                                                                           FILED
                                                                       Dec 31 2018, 7:37 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                       Arend J. Abel
Attorney General of Indiana                               Cohen & Malad, LLP
                                                          Indianapolis, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

The Commissioner of the                                   December 31, 2018
Indiana Department of                                     Court of Appeals Case No.
Insurance,                                                18A-MI-864
Appellant,                                                Appeal from the Marion Superior
                                                          Court
        v.                                                The Honorable Patrick J. Dietrick,
                                                          Judge
Jeffrey A. Schumaker,                                     Trial Court Cause No.
Appellee.                                                 49D12-1703-MI-11747




Brown, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018                           Page 1 of 20
[1]   The Commissioner (the “Commissioner”) for the Indiana Department of

      Insurance (the “Department”) appeals the trial court’s order vacating its

      decision to not renew Jeffrey A. Schumaker’s insurance producer license. We

      affirm.


                                       Facts and Procedural History

[2]   Schumaker has held an insurance producer license since 1990 and concentrates

      his business in life, health, disability, and Medicare supplement insurance. He

      also held a license with the Financial Industry Regulatory Authority

      (“FINRA”) permitting him to sell securities. In 2011, Mr. Schumaker

      experienced financial difficulties1 and took $8,300 from his homeowners

      association, for which he volunteered as the treasurer. In March 2014,

      Schumaker repaid the money he had taken from the homeowners association

      along with two years of dues he owed and one year of future dues. He

      disclosed his actions to the homeowners association and resigned as treasurer,

      and the association elected not to pursue charges. Schumaker reported his

      actions to his broker-dealer, the broker-dealer in turn communicated with

      FINRA, and Schumaker elected not to challenge the suspension issued by

      FINRA. Schumaker believed FINRA communicated with the Commissioner,




      1
       Schumaker indicated he had been in an accident and was being sued and that a large medical bill had come
      due.

      Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018                         Page 2 of 20
      and when completing his license renewal application, he disclosed his FINRA

      bar.2


[3]   On August 12, 2016, the Commissioner issued an Administrative Order Notice

      of Nonrenewal of License which stated the enforcement division of the

      Department received untimely notification of Schumaker’s securities license

      suspension and permanent bar, stated Schumaker had disclosed that he

      misappropriated funds for personal use as treasurer of his homeowners

      association, cited Ind. Code § 27-1-15.6-17(a)3 and Ind. Code § 27-1-15.6-

      12(b)(8),4 and stated that Schumaker’s producer license would not be renewed.




      2
        The administrative record contains a letter by Lincoln Financial Group dated April 25, 2016, to the
      Department stating that it requested an appointment termination for Schumaker as a result of his permanent
      bar by FINRA. An employee of the Department testified that the Department received the letter and sent a
      communication to Schumaker which was returned because it was addressed incorrectly and that, on the day
      the communication came back through the mail, the employee received Schumaker’s renewal application
      from the licensing division.
      3
        Ind. Code § 27-1-15.6-17(a) provides “[a] producer shall report to the commissioner any administrative
      action taken against the producer in another jurisdiction or by another governmental agency in Indiana not
      more than thirty (30) days after the final disposition of the matter.”
      4
          Ind. Code § 27-1-15.6-12(b) provides in part:

                 The commissioner may reprimand, levy a civil penalty, place an insurance producer on
                 probation, suspend an insurance producer’s license, revoke an insurance producer’s
                 license for a period of years, permanently revoke an insurance producer’s license, or
                 refuse to issue or renew an insurance producer license, or take any combination of these
                 actions, for any of the following causes:
                          (1) Providing incorrect, misleading, incomplete, or materially untrue
                          information in a license application.
                                                          *****
                          (8) Using fraudulent, coercive, or dishonest practices, or demonstrating
                          incompetence, untrustworthiness, or financial irresponsibility in the conduct of
                          business in Indiana or elsewhere.

      Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018                                   Page 3 of 20
      At Schumaker’s request, a hearing was scheduled before an administrative law

      judge (the “ALJ”).


[4]   On September 14, 2016, the ALJ held a hearing. In November 2016, the ALJ

      issued Findings of Fact, Conclusions of Law and Order. The ALJ found, “[i]n

      response to Question 2, of his application for renewal to [the Department]

      Schumaker made a full and complete disclosure of the FINRA bar and the

      circumstances leading thereto.”5 Appellant’s Appendix Volume II at 35. The

      ALJ found that no evidence was presented that Schumaker has ever committed

      any conduct that is fraudulent, coercive, dishonest, incompetent,

      untrustworthy, or financially irresponsible in the conduct of his insurance

      business or any other business venture. The ALJ also found “the evidence in

      this case demonstrates that Schumaker took $8300 from the homeowners’

      association bank account with the intent to repay it” and “[w]hile dishonest, all

      evidence presented at the hearing was that this was a singular issue, out of

      character for Schumaker, and not part of a pattern of deceit or a series of

      ‘practices’ in either his personal or professional life.” Id. at 37. The ALJ

      recommended that the order of nonrenewal be reversed on the conditions that

      Schumaker’s license be granted on a two-year probationary basis and that he

      pay a civil penalty of $1,000.




      5
       The ALJ indicated that Question 2 stated: “Have you been named or involved as a party in an
      administrative proceeding, including a FINRA sanction or arbitration proceeding regarding any professional
      or occupational license or registration, which has not been previously reported to this insurance department?”
      Appellant’s Appendix Volume II at 31.

      Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018                             Page 4 of 20
[5]   On February 20, 2017, the Commissioner issued Findings of Fact, Conclusions

      of Law, and Final Order. The Commissioner stated that the Department filed

      an objection to the ALJ’s recommended order and challenged, in relevant part,

      the ALJ’s conclusions relating to Ind. Code § 27-1-15.6-12(b)(8). The

      Commissioner found that Schumaker violated subsections (1) and (8) of Ind.

      Code § 27-1-15.6-12(b) and ordered that his insurance producer license not be

      renewed.


[6]   On March 22, 2017, Schumaker filed a petition for judicial review with the trial

      court. The parties submitted briefs6 and on February 1, 2018, the court held

      argument. On March 19, 2018, it issued its Findings of Fact,7 Conclusions of

      Law and Order which vacated the Commissioner’s February 20, 2017 order

      and provided:

                                                    Findings of Fact

                 1. Mr. Schumaker concentrates his business in life and health
                 insurance, disability and Medicare supplement insurance. Ex. 5. In
                 his insurance business, Mr. Schumaker does not handle any cash for
                 insureds. Tr. 35. Instead, the insured pays all premiums directly to
                 the insurance company. Id. The only funds Mr. Schumaker deals
                 with are his own commission checks from which he pays his salary
                 and his office expenses. Id.




      6
        Schumaker argued that FINRA is not a governmental agency but an independent, non-for-profit
      organization and that the FINRA action was not an administrative action which was required to be disclosed
      under Ind. Code § 27-1-15.6-17(a). The Commissioner replied that FINRA actions “are precisely the types of
      sanctions the Department needs to know about.” Appellant’s Appendix Volume II at 69.
      7
          The parties do not challenge the factual findings.


      Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018                          Page 5 of 20
        2. At the time of the administrative hearing, Mr. Schumaker had
        held a license from the Department for 26 years and was serving
        about 300 customers. Ex. 5. He has never [had] a complaint
        relating to [the] manner in which he conducted his business. Id.

        3. Mr. Schumaker also served as treasurer of his homeowners’
        association, an unpaid, volunteer position that was neither elected
        nor appointed. Mr. Schumaker held the position because the
        association needed volunteers for various positions due to its small
        size. Tr. 24-25.

        4. In 2011, Mr. Schumaker experienced significant personal issues.
        At a school sporting event on a rainy evening, two young girls ran
        out in front of his car and, because one stopped and the other ran,
        Mr. Schumaker could not avoid hitting one of them and injuring
        her. Tr. l6. The accident exacted a heavy emotional toll on Mr.
        Schumaker and his family. Tr. l6, Tr. 55. It also had a big impact
        on his business. Tr. 16. In addition to the emotional turmoil the
        event caused, Mr. Schumaker incurred expenses because he was
        sued over the accident. Id; Ex. 5.

        5. Mr. Schumaker was expecting a substantial commission check
        and wrote an equally substantial check to pay a medical bill. Tr. l7.
        When the commission check did not arrive, Mr. Schumaker took
        $8300 in homeowner’s association funds for his own use, without
        authorization. Tr. 41. He always intended to pay the money back,
        and no one with the homeowners’ association discovered his
        actions. TR. 17; Ex. 5.

        6. In 2014, the homeowners’ association had bills coming due and
        needed funds. Tr. 18. Mr. Schumaker returned the funds he had
        taken, depositing $9000, which included the $8300 and his own
        dues. Tr. 19-20. He disclosed to the association what he had done
        and how he had corrected it. Tr. 22. He also resigned as treasurer.
        Id.

        7. After hearing Mr. Schumaker’s disclosures, the other members
        of the homeowners’ association deliberated. Id. Tom Mack, a
        neighbor who was present when Mr. Schumaker told the
        homeowners what he had done, noted that Mr. Schumaker was
Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018           Page 6 of 20
        very remorseful. Ex. 2. Mr. Mack and the other home owners
        concluded Mr. Schumaker made a bad decision, but that because he
        informed them, repaid the funds, and was being investigated at
        work, they would not pursue charges. Tr. 22; Ex. 2. According to
        Mr. Mack “Jeff is a very reliable, honest and kind person that had
        made a bad choice.” Ex. 2. Mr. Schumaker’s wife testified how
        out of character the actions were for her husband, describing them
        as “an aberration.” Tr. 56.

        8. One association member was a former registered representative
        (a person who buys or sells securities for a registered broker-dealer)
        and said Mr. Schumaker should report the incident to his broker-
        dealer, so he did. Tr. 24-25. The broker-dealer reported the
        incident to the Financial Industry Regulatory Authority, also
        known as FINRA, a private self-regulatory entity in the securities
        business. Tr. 25.

        9. FINRA began an investigation, which its attorneys pursued
        aggressively. Tr. 27. Mr. Schumaker learned that even if [he]
        avoided being barred from association with FINRA, the process
        would be expensive. Id. He heard from one individual who spent
        approximately $100,000.00 in attorneys’ fees, costs, and fines. Id.
        Accordingly, Mr. Schumaker did not contest or otherwise
        participate in the investigation. Ex. 5. Under FINRA’ rules, non-
        participation leads to a bar against further association with FINRA.
        Id. FINRA’s attorneys and his own counsel assured him he could
        continue in his insurance business, he just could no longer sell
        securities. Tr. 27-28.

        10. After Mr. Schumaker could no longer serve his broker/dealer
        clients, another registered representative, William Novack began
        serving them. Tr. 50. Novack testified Mr. Schumaker’s clients
        “spoke very highly of him.” Id. Novack further testified to his own
        assessment that Mr. Schumaker “did quite well” and “did a very
        nice job in putting things together for his clients.” Id. Novack also
        testified Mr. Schumaker’s clients could be negatively affected if Mr.
        Schumaker could not assist them with their insurance needs. Id. at
        51.


Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018             Page 7 of 20
        11. Mr. Schumaker did not know he was supposed to disclose the
        FINRA bar to the Department until he was in the process of
        renewing his producer’s license. Tr. 31. Question 2 of the
        application asked “Have you been named or involved as a party in
        an administrative proceeding, including a FINRA sanction or
        arbitration proceeding regarding any professional or occupational
        license or registration, which has not been previously reported to
        this insurance department?” Filing No. 10 (ALJ’s Order) p. 2, ¶ 3.
        Mr. Schumaker disclosed the FINRA bar and the circumstances
        leading to it. Ex. l.

        12. On August 12, 2016, the Department notified Mr. Schumaker
        his license would not be renewed in an “Administrative Order —
        Notice of Nonrenewal of License.” Record Doc. 16. The reasons
        given for the non-renewal were that Mr. Schumaker failed to report
        the FINRA suspension within 30 days of its final disposition and
        that he allegedly used “fraudulent, coercive, or dishonest practices,
        or demonstrate[d] incompetence, untrustworthiness, or financial
        irresponsibility in the conduct of business in Indiana or elsewhere,”
        which Ind. Code § 27-1-15.6-12(b)(8) lists as a basis for discipline.
        Id.

        13. Mr. Schumaker timely sought administrative review.

        14. Mr. Schumaker acknowledged his personal use of association
        funds was wrong, but stated the events were caused by extreme
        circumstances not likely to recur and had no relationship to his
        blemish-free, 26-year record in providing services under his Indiana
        insurance producer’s license. He denied the conduct amounted to
        “fraudulent, coercive, or dishonest practices, or demonstrate[d]
        incompetence, untrustworthiness, or financial irresponsibility in the
        conduct of business in Indiana or elsewhere” within the meaning of
        Ind. Code § 27-1-15.6-12(b)(8).

        15. Mr. Schumaker further argued it was arbitrary and capricious
        to refuse to renew his insurance producer’s [license] based on the
        belated disclosure of the FINRA action.




Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018         Page 8 of 20
        16. Mr. Schumaker’s Indiana producer’s license expired on June
        30, 2016, while his application was pending. Record Doc. l6
        (Administrative Order - Notice of Nonrenewal) ¶ 2.

        17. The Honorable Reuben B. Hill, Administrative Law Judge,
        held an evidentiary hearing. Mr. Schumaker presented his own
        testimony, his wife’s, and that of the homeowner and registered
        representative described above. He also presented evidence of his
        most recent Field Office Review Worksheet and a post-audit letter
        stating, “Congratulations! I would like to commend you on how
        well you have been managing the affairs of your branch office. I am
        pleased to inform you that there were no material exceptions found
        during the audit of your branch office. This is a great
        accomplishment and a direct reflection of your commitment to
        excellence.” Ex. 3. Mr. Schumaker also testified he has made
        changes to his business to avoid the extreme financial pressures that
        led to his actions. Tr. 36-37.

        18. Mr. Schumaker is the sole financial supporter for his family,
        which includes his wife, two sons in college, his mother-in-law who
        lives with him, and a young family member placed in their home by
        family services. Tr. l l-12; Tr. 53. Losing his producer income
        would be devastating to the family, Ex. 5; And, at age 53 with 26
        years in the insurance industry, Mr. Schumaker does not know
        what he would do to replace that income. Ex. 5; see also Tr. 37.

        19. At the hearing, the Department took the position that the
        statutory term “fraudulent, coercive, or dishonest practices” was not
        modified by the closing phrase “in the conduct of business in
        Indiana or elsewhere.” In other words, the department took the
        position that Ind. Code § 27-1-15.6-12(b)(8) provided two separate
        bases for discipline:

                 (A) fraudulent, coercive, or dishonest practices; or

                 (B) incompetence, untrustworthiness, or financial
                 irresponsibility in the conduct of business in Indiana or
                 elsewhere.

        Filing No. 10 (ALJ’s Order), Conclusion ¶ 7.

Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018         Page 9 of 20
        20. In his conclusions of law, ALJ Hill noted, but did not resolve
        the different interpretations urged by the parties. Id., Conclusion ¶
        6-7. Instead, he found that “all evidence presented at the hearing
        was that [Mr. Schumaker’s conduct] was a singular issue, out of
        character for Schumaker, and not part of a pattern of deceit or a
        series of ‘practices’ in either his personal or professional life.” Id.
        Conclusion ¶ 8. For the late reporting of the FINRA proceeding,
        ALJ Hill recommended that “the order of nonrenewal be reversed
        under the following conditions:

                 1. Applicant’s independent adjuster’s license shall be granted
                 on a two year probationary basis, during which time,
                 Applicant shall adhere to all insurance laws or the
                 Department will seek immediate revocation of his license.

                 2. Applicant shall pay the sum of One Thousand Dollars
                 ($1,000.00) civil penalty in accordance with Indiana Code
                 27-1-28-18 (e).”

        Id. at p.9.

        21. The Department sought review of ALJ Hill’s Order, arguing its
        interpretation of the statute to the Commissioner and asking for a
        review of ALJ Hill’s finding concerning the payment of interest.
        Filing No. 9. The Commissioner agreed with the Department on
        both issues. Concerning the statutory interpretation issue, the
        Commissioner concluded:

                 The term ‘in the conduct of business in Indiana or
                 elsewhere,’ when used in Ind. Code § 27-1-15.6-12(b)(8),
                 should not be read in conjunction with the terms ‘fraudulent,
                 coercive, or dishonest practices.’ Ind. Code § 27-1-l5.6-
                 12(b)(8) provides the Commissioner the authority to take
                 administrative action when a producer uses fraudulent,
                 coercive, or dishonest practices in any event, whether in the
                 conduct of business in Indiana or not.

        Filing No. 4 (Commissioner’s Final Order of Nonrenewal) ¶ 12.
        The Commissioner did not address the ALJ’s conclusion that a
        single instance of misconduct did not amount to “practices.” Nor

Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018          Page 10 of 20
        did the Commissioner find that any of Mr. Schumaker’s conduct
        occurred “in the conduct of business.” The Commissioner
        concluded that “The appropriate penalty for such a violation is
        refusal to renew the license.” Id.

        22. As a factual matter, the administrative record in this case
        establishes the following:

                 1. The ALJ ruled Mr. Schumaker had not engaged in
                 fraudulent, coercive, or dishonest practices, or even one such
                 practice, but a single isolated instance of dishonesty.

                 2. The Commissioner made no contrary finding, nor would
                 the evidence support a contrary finding.

                 3. Neither the Commissioner nor the ALJ made any finding
                 on the appropriateness of the sanction if the Division could
                 not establish Mr. Schumaker engaged in fraudulent, coercive,
                 or dishonest practices, but established Mr. Schumaker
                 violated a technical reporting requirement by voluntarily
                 disclosing the FINRA action on his next renewal
                 application, rather than within 30 days.

                                       Conclusions of Law

        1. The ALJ ruled Mr. Schumaker did not engage in fraudulent,
        coercive or dishonest practices, whether in the conduct of business
        or otherwise. Filing No. 10 (ALJ’s Order), Concl. ¶ 8. According
        to the ALJ, “all evidence presented at the hearing was that this was
        a singular issue, out of character for Mr. Schumaker, and not part of
        a pattern of deceit or a series of ‘practices’ in either his personal or
        professional life.” Id. The Commissioner did not find otherwise.

        2. Thus, as the record stands, neither the ALJ nor the
        Commissioner found a violation of Ind. Code § 27-1-15-6-12(b)(8).
        The Court owes no deference to the arguments the Commissioner’s
        lawyers make that the record is sufficient to show a violation.
        Instead, the Court owes deference to the ALJ’s finding that no
        violation of that statute occurred and the Commissioner made no
        contrary finding.

Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018          Page 11 of 20
        3. Because neither the ALJ nor the Commissioner found that Mr.
        Schumaker engaged in “fraudulent, coercive or dishonest
        practices,” whether in the conduct of business or otherwise, this
        Court need not decide whether a connection to Mr. Schumaker’s
        business was required. Rather, the fact that, as the ALJ found, Mr.
        Schumaker’s conduct was a single instance of dishonesty, rather
        than “practices,” means that the statutory language is not met.

        4. In addition, the Court finds the Commissioner’s reading of the
        statute implausible. If any dishonest “practice” were a sufficient
        basis for the Commissioner to take action against a licensee, then
        the statute would also sweep in a wide variety of socially and
        personally “dishonest” conduct, such as cheating at golf or in card
        games. Nothing in the statutory text suggests such a broad reading.

        5. Reading the statute to reach isolated instances of dishonesty
        would also render meaningless other subsections of the same
        statute. Subsection (b)(4), for example, authorizes the
        Commissioner to discipline a licensee for “Improperly withholding,
        misappropriating, or converting any monies or properties received
        in the course of doing insurance business.” Ind. Code § 27-1-15.6-12
        (b)(4). If a single instance of misappropriation, whether inside or
        outside the insurance business, violates subsection (b)(8), then
        subsection (b)(4) becomes meaningless.

        6. A Court must give effect “to all of the provisions and words of a
        statute where it is possible.” Read v. Beczkiewicz, 215 Ind. 365, 382,
        18 N.E.2d 789, 796, reh’g denied 19 N.E.2d 465 (1939). Our
        Supreme Court recently reaffirmed that rule multiple times: “No
        word or part of the statute should be rendered meaningless if it can
        be reconciled with the rest of the statute. Indiana Alcohol & Tobacco
        Commission v. Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017)
        (citing West v. Indiana Secretary of State, 54 N.E.3d 349, 353 (Ind.
        2016), which in turn cited Siwinski v. Town of Ogden Dunes, 949
        N.E.2d 825, 828 (Ind. 2011)).

        7. Here, reconciling the statutory provisions gives meaning to the
        General Assembly’s decision that a single misappropriation in the
        insurance business is sufficient basis for action against a license in

Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018             Page 12 of 20
         paragraph (b)(4), and that repeated misappropriations that become
         “practices” need not occur in that context, but only in any kind of
         business, to provide a ground for discipline under paragraph (b)(8).
         But there is not any portion of the statute that makes a single,
         isolated act, not occurring in the insurance business, a ground for
         discipline.

         8. The Commissioner relies heavily on the notion that the Court
         must afford deference to the agency’s interpretation of the statute,
         but even the case the Commissioner cites, Jay Classroom Teachers
         Ass’n v. Jay School Corp., 55 N.E.3d 813 (Ind. 2016), holds that “we
         review an agency’s conclusions of law de novo.” Id. at 816 (Ind.
         2016); see also Indiana Alcohol & Tobacco Comm’n v. Spirited Sales,
         LLC, 79 N.E.3d 371, 375 (Ind. 2017); 813; Moriarity v. Department of
         Natural Resources, 2018 WL 828492, at *3 (Ind. Ct. App. Feb. 13,
         2018). [8]

         9. Deference is only appropriate when an agency’s interpretation of
         an ambiguous statute is reasonable. State v. Mills, 76 N.E.3d 861,
         870 (Ind. Ct. App. 2017). Here, the Commissioner’s interpretation,
         which would apply the statute to isolated, non-business acts of
         dishonesty, such as cheating at cards or golf, and which would
         render Ind. Code § 27-1-15.6-12(b)(4) completely meaningless, is
         not reasonable. Accordingly, the Commissioner’s Order must be
         vacated.

         10. The appropriate remedy in this case is not, however, simply a
         remand. There is no dispute what the facts are or any suggestion
         that they could be found differently on remand. Once the
         Commissioner’s erroneous reliance on Ind. Code § 27-1-15.6-
         12(b)(8) is removed, all that is left of the case is an inadvertent
         failure to report the FINRA suspension, which was voluntarily
         reported, unprompted, on the next renewal application.




8
  The Indiana Supreme Court granted transfer in Moriarity on May 24, 2018, after the trial court issued its
order. See Moriarity v. Ind. Dep't of Nat. Res., 102 N.E.3d 288 (Ind. 2018).


Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018                             Page 13 of 20
        11. It would be unreasonable, and an abuse of discretion, to deny
        the renewal of Mr. Schumaker’s license based on tardiness alone,
        particularly when that tardiness was inadvertent.

        12. At the hearing, Mr. Schumaker’s lawyer suggested that the
        appropriate remedy would be for the Court to order Mr.
        Schumaker’s license renewed, in accordance with the ALJ’s
        proposed order. Unfortunately, the Court cannot order such relief
        and must remand to the Commissioner under Indiana State Bd. of
        Health Facility Adm’rs v. Werner, 841 N.E.2d 1196 (Ind. Ct. App.
        [(2006)]), decision clarified on reh’g, 846 N.E.2d 669 (Ind. Ct. App.
        2006).

        13. While the Court has held that Mr. Schumaker did not engage in
        “fraudulent, coercive or dishonest practices” under the statute, and
        has further found that non-renewal is too harsh a sanction, the
        Commissioner has other remedies he can impose. For example, the
        Commissioner can “reprimand, levy a civil penalty, [or] place an
        insurance producer on probation. . .” Ind. Code § 27-1-15.6-12(b).
        Other statutory sanctions, such as a revocation or suspension are
        either inapplicable in the circumstance where a producer does not
        have a current license or are, like non-renewal, too harsh for a
        minor reporting violation. Nevertheless, the Commissioner must be
        afforded an opportunity to determine whether to reprimand Mr.
        Schumaker or place him on probation and whether to impose a civil
        penalty. That choice belongs to the Commissioner on remand.

                                       Entry of Judgement

        For the reasons stated above, the Petition for Judicial Review is
        GRANTED and this matter is REMANDED for consideration of
        the appropriate penalty short of non-renewal.


Appellant’s Appendix Volume II at 7-17. The Commissioner appeals.




Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018        Page 14 of 20
                                                    Discussion

[7]   The issue is whether the trial court erred in vacating the Commissioner’s

      February 20, 2017 order and remanding for consideration of the appropriate

      penalty. Agency action subject to the Administrative Orders and Procedures

      Act will be reversed only if the court determines that a person seeking judicial

      relief has been prejudiced by an agency action that is arbitrary, capricious, an

      abuse of discretion, or otherwise not in accordance with law; contrary to

      constitutional right, power, privilege, or immunity; in excess of statutory

      jurisdiction, authority, or limitations, or short of statutory right; without

      observance of procedure required by law; or unsupported by substantial

      evidence. Fishburn v. Ind. Pub. Ret. Sys., 2 N.E.3d 814, 821 (Ind. Ct. App. 2014),

      trans. denied; see Ind. Code § 4-21.5-5-14(d). A trial court and an appellate court

      both review the decision of an administrative agency with the same standard of

      review. Fishburn, 2 N.E.3d at 821. The burden of demonstrating the invalidity

      of agency action is on the party to the judicial review proceeding asserting

      invalidity. Id.; Ind. Code § 4-21.5-5-14(a). We give deference to an

      administrative agency’s findings of fact, if supported by substantial evidence,

      but review questions of law de novo. Fishburn, 2 N.E.3d at 821. See LTV Steel

      Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000) (“While an appellate court

      grants deference to the administrative agency’s findings of fact, no such

      deference is accorded to the agency’s conclusions of law.”).


[8]   To the extent we must interpret statutory language, our goal is to determine and

      give effect to the intent of the legislature. Fishburn, 2 N.E.3d at 824. We review

      Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018       Page 15 of 20
       an issue of statutory interpretation de novo. Id. If the statutory language is clear

       and unambiguous, we require only that the words and phrases it contains are

       given their plain, ordinary, and usual meanings to determine and implement the

       legislature’s intent. Id. If a statute is ambiguous, we seek to ascertain and give

       effect to the intent of the legislature. Id. In doing so, we read the act as a whole

       and endeavor to give effect to all of the provisions. Id. Deference to an

       agency’s interpretation of a statute becomes a consideration when a statute is

       ambiguous and susceptible to more than one reasonable interpretation, and an

       agency’s incorrect interpretation of a statute is entitled to no weight. Ind. Horse

       Racing Comm’n v. Martin, 990 N.E.2d 498, 503 (Ind. Ct. App. 2013) (citations

       omitted).


[9]    Ind. Code §§ 27-1-15.6 govern the qualifications and procedures for the

       licensing of insurance producers. Ind. Code § 27-1-15.6-1. An insurance

       producer is a person required to be licensed under the laws of Indiana to sell,

       solicit, or negotiate insurance. Ind. Code § 27-1-15.6-2.


[10]   Ind. Code § 27-1-15.6-12(b) provides:

               The commissioner may reprimand, levy a civil penalty, place an
               insurance producer on probation, suspend an insurance producer’s
               license, revoke an insurance producer’s license for a period of years,
               permanently revoke an insurance producer’s license, or refuse to
               issue or renew an insurance producer license, or take any
               combination of these actions, for any of the following causes:

                        (1) Providing incorrect, misleading, incomplete, or
                        materially untrue information in a license application.


       Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018        Page 16 of 20
                        (2) Violating:
                                 (A) an insurance law;
                                 (B) a regulation;
                                 (C) a subpoena of an insurance commissioner; or
                                 (D) an order of an insurance commissioner;
                        of Indiana or of another state.

                                                      *****

                        (4) Improperly withholding, misappropriating, or converting
                        any monies or properties received in the course of doing
                        insurance business.

                                                      *****

                        (8) Using fraudulent, coercive, or dishonest practices, or
                        demonstrating incompetence, untrustworthiness, or financial
                        irresponsibility in the conduct of business in Indiana or
                        elsewhere.


[11]   Ind. Code § 27-1-15.6-17(a) provides:


               A producer shall report to the commissioner any administrative
               action taken against the producer in another jurisdiction or by
               another governmental agency in Indiana not more than thirty
               (30) days after the final disposition of the matter. The report
               shall include a copy of the order, consent to order, or other
               relevant legal documents.


[12]   The Commissioner asserts that the phrase “in the conduct of business” does not

       apply to “fraudulent, coercive, or dishonest practices” in Ind. Code § 27-1-15.6-

       12(b)(8) and that the statute does not apply solely to the conduct of business.

       The Commissioner argues that the statute applies to a single incident of


       Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018        Page 17 of 20
       dishonesty and that the use of the phrase “fraudulent, coercive, or dishonest

       practices” demonstrates that the use of “practices” refers to more than one type

       of misconduct. The Commissioner further argues that the decision to not

       renew Schumaker’s license was justified given his failure to disclose the FINRA

       action. The Commissioner also argues that the sanction of nonrenewal was

       reasonable and points to Schumaker’s decision to take $8,300 and the resulting

       FINRA bar which he failed to timely disclose to the Department.


[13]   Schumaker maintains that the Commissioner’s interpretation of Ind. Code § 27-

       1-15.6-12(b)(8) is not reasonable and that the absence of any finding or evidence

       that his actions were taken in the conduct of business is fatal to the

       Commissioner’s conclusion. He further maintains that a single instance of

       dishonesty does not constitute “practices” under subsection (8) and that the

       legislature could easily have used language to specify that a single act could

       result in discipline but chose instead to use plural terms and terms that require

       regularity in the conduct. He also argues that it is unreasonable to deny his

       renewal based on an inadvertent failure to report the results of the FINRA

       action within thirty days.


[14]   Ind. Code § 27-1-15.6-12(b)(8) provides the Commissioner may take action with

       respect to a producer’s license for the causes of “[u]sing fraudulent, coercive, or

       dishonest practices, or demonstrating incompetence, untrustworthiness, or

       financial irresponsibility in the conduct of business in Indiana or elsewhere.”

       The ALJ found, and the Commissioner does not dispute, that Schumaker’s

       action of taking funds from his homeowners association did not occur “in the

       Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018     Page 18 of 20
       conduct of business.” Thus, the subsection is inapplicable in this case to the

       extent the phrase “in the conduct of business” modifies each of the causes listed

       in subsection (8). Even assuming the phrase “in the conduct of business” does

       not modify the phrase “[u]sing fraudulent, coercive, or dishonest practices,” we

       note that the ALJ found as noted by the trial court that Schumaker “took $8300

       from the homeowners’ association bank account with the intent to repay it” and

       that, “[w]hile dishonest, all evidence presented at the hearing was that this was

       a singular issue, out of character for Schumaker, and not part of a pattern of

       deceit or a series of ‘practices’ in either his personal or professional life.”

       Appellant’s Appendix Volume II at 37. The evidence supports the conclusion

       that Schumaker’s action of taking money from his homeowners association,

       under the specific circumstances of this case as set forth in the administrative

       record, did not constitute “practices” in Schumaker’s professional or personal

       life which warrant the severe sanction of refusal to renew his insurance

       producer license.


[15]   Also, the ALJ found that Schumaker “made a full and complete disclosure of

       the FINRA bar and the circumstances leading thereto” in his application for

       renewal, and the Commissioner, in its decision, adopted this finding and noted

       that the Department’s objection to the ALJ’s recommended order challenged in

       relevant part the ALJ’s conclusions related to subsection (8), not subsection (1),

       of Ind. Code § 27-1-15.6-12(b). Id. at 35. To the extent that he did not timely




       Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018        Page 19 of 20
       report the FINRA action to the Department and was required to do so,9

       Schumaker testified that, because he was going through everything with

       FINRA, he assumed FINRA shared all of that information with the

       Commissioner, that he did not realize that was something he needed to do as

       well, and that as soon as he went online to complete his renewal he provided an

       explanation for what had happened. We agree that any delay does not merit

       the strict sanction of nonrenewal of Schumaker’s license. We do not disturb the

       trial court’s ruling.


[16]   For the foregoing reasons, we affirm the order of the trial court.


[17]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       9
        As previously noted, Ind. Code § 27-1-15.6-17(a) requires a producer to report an administrative action
       against the producer “in another jurisdiction” within thirty days.

       Court of Appeals of Indiana | Opinion 18A-MI-864 | December 31, 2018                           Page 20 of 20
