Opinion
No. 88-2924.
September 8, 1989. Rehearing Denied October 11, 1989.
Petition for review from the Insurance Commissioner.
Donald E. Brown of Zisser, Robinson, Spohrer Wilner, P.A., Jacksonville, for appellants.
Lisa S. Santucci, Office of Legal Affairs, Dept. of Ins. and Treasurer, Tallahassee, for appellee.
We review a final order of the insurance commissioner revoking or suspending certain licenses held by the appellants. It was error for the commissioner to reject the hearing officer's finding of fact in paragraph 25, as it was supported by competent substantial evidence in the record. Although we do not find error in the commissioner's ruling that Respondent's exhibit 3 was improperly admitted in evidence because not shown to be related to the specific fire extinguisher involved in that charge, we disapprove the commissioner's overruling of the hearing officer's finding of fact in paragraph 31 based on the exclusion of this evidence. Under the circumstances of this case, the correct remedy was to remand the specific charge that the evidence was submitted to prove or disprove to the hearing officer for further hearing to afford the party relying on the admission of such evidence an opportunity to meet the objection sustained by the reviewing tribunal, or to offer additional evidence to prove the fact in question. We hold these errors harmless in this instance, and find no abuse of discretion in the commissioner's increasing the penalty imposed based on the other numerous exceptions to the hearing officer's findings of fact and conclusions of law that were properly granted by the commissioner. We treat the sentence on page 12 of the final order reading, "During this period, Mr. LARUSSO shall not be employed in, or in any other way associated with, the business of fire protection equipment," as surplusage not within the authority of the statute, and direct its deletion from the final order.
The appealed order and the penalties imposed, as modified herein, are AFFIRMED.
ERVIN, WENTWORTH and ZEHMER, JJ., concur.