07-004746RU George Marshall Smith vs. Alex Sink, As Agency Head And Chief Financial Officer And Department Of Financial Services Status: Closed DOAH Final Order on Friday, January 25, 2008.

Summary: The Agency statements in an administrative complaint are not rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE MARSHALL SMITH, )

)

Petitioner, )

)

vs. ) Case No. 07-4746RU

)

ALEX SINK, AS AGENCY HEAD )

AND CHIEF FINANCIAL OFFICER )

AND DEPARTMENT OF )

FINANCIAL SERVICES, )

)

Respondents. )

)

SUMMARY FINAL ORDER

PRELIMINARY STATEMENT

On October 15, 2007, George Marshall Smith (Petitioner)

filed a Petition to Determine the Invalidity of Agency

Statements against Alex Sink, as Agency Head and Chief Financial

Officer and the State of Florida, Department of Financial

Services (Respondents) pursuant to Sections 120.54(1) and

120.56(4), Florida Statutes (2007). In addition, the petition

referenced Section 120.57(1)(e), Florida Statutes (2007).

Petitioner seeks a determination concerning the alleged

invalidity of Agency Statements defined as rules. In

particular, Petitioner alleges:

* * *

v. The Department's Agency Statements

Defined as Rules as applied to the

Petitioner and others similarly situated

subject to this Petition can be summarized

as follows:

1. Ownership interests in viatical

settlement contracts sold in 2002 and 2003

are considered securities;

2. Ownership interests in viatical

settlement contracts in 2002 and 2003 are

not exempt from registration as securities;

3. Ownership interests in viatical

settlement contracts sold in 2002 and 2003

are required to be registered pursuant to

Section 517.07, Florida Statutes;

4. Individuals selling ownership interests

in viatical settlement contracts in 2002 and

2003 are required to [sic] licensed pursuant

to Chapter 517.12, Florida Statutes;

5. Ownership interests in viatical

settlement contracts sold in 2002 and 2003

are deemed by the Department to be

"securities which were required to be

registered" as referenced in Section

626.611(16), Florida Statutes;

6. The Department is authorized to initiate

enforcement actions and penalize individuals

who sold ownership interests in viatical

settlement contracts which are and were

required to be registered as securities and

which were sold prior to July 1, 2005.

7. The Department may apply Rules 1 through

6 above retroactively before July 1, 2005.

8. The Department may or must provide

"official notice" of administrative

complaints filed against Petitioner and

other individuals alleged to have violated

the above rules by writing letters to

persons and entities such individuals do

business with. A true copy of one such

letter is attached hereto as EXHIBIT "1" [1/]

9. The Department may or must invoice and

charge for copies of documents sent to

persons and entities pursuant to the letters

referred to in number 8 above.

Upon the filing of the petition with the State of Florida,

Division of Administrative Hearings (DOAH), the case was

assigned as Case No. 07-4746RU, reflected in the style to this

action.

The premise for proceeding with the petition is based upon

the assertion that

. . . Agency statements relating to an

administrative complaint filed against

Mr. Smith . . . as applied by the

Department, violate the rule-making

requirements of Section 120.56(4), Florida

Statutes.

The Administrative Complaint described was an action In the

Matter of: George Marshall Smith , Case No. 89790-07-AG brought

by Alex Sink, Chief Financial Officer of the State of Florida,

dated and signed on August 22, 2007, by Karen Chandler, Deputy

Chief Financial Officer. The Administrative Complaint is

attached as Exhibit "1" to the petition.

Separately George Marshall Smith requested a proceeding to

contest the Administrative Complaint in accordance with Sections

120.569 and 120.57, Florida Statutes. That case was forwarded

to DOAH upon the request. It is pending hearing in Department

of Financial Services, Petitioner vs. George Marshall Smith,

Respondent , DOAH Case No. 07-4701PL.

Ultimately, Petitioner herein seeks entry of a Final Order:

(c) ". . . determining that the Agency's Statements described in

this Petition, constitute unpromulgated rules as defined in

Section 120.52(15), Florida Statutes . . .", that the Agency

Statements; (d) ". . . are an invalid exercises of delegated

legislative authority" and (e) "that the Department cease its

reliance upon . . . " the Agency Statements.

On December 5, 2007, Respondents filed Department's Motion

for Summary Final Order pursuant to Section 120.56(4)(c),

Florida Statutes, and Florida Administrative Code Rule 28-

106.204(4). On December 7, 2007, Respondents filed Respondents'

Notice of Additional Authority for Respondents' Motion for

Summary Final Order. On that same date Respondents filed

Departments' Amended Motion for Summary Final Order.

On December 17, 2007, Petitioner filed Petitioner's

Response to the Motion for Summary Final Order by Respondent

Florida Department of Financial Services.

On December 17, 2007, Petitioner filed Petitioner's

Motion/Request for Oral Argument on the Pending Motion for

Summary Final Order. Having considered the arguments set forth

in the written submissions, oral argument is not needed.

On December 21, 2007, Respondents filed Department's Notice

of Filing Additional Authority.

FINDINGS OF FACT

1. The previously described Agency Statements allegedly

defined as rules constitute efforts by Petitioner to paraphrase

information found in the Administrative Complaint in Case No.

89790-07-AG. When contrasting the allegations within the

petition at paragraphs 12.1. through 12.5., they are comparable

to paragraphs within the Administrative Complaint which state:

General Allegations

* * *

4. At all times material hereto, you, GEORGE

MARSHALL SMITH, offered for sale and sold

viatical settlement purchase agreements on

behalf of Mutual Benefits Corporation

("MBC").

5. The viatical settlement purchase

agreements you, GEORGE MARSHALL SMITH,

offered for sale and sold on behalf of MBC

were securities, as defined under section

517.021(20)(q), Florida Statutes (2003).

6. The viatical settlement purchase

agreements that you, GEORGE MARSHALL SMITH,

offered for sale and sold on behalf of MBC

were not registered with the State of

Florida Department of Banking and Finance,

as required by Section 517.07, Florida

Statutes, and were not exempt from such

registration requirements, either under the

provisions of sections 517.051 or 517.61,

Florida Statutes.

7. You, GEORGE MARSHALL SMITH, were not

registered in this state to sell securities,

as required by Section 517.12, Florida

Statutes.

* * *

20. On or about September 17, 2002, you,

GEORGE MARSHALL SMITH, sold D.M. and V.M. of

The Villages, Florida, five viatical

settlement purchase agreements issued by

MBC. The total purchase price of the

viatical settlement purchase agreements was

over $70,000.

* * *

IT IS THEREFORE CHARGED that you, GEORGE

MARSHALL SMITH, have violated or are

accountable under the following provisions

of the Florida Insurance Code and Rules of

the Chief Financial Officer which constitute

grounds for the suspension or revocation of

your license(s) and eligibility for

licensure:

* * *

(d) Sale of an unregistered security that

was required to be registered, pursuant to

chapter 517. [Section 626.611(16), Florida

Statutes (2003)];

* * *

31. On or about March 18 and April 7, 2003,

you, GEORGE MARSHALL SMITH, sold G.A. and

E.A. of Lady Lake, Florida, eight viatical

settlement purchase agreements issued by

MMBC. The total purchase price of the

viatical settlement purchase agreements was

at least nearly $88,000.

* * *

IT IS THEREFORE CHARGED that you, GEORGE

MARSHALL SMITH, have violated or are

accountable under the following provisions

of the Florida Insurance Code and Rules of

the Chief Financial Officer which constitute

grounds for the suspension or revocation of

your license(s) and eligibility for

licensure:

* * *

(d) Sale of an unregistered security that

was required to be registered, pursuant to

Chapter 517. [Section 626.611(16), Florida

Statutes (2003)];

* * *

42. On or about June 9 and September 9,

2003, you, GEORGE MARSHALL SMITH, sold D.C.

and W.C. of the Villages, Florida, five

viatical settlement purchase agreements

issued by MBC. The total purchase price of

the viatical settlement purchase agreements

was $135,000.

* * *

IT IS THEREFORE CHARGED that you, GEORGE

MARSHALL SMITH, have violated or are

accountable under the following provisions

of the Florida Insurance Code and Rules of

the Chief Financial Officer which constitute

grounds for the suspension or revocation of

your license(s) and eligibility for

licensure:

* * *

(d) Sale of an unregistered security that

was required to be registered, pursuant to

chapter 517. [Section 626.611(16), Florida

Statutes (2003)];

2. Chapter 2005-237, Laws of Florida, effective July 1,

2005, added at Section 1., a definition within Section 517.021,

Florida Statutes, as follows:

517.021 Definitions.--When used in this

chapter, unless the context otherwise,

indicates, the following terms have the

following respective meanings:

* * *

(w) A viatical settlement investment.

(23) "Viatical settlement investment" means

an agreement for the purchase, sale,

assignment, transfer, devise, or bequest of

all or any portion of a legal or equitable

interest in a viaticated policy as defined

in chapter 626. The term does not include:

(a) The transfer or assignment of an

interest in a previously viaticated policy

from a natural person who transfers or

assigns no more than one such interest in 1

calendar year.

(b) The provision of stop-less coverage to

a viatical settlement provider, financing

entity, or related provider trust, as those

terms are defined in s. 626.9911, by an

authorized or eligible insurer.

(c) The transfer or assignment of a

viaticated policy from a licensed viatical

settlement provider to another licensed

viatical settlement provider, a related

provider trust, a financing entity, or a

special purpose entity, as those terms are

defined in s. 626.9911, or to a contingency

insurer provided that such transfer or

assignment is not the direct or indirect

promotion of any scheme or enterprise with

the intent of violating or evading any

provision of this chapter.

(d) The transfer or assignment of a

viaticated policy to a bank, trust company,

savings institution, insurance company,

dealer, investment company as defined in the

Investment Company Act of 1940, pension or

profit-sharing trust, or qualified

institutional buyer as defined in United

States Securities and Exchange Commission

Rule 144A, 17 C.F.R. 230.144A(a, or to an

accredited investor as defined by Rule 501

of Regulation D of the Securities Act

Rules, provided such transfer or assignment

is not for the Securities Act Rules,

provided such transfer or assignment is not

for the direct or indirect promotion of any

scheme or enterprise with the intent of

violating or evading any provision of this

chapter.

(e) The transfer or assignment of a

viaticated policy by a conservator of a

viatical settlement provider appointed by a

court of competent jurisdiction who

transfers or assigns ownership of viaticated

policies pursuant to that court's order.

3. Chapter 2005-237, Laws of Florida at Sections 7., 8.,

10., 11., and 14. state in pertinent part:

Section 7. Subsection (10) of section

626.015, Florida Statutes, is amended to

read:

626.015 Definitions.--As used in this part:

(10) "Life agent" means an individual

representing an insurer as to life insurance

and annuity contracts, or acting as a

viatical settlement broker as defined in s.

626.9911, including agents appointed to

transact life insurance, fixed-dollar

annuity contracts, or variable contracts by

the same insurer.

Section 8. Paragraph (b) of subsection (1)

of section 626.112, Florida Statutes, is

amended to read:

626.112 License and appointment required;

agents, customer representatives, adjusters,

insurance agencies, service representatives,

managing general agents.--

(1)

(b) Except as provided in subsection (6) or

in applicable department rules, and in

addition to other conduct described in this

chapter with respect to particular types of

agents, a license as an insurance agent,

service representative, customer

representative, or limited customer

representative is required in order to

engage in the solicitation of insurance.

For purposes of this requirement, as

applicable to any of the license types

described in this section, the solicitation

of insurance is the attempt to persuade any

person to purchase an insurance product by:

1. Describing the benefits or terms of

insurance coverage, including premiums or

rates of return;

2. Distributing an invitation to contract

to prospective purchasers;

3. Making general or specific

recommendations as to insurance products;

4. Completing order or applications or

insurance products; or

5. Comparing insurance products, advising

as to insurance matters, or interpreting

policies or coverages; or

6. Offering or attempting to negotiate on

behalf of another persona a viatical

settlement contract as defined in s.

626.9911 .

* * *

Section 10. Subsection (2) of section

626.331, Florida Statutes, is amended to

read:

626.331 Number of appointments permitted or

required.-

(2) An agent shall be required to have a

separate appointment as to each insurer by

whom he or she is appointed as an agent. An

agent must appoint himself or herself before

performing the functions of a viatical

settlement broker .

Section 11. Subsection (17) is added to

section 626.611, Florida Statutes, to read:

626.611 Grounds for compulsory refusal,

suspension, or revocation of agent's, title

agency's, adjuster's, customer

representative's, service representative's,

or managing general agent's license or

appointment.--The department shall deny an

application for, suspend, revoke, or refuse

to renew or continue the license or

appointment of any applicant, agent, title

agency, adjuster, customer representative,

service representative, or managing general

agent, and it shall suspend or revoke the

eligibility to hold a license or appointment

of any such person, if it finds that as to

the applicant, licensee, or appointee any

one or more of the following applicable

grounds exist:

(17) In transactions related to viatical

settlement contracts as defined in s.

626.9911:

(a) Commission of a fraudulent or dishonest

act.

(b) No longer meeting the requirements for

initial licensure.

(c) Having received a fee, commission, or

other valuable consideration for his or her

services with respect to viatical

settlements that involved unlicensed

viatical settlement providers or persons who

offered or attempted to negotiate on behalf

of another person a viatical settlement

contract as defined in s. 626.9911 and who

were not licensed life agents.

(d) Dealing in bad faith with viators.

* * *

Section 14. Section 626.9911, Florida

Statutes, is amended to read:

626.9911 Definitions.--As used in this act,

the term:

* * *

(11) "Viatical settlement investment" has

the same meaning as specified in s.517.021.

4. The petition also discusses similar administrative

complaints against persons other than Mr. Smith brought by the

Department, a point upon which there is agreement, evidence the

case, Department of Financial Services v. Bradley Wayne Kline ,

Case No. 849567-07-AG. Final order (filed 12/21/07), pertaining

to the Recommended Order in DOAH Case No. 07-1218PL.

5. In association with paragraphs 12.8 and 12.9 alleged to

constitute Agency Statements defined as rules, evidence to

support that allegation is as reflected in Exhibit "2" to the

petition which states:

FLORIDA DEPARTMENT OF FINANCIAL SERVICES

ALEX SINK

CHIEF FINANCIAL OFFICER

September 06, 2007

JACKSON NATIONAL LIFE INSURANCE COMPANY

BETH WRIGHT

PO BOX 24068

LANSING MI 48909-4068

Re: GEORGE MARSHALL SMITH

License Number DO34447

Dear Sir or Madam:

This letter serves as official notice that

the Department filed an Administrative

Complaint against the above referenced

individual on 08/22/2007.

If you wish to receive a copy of the above

referenced Administrative Complaint, you may

return a copy of this letter with our

request to the Department of Financial

Services, Document Processing Section, PO

Box 5320, Tallahassee FL 32314-5320 or fax

your request to [phone]. They will

retrieve the document(s) and invoice you as

to the amount owed. Once the fee is

received, the document(s) will be sent to

you.

If you have any questions concerning this

matter, you should contact our legal

division at [phone].

Bureau of Licensing

FLDFS BUREAU OF LICENSING

200 EAST GAINES STREET*TALLAHASSEE, FLORIDA

32399-0319*[phone]

HTTP//WWW.FLDFS.COM

This example is perceived as the form of "official notice" of an

Administrative Complaint filed against George Marshall Smith and

others similarly situated and the practice of invoicing and

charging for copies of documents sent to persons who inquire

about Administrative Complaints in this case or others of a

similar nature.

CONCLUSIONS OF LAW

6. The authority to consider the Department's Motion for

Summary Final Order and its amendment is found in Section

120.57(1)(h), Florida Statutes (2007), which states:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered if the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

7. Based upon case materials submitted to DOAH in

association with the dispute and there being no genuine issue as

to any material fact left to be resolved, before considering the

matter of law, a determination has been made concerning the

Motion for Summary Final Order and its amendment.

8. In this case Petitioner may proceed with his challenge

pursuant to Section 120.56(4), Florida Statutes (2007), in

addressing those items set forth in Paragraph 12.1 through 12.9

as a collateral proceeding separate from the case Department of

Financial Services, Petitioner vs. George Marshall Smith,

Respondent , DOAH Case No. 07-4701PL. The latter case is an

action in accordance with Section 120.57(1), Florida Statutes

(2007). The decision in United Wisconsin Life Ins. Co. v. Dept.

of Ins. , 831 So. 2d 239 (Fla. 1st DCA 2002) does not bar that

opportunity. The present case is unlike United Wisconsin ,

wherein the court describes the issues in that case as matters

of first impression and considers facts unique to that case.

The opinion discussed allegations in the underlying

Administrative Complaint related to that case, whether the

allegations were unpromulgated rules, already decided in the

related Section 120.57 case and the lack of necessity to proceed

according to Section 120.56(4). The present dispute has

proceeded with the Section 120.56(4) claims in advance of the

related case pursuant to Section 120.57(1). Dissimilar from

United Wisconsin , here no disposition had been achieved in the

disciplinary case, in accordance with Section 120.57(1)(e),

concerning the question of whether the allegations within the

Administrative Complaint under attack constituted unpromulgated

rules contrary to the prohibition set forth in Section

120.54(1), Florida Statutes (2007), before proceeding with the

case pursuant to Section 120.56(4). The court in United

Wisconsin noted the disposition of the question of whether the

allegations found in the underlying Administrative Complaint in

that case constituted unpromulgated rules was pending on appeal

and could be resolved without the necessity of a collateral

challenge pursuant to Section 120.56(4), Florida Statutes. That

does not reflect the sequence of events in the present case.

The opposite is true and in the interest of efficiency the

matter can be resolved on this occasion, related to the question

of the proper characterization of the Agency Statements

allegedly defined as rules, in advance of the scheduled hearing

in DOAH Case No. 07-4701PL.

9. Section 120.56(4), Florida Statutes (2007), states in

pertinent part:

(4) CHALLENGING AGENCY STATEMENTS DEFINED

AS RULES; SPECIAL PROVISIONS.--

(a) Any person substantially affected by an

agency statement may seek an administrative

determination that the statement violates s.

120.54 (1)(a). The petition shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a rule under s.

120.52 and that the agency has not adopted

the statement by the rulemaking procedure

provided by s. 120.54.

(b) The administrative law judge may extend

the hearing date beyond 30 days after

assignment of the case for good cause. If a

hearing is held and the petitioner proves

the allegations of the petition, the agency

shall have the burden of proving that

rulemaking is not feasible and practicable

under s. 120.54 (1)(a).

(c) The administrative law judge may

determine whether all or part of a statement

violates s. 120.54 (1)(a). The decision of

the administrative law judge shall

constitute a final order. The division

shall transmit a copy of the final order to

the Department of State and the committee.

The Department of State shall publish notice

of the final order in the first available

issue of the Florida Administrative Weekly.

(d) When an administrative law judge enters

a final order that all or part of an agency

statement violates s. 120.54 (1)(a), the

agency shall immediately discontinue all

reliance upon the statement or any

substantially similar statement as a basis

for agency action.

* * *

(f) All proceedings to determine a

violation of s. 120.54(1)(a) shall be

brought pursuant to this subsection. A

proceeding pursuant to this subsection may

be consolidated with a proceeding under any

other section of this chapter. Nothing in

this paragraph shall be construed to prevent

a party whose substantial interests have

been determined by an agency action from

bringing a proceeding pursuant to s.

120.57(1)(e).

10. As referred to in Section 120.56(4), Florida Statutes

(2007), Section 120.54(1), Florida Statutes (2007), states in

pertinent part:

120.54 Rulemaking.--

(1) GENERAL PROVISIONS APPLICABLE TO ALL

RULES OTHER THAN EMERGENCY RULES.--

(a) Rulemaking is not a matter of agency

discretion. Each agency statement defined as

a rule by s. 120.52 shall be adopted by the

rulemaking procedure provided by this

section as soon as feasible and practicable.

1. Rulemaking shall be presumed feasible

unless the agency proves that:

a. The agency has not had sufficient time

to acquire the knowledge and experience

reasonably necessary to address a statement

by rulemaking;

b. Related matters are not sufficiently

resolved to enable the agency to address a

statement by rulemaking; or

c. The agency is currently using the

rulemaking procedure expeditiously and in

good faith to adopt rules which address the

statement.

2. Rulemaking shall be presumed practicable

to the extent necessary to provide fair

notice to affected persons of relevant

agency procedures and applicable principles,

criteria, or standards for agency decisions

unless the agency proves that:

a. Detail or precision in the establishment

of principles, criteria, or standards for

agency decisions is not reasonable under the

circumstances; or

b. The particular questions addressed are

of such a narrow scope that more specific

resolution of the matter is impractical

outside of an adjudication to determine the

substantial interests of a party based on

individual circumstances.

* * *

11. The term "rule" is defined at Section 120.52(15),

Florida Statutes (2007), where it states:

(15) "Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeal of a rule. The term does not include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budgets.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

Financial Officer or Comptroller as chief

fiscal officer of the state and relating or

pertaining to claims for payment submitted

by state agencies to the Chief Financial

Officer or Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

12. To meet the requirements for standing set forth in

Section 120.56(4)(a), Florida Statutes (2007), that is to show

that Petitioner is substantially affected by the alleged agency

statements defined as rules, Petitioner must prove a real and

sufficiently immediate injury in fact by the imposition of those

statements, within the zone of interest protected or regulated

by the statements. See Florida Board of Medicine vs. Florida

Academy of Cosmetic Surgery , 808 So. 2d 243 (Fla. 1st DCA 2002).

13. The challenged Agency Statements fall within two

categories, those reflected in paragraphs 12.1 through 12.7 in

association with the Administrative Complaint in Case No. 89790-

07-AG and those paragraphs 12.8 and 12.9 outside the experience

of the Administrative Complaint.

14. The allegations at paragraph 12.1 through 12.7.

paraphrasing the aforementioned provisions within the

Administrative Complaint have substantial effect on Petitioner

sufficient to allow consideration of the challenge to the Agency

Statements. But they are not rules as defined at Section

120.52(15), Florida Statutes (2007). They are pleadings within

the Administrative Complaint intended to explain the

interpretation provided by the agency concerning the meaning of

provisions within Chapters 517 and 626, Florida Statutes, in

effect when the alleged misconduct took place as described in

the Administrative Complaint. Effort at enforcing the

regulatory statutes by this means does not constitute the

establishment of agency statements defined as rules, without

benefit of compliance with procedures required by Section

120.54(1)(a), Florida Statutes (2007). Repetition of the

practice in drafting administrative complaints in other

disciplinary cases does not change the character of the act,

thus mandating establishment of the agency's statements or

policies as rules by proper adoption. Resolution of the dispute

between the parties concerning authority to proceed against the

licenses held by George Marshall Smith under terms set forth in

the Administrative Complaint must be achieved through the formal

hearing in DOAH Case No. 07-4701PL, as contemplated by Section

120.57(1), Florida Statutes (2007). See Environmental Trust,

Inc. vs. State Dept of Environmental Protection , 714 So. 2d 493

(Fla. 1st DCA 1998). By its design the Administrative Complaint

is not an instrument that " . . . imposes any requirement or

solicits any information not specifically required by statute

. . . " § 120.52(15), Fla. Stat. (2007). Whether the reading

afforded those statutory provisions within the Administrative

Complaint is appropriate will be settled when the statutes are

interpreted in the disciplinary hearing, whose outcome will not

bring about creation of requirements that were not there before.

15. Concerning the challenges made, as reflected in

paragraphs 12.8. and 12.9. to the petition, Petitioner lacks

standing to pursue the challenge. He is not substantially

affected by the letter directed to Jackson National Life

Insurance Company concerning the pendency of an Administrative

Complaint placed against Respondent, nor is Respondent

substantially affected by the letter's reference to an invoice

to be provided should the company seek a copy of the

Administrative Complaint calling upon or obligating the company

to pay for those copies pursuant to the invoice. These

arrangements between the Department and the company in the

notification concerning the Administrative Complaint and the

necessity to pay for copies are matters unrelated to a real and

sufficiently immediate injury that would befall Petitioner.

Unlike the company, the zone of interest created in receiving

notice and requesting a copy of the Administrative Complaint on

the part of the company are not sufficiently related to

Petitioner's concerns.

16. Although standing has not been found, should

Petitioner have standing to challenge the agency statements

reflected in paragraphs 12.8 and 12.9 within the petition, the

Department of Financial Services had statutory authority to

disseminate the notice pursuant to Section 624.307(4), Florida

Statutes (2007). Authority to charge for copies of the

Administrative Complaint is allowed in accordance with Section

624.501(19)(a), Florida Statutes (2007). The letter to the

insurance company with these details concerning the existence of

the Administrative Complaint placed against Respondent and the

opportunity to request a copy or any similar arrangement in

relation to other persons charged by Administrative Complaint is

not a rule as defined at Section 120.52(15), Florida Statutes

(2007), for reasons already explained.

17. In the Petition reference was made to Section

120.57(1)(e), Florida Statutes (2007), which states:

(e)1. Any agency action that determines the

substantial interests of a party and that is

based on an unadopted rule is subject to de

novo review by an administrative law judge.

* * *

Any opportunity to pursue claims under that provision are proper

subjects for DOAH Case No. 07-4701PL.

18. In that the Agency Statements challenged have not been

found to be rules, no consideration is given to Petitioner's

claims that the Agency's statements constitute invalid exercises

of delegated legislative authority, nor could they be pursuant

to Section 120.56(4), Florida Statutes (2007).

19. Petitioner is not entitled to the reimbursement of

costs and attorney's fees in association with his challenge to

the Agency's Statements. § 120.595(4), Fla. Stat. (2007).

Upon consideration the Petition to Determine the Invalidity

of Agency Statements is dismissed.

DONE AND ORDERED this 25th day of January, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of January, 2008.

ENDNOTE

1/ The copy attached to the petition is labeled as EXHIBIT "2."

COPIES FURNISHED :

H. Richard Bisbee, Esquire

H. Richard Bisbee, P.A.

1882 Capital Circle Northeast, Suite 206

Tallahassee, Florida 32308

David J. Busch, Esquire

Department of Financial Services

Division of Legal Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.