regulation, 474 So. 2d 322, 325 (Fla. 3d DCA 1985)(“Since we have reversed the Commission’s finding with regard to subsection (k), we must remand this cause to the Commission for reconsideration of the penalty imposed.”).
Affirmed in part; reversed in part; and remanded.
ERVIN and KAHN, JJ., concur.
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Werner v. State, 689 So. 2d 1211 (Fla. 1st DCA 1997)…ord, e.g., Jenkins v. State Bd. of Educ., 399 So. 2d 103 (Fla. 1st DCA 1981). No Motion To Dismiss Filed Arguing for the first time on appeal that the administrative complaint was deficient, appellant has cited Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996)(“Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act.”). The present administrative complaint alleged th…
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Thomas P. Trevisani, M.D. v. Dep't OF Health, 908 So. 2d 1108 (Fla. 1st DCA 2005)…ions that Appellant failed to retain possession of the medical records. The single reference to the statute without supporting factual allegations was not sufficient to place Appellant on notice of the charges against him. Cottrill v. Dep’t of Ins., 685 So. 2d 1371 (Fla. 1st DCA 1996) (partly reversing Department’s final order and remanding for reconsideration of penalty, where administrative complaint merely cited statutes but failed to allege any act or omission in violation of statutes allegedly violated by…
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M.H. and A.H. v. Dep't of Child. & Fam. Servs., 977 So. 2d 755 (Fla. 2d DCA 2008)…of the renewal of the Foster Parents’ license. At the administrative hearing, the ALJ properly restricted his consideration of the matter to the specific question that DCF itself had framed as the issue to be decided. Cf. Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (“Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act.”). On this specific issue, the ALJ found— b…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Hickey v. Reeves F. Wells, 91 So. 2d 206 (Fla. 1956)
- Robins v. The Fla. Real Est. Comm'n & Joseph Condermann, 162 So. 2d 535 (Fla. 3d DCA 1964)
- Chrysler v. Dep't of Prof'l Reg., 627 So. 2d 31 (Fla. 1st DCA 1993)
- Munch v. Dep't of Prof'l Reg., 592 So. 2d 1136 (Fla. 1st DCA 1992)
- State v. Johnson, 560 So. 2d 383 (Fla. 3d DCA 1990)
- Robert E. Willner, M.D. v. Dep't of Prof'l Reg., 563 So. 2d 805 (Fla. 1st DCA 1990)
- Robert H. Wray, M.D. v. Dep't of Prof'l Reg., 435 So. 2d 312 (Fla. 1st DCA 1983)
- Castillo v. Tracor Marine, Inc., 474 So. 2d 322 (Fla. 3d DCA 1985)
- Oscar Klein, M.D. v. Dep't of Bus. & Prof'l Reg., 625 So. 2d 1237 (Fla. 2d DCA 1993)
- Dyer v. Dep't OF Ins. & Treas., 585 So. 2d 1009 (Fla. 1st DCA 1991)