South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550 Fax: (803) 734-6400

SC Administrative Law Court Decisions

CAPTION:
David E. Rochester vs. SCDOI

AGENCY:
South Carolina Department of Insurance

PARTIES:
Petitioners:
David E. Rochester

Respondents:
South Carolina Department of Insurance
 
DOCKET NUMBER:
95-ALJ-09-0697-CC

APPEARANCES:
David E. Rochester, Pro se, for Petitioner

Philip Lenski, Esq., for Respondent
 

ORDERS:

ORDER

I. Statement of the Case

David E. Rochester (Rochester) sought a contested case hearing due to the denial by the South Carolina Department of Insurance (Department) of Rochester's application for a license as a State of South Carolina resident insurance agent. Jurisdiction is vested in the Administrative Law Judge Division by S.C. Code Ann. § 1-23-600(B) (Supp. 1995) as the result of a denial of a license by a department of the executive branch in which a single hearing officer is permitted by law to decide such cases. I find the Department is required to deny the license.

II. Issues

Do sufficient grounds exist to deny Rochester a State of South Carolina resident insurance agent's license?

III. Analysis

1. Positions of Parties:

Rochester does not dispute the fact that he has previously violated the insurance laws, but he asserts he is trustworthy and should receive an agent's license. The Department asserts Rochester is not trustworthy and that his prior violation of the insurance laws of South Carolina is sufficient cause to deny the requested license, especially where there is no evidence of rehabilitation.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. The Department is the state agency responsible for licensing agents under the insurance laws.

2. In April of 1995, Rochester filed an application with the Department to be licensed as a State of South Carolina resident insurance agent.

3. Rochester's application was denied by the Department on the grounds that Rochester's prior violation of the insurance laws demonstrates he is not trustworthy, and Rochester has not shown sufficient rehabilitation.

4. On January 26, 1993, the Department entered an order revoking Rochester's previously granted resident insurance agent's license.

5. The current application was filed with the Department more than two years after the revocation.

6. The Commissioner issued a consent order signed and agreed to by Rochester which found Rochester collected a Medicare supplement insurance premium from a South Carolina citizen but did not immediately forward the premium to the appropriate insurer.

7. Rochester received an annual premium from a client but retained a portion of the premium by remitting to the insurer a premium sufficient to cover a semi-annual payment.

8. During 1995, Rochester worked and acted as an insurance agent for Atlantic Coast Life Insurance.

9. Rochester was not licensed as an agent by the Department during 1995.

10. There is no evidence that Rochester has a criminal record.

11. Rochester does not meet the requirements for an agent's license.

3. Discussion

The applicant has the burden of demonstrating he has met the required conditions before the benefit sought can be granted. 73A C.J.S. Public Administrative Law and Procedure § 128 (1983). In seeking an agent's license, an applicant must prove that he is trustworthy since the Department, as a part of its duties in granting a license, must examine this characteristic. S.C. Code Regs. 69-23(g) (1976). A party who retains or fails to promptly transmit or pay all or a portion of an insurance premium commits an act that is deceitful and thus demonstrates a lack of trust. S.C. Code Ann. § 38-43-130 (Supp. 1995).

The Department's denial of Rochester's application stems from a lack of trustworthiness demonstrated by Rochester's retention and failure to promptly transmit or pay all or a portion of an insurance premium. In addition, the testimony demonstrated Rochester, as recently as 1995, worked as an insurance agent while his license was revoked and while no new license, either temporary or permanent, had been issued. Here, there is affirmative evidence showing a lack of trustworthiness, while correspondingly Rochester has not presented credible evidence demonstrating the presence of trustworthiness. In short, Rochester has not met his burden of proof. While no license can be issued at this time, the Department is free to act upon any future applications filed by Rochester with the Department's determination to be based upon the evidence submitted at the time of such subsequent applications.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. An individual who performs the acts listed in S.C. Code Ann. § 38-43-10 (Supp. 1995) and who represents an insurance company is an insurance agent. S.C. Code Ann. §38-1-20(20) (Supp. 1995).

2. An agent must be licensed by the Department of Insurance. S.C. Code Ann. §38-43-20 (Supp. 1995).

3. An applicant has the burden of demonstrating he has met the required conditions before the benefit sought can be granted. 73A C.J.S. Public Administrative Law and Procedure § 128 (1983).

4. To obtain a license as an agent, an individual must be trustworthy. S.C. Code Regs. 69-23(g).

5. A party who retains or fails to promptly transmit or pay all or a portion of an insurance premium commits an act that is deceitful and thus demonstrates a lack of trust. S.C. Code Ann. § 38-43-130 (Supp. 1995).

6. Rochester is not entitled to a State of South Carolina resident insurance agent's license.

IV. ORDER

Based upon the foregoing Findings of Fact, Discussion, and Conclusions of Law, the following ORDER is issued:

The Department is ordered to deny to David E. Rochester, a State of South Carolina resident insurance agent's license.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 12th day of February, 1996


Brown Bldg.

 

 

 

 

 

Copyright © 2021 South Carolina Administrative Law Court