Marlene Caride, Etc. v. Paul B. Kumar

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2627-21

MARLENE CARIDE,
COMMISSIONER, NEW JERSEY
DEPARTMENT OF BANKING
AND INSURANCE,

Petitioner-Respondent,

v.

PAUL B. KUMAR,

Respondent-Appellant.
_______________________________

Argued October 31, 2023 – Decided December 29, 2023

Before Judges Whipple, Mayer and Paganelli.

On appeal from the New Jersey Department of Banking
and Insurance, Docket No. OTSC #E18-54.

Michael James Confusione argued the cause for
appellant (Hegge and Confusione, LLC, attorneys;
Michael James Confusione, of counsel and on the
briefs).

Richard E. Wegryn, Jr., Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorneys; Donna Sue Arons,
 Assistant Attorney General, of counsel; Telge
Nadeesha Peiris, Deputy Attorney General, on the
brief).

PER CURIAM

Appellant Paul B. Kumar appeals from a final agency decision of

Commissioner of the Department of Banking and Insurance (Commissioner or

Department), revoking his insurance producer license and imposing $60,774.25

in civil penalties, surcharge, attorney's fees and costs of investigation, for

violations of the New Jersey Insurance Producer Licensing Act of 2001

(Producer Act), N.J.S.A. 17:22A-26 to -48; N.J.A.C. 11:17A-4.2; and the New

Jersey Insurance Fraud Prevention Act (Fraud Act), N.J.S.A. 17:33A-1 to -30.

We affirm.

I.

We derive the facts from the record developed at the hearing conducted in

the Office of Administrative Law (OAL). Since October 1, 2008, Kumar was a

licensed insurance producer in the State of New Jersey.

"On August 3, 2015, Kumar entered into an employment contract with

Combined Insurance Company (Combined)." For any insurance policy to be

written, Combined requires: the producer to meet, face to face, with the

insurance applicant; the applicant to sign the application; and the producer to

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witness the applicant's signature on the application. These requirements were

never waived and applied to Kumar.

Combined provided Kumar with a lead sheet for an existing customer,

Joseph Hunsicker. The lead sheet "listed Joseph's address as 124 W. Farrell

Ave, Apt. A2, Trenton, New Jersey . . . ." On September 23, 2015, Kumar and

Joseph met at Joseph's home in Ewing, New Jersey. Kumar submitted insurance

applications to Combined on Joseph's behalf. Joseph referred Kumar to family

members, including: Ronald Hunsicker, his brother; Kathleen Seibert, Ronald's

wife; Robin Hunsicker, Ronald's daughter; and Robert Hunsicker, Ronald's son.1

On November 7, 2015, Kumar submitted an insurance application to

Combined on behalf of Ronald. However, Ronald had advised Kumar that he

did not need insurance because "he had coverage from his employer."

Moreover, Ronald "never met Kumar, never applied for insurance with

Combined and never signed the applications in Kumar's presence." Indeed, on

the day Kumar submitted Ronald's application, Ronald and Kathleen were

"enroute to a vacation in Mexico." Further, this application contained the

"incorrect spelling of [Kathleen]'s first name, her incorrect legal last name and

1
Since there are a number of individuals with the last name Hunsicker we refer
to them by their first name. We intend no disrespect.
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3
her incorrect birthdate." Moreover, the insurance application erroneously listed

his address as Joseph's from the lead sheet even though Ronald resided in

Delaware.

"On December 9, 2015, Kumar submitted a second insurance application

to Combined for Ronald." Again, the insurance application listed his wrong

address and contained Ronald's incorrect height and weight.

Also on December 9, Kumar submitted an insurance application to

Combined on behalf of Kathleen. However, Kathleen "never met Kumar, never

applied for insurance with Combined, and never signed any applications for

insurance in the presence of Kumar." The insurance application "erroneously

listed her address [as Joseph's from the lead sheet] even though [Kathleen]

resided in Delaware"; "incorrectly listed [Kathleen]'s height, weight, and the

existence of prior life insurance."

Kumar submitted an insurance application to Combined on behalf of

Robin on November 7, 2015, and two more on December 16, 2015. However,

"Robin never met Kumar, never applied for insurance with Combined, and never

signed any applications for insurance in the presence of Kumar." The November

7 application listed Robin's wrong date of birth; the first December 16

application listed her wrong "middle initial, birthdate, height and weight and

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that she did not have insurance"; and the second December 16 application listed

the wrong "middle initial, birthdate, occupation, employer, height and weight,

income and physician." When Robin discovered the insurance applications were

submitted, she sent "a letter to Combined requesting [for] Combined to cancel

the policy."

"On November 2, 2015, Kumar submitted two insurance applications to

Combined for Robert." While Robert provided Kumar with "his name, address

and date of birth . . . he never applied for a policy, never met Kumar, and never

signed the two applications submitted by Kumar under his name."

Dana Camadine (Camadine), Combined's manager of its compliance

department, "became aware of the applications upon her review of the weekly

compensation report." The applications were listed on the report because they

were above a designated dollar threshold. She initiated an investigation.

Ultimately, she "prepared an investigative report which concluded that Kumar

violated company policy by submitting fraudulent applications to the company."

Kumar "was terminated for violation of Combine[d]'s zero tolerance policy."

"When Kumar was terminated, a referral was made to the State for insurance

fraud . . . ."

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 On May 28, 2018, the Department issued a two-count Order to Show

Cause (OTSC) to Kumar concerning the insurance applications. In the first

count, the Department alleged violations of the Producer's Act, N.J.S.A.

17:22A-40a(2), (5), (7), (8), (10), and (16); and N.J.A.C. 11:17A-4.2 because

Kumar did not "witness the signature[s] of prospective insured[s]; did not have

. . . face to face meeting[s] with the prospective insured[s] with regard to the

application prior to submitting it, and forged the prospective insureds' signatures

on the applications."

In the second count, the Department alleged violations of the Fraud Act,

N.J.S.A. 17:33A-4a(3) and 4a(4)(b), because Kumar "submitted . . . insurance

policy applications to Combined . . . for the purpose of obtaining an insurance

policy, knowing that each of these applications contained a forged signature of

the prospective insured, and other false or misleading information concerning

any fact or thing material to the application or contract . . . . "

The Department demanded that Kumar show cause why: his New Jersey

insurance producer license should not be suspended or revoked pursuant to

N.J.S.A. 17:22A-40a; civil penalties should not be assessed under the Fraud Act,

N.J.S.A. 17:33A-5(c) and N.J.A.C. 11:16-7.9(a); a surcharge should not be

imposed under N.J.S.A. 17:33A-5.1; civil penalties should not be assessed under

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N.J.S.A. 17:22A-45(c); costs of the investigation and prosecution, including

attorney's fees, should not be reimbursed pursuant to N.J.S.A. 17:22A-45(c),

N.J.S.A. 17:33A-5(c) and N.J.A.C. 11:16-7.9(a).

Kumar disputed the charges, and the Department transmitted the matter to

the OAL for hearing as a contested case. The ALJ held hearings on August 12,

13, 19, and September 3, 2020. At the conclusion of the hearings, the ALJ issued

a thorough fifty-three-page decision.

The ALJ made detailed findings regarding the witnesses' credibility.

There were several witnesses summoned to testify: Camadine; Nicholas

Catalano (Catalano), Combined's market director; Eugene Shannon (Shannon),

the Department's investigator; Ronald; Kathleen; and Robin; and Kumar and his

current supervisor from a different employer.

The ALJ found "Camadine, Catalano and Shannon to be credible

witnesses who provided consistent and believable testimony. Their testimony

was professional, clear, direct, and consistent with the record."

The ALJ found the testimony of Ronald, Kathleen, and Robin credible.

The ALJ determined that "[a]ll three witnesses provided consistent, clear, and

direct testimony," and noted that nothing "in any of the witnesses' tone,

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expression, or demeanor" lead him to conclude that anyone "was not being

truthful."

To the contrary, the ALJ found Kumar's "entire testimony was not

credible, and not believable." The ALJ concluded

[Kumar] demonstrated throughout these proceedings
that his inconsistent, evasive and confusing testimony,
along with the remarkable refreshment of his
recollections that support his version of the events at
issue from September to December of 2015 cannot be
believed.

Turning to the merits, the ALJ found "by any measure, the submission of

[eight] application[s] for insurance under the applicant's name, without their

knowledge, outside their presence, and without their consent, render[ed] the

entire application[s] fraudulent." Therefore, the ALJ concluded, the Department

met its burden by demonstrating that Kumar submitted eight fraudulent

applications for insurance. Further, "knowing that each of the applications

contained a forged signature of the prospective insured and other false or

misleading information," there was "no doubt that Kumar knew that he

submitted applications with forged signatures and materially false information

to Combined in order to obtain insurance policies."

The ALJ concluded that Kumar's actions warranted revocation of his

producer license; the imposition of statutory monetary penalties; reimbursement

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of investigation costs; and attorney's fees. In determining the amount of the

monetary penalty, the ALJ made detailed findings and concluded that: (1)

Kumar acted in "bad faith" by "submit[ting] eight insurance applications"

without: meeting with the alleged applicants; the alleged applicants' knowledge

or consent; obtaining the alleged applicants' signatures; and witnessing their

signatures and "submit[ting] the[] fraudulent applications which contained

forged signatures, to Combined in order to obtain insurance policies" ; (2) a

moderate penalty was appropriate; (3) Kumar did not obtain any profit; (4) the

public was injured because Kumar's actions violated a fiduciary trust; (5) the

activity only lasted a short duration; (6) there were no criminal charges or treble

damages action; and (7) Kumar had no prior Producer or Fraud Act violations.

(citing Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 137-39 (1987)).

The ALJ imposed a penalty of $1,250 for each of the eight Producer Act

violations; $1,250 for each of the eight Fraud Act violations; $1,000 surcharge

under the Fraud Act; $9,774.25 for the costs of the investigation and

prosecution under the Fraud Act; and attorney's fees of $35,000 under the

Producer Act, for a total penalty of $65,774.25.

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 On March 30, 2022, the Commissioner rendered a comprehensive

seventy-six-page final decision.2 The Commissioner reviewed the ALJ's

decision and recommendation, and the exceptions and replies filed by the

parties. The Commissioner found "no basis on which to reject the ALJ's

credibility determinations because there [wa]s no specific evidence on which

to overturn the ALJ's credibility findings." Additionally, the Commissioner

concluded "the ALJ's reasoning for his credibility determinations was

thorough, detailed and persuasive."

The Commissioner adopted the ALJ's determination that "the

Department proved . . . [Kumar] violated N.J.S.A. 17:22A-40(a)(2), (5), (7),

(8) and (16) and N.J.A.C. 11:17A-4.2" in the transactions with Ronald,

Kathleen and Robin. She also adopted "the ALJ's determination that the

Department did [not] prove that [Kumar] violated N.J.S.A. 17:22A-40(a)(10)

(forging another's name to an application)."

Further, the Commissioner adopted the ALJ's finding that the Department

established Kumar violated the Fraud Act, because he "knowingly concealed

2
On April 5, 2022, the Commissioner executed an order amending the final
decision. She corrected a typographical error that indicated that the Department
had proved Kumar violated N.J.S.A. 17:22A-40(a)(10) by forging another's
name. In all other respects the final decision remains in full force and effect.
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10
that he met with Ronald, [Kathleen], and Robin and failed to disclose that they

did not sign their applications," N.J.S.A. 17:33A-4(a)(3), and because he

"submitted insurance applications that he knew contained false or misleading

information regarding material facts," N.J.S.A. 17:33A-4(a)(4)(b).

The Commissioner rejected the ALJ's determination regarding the

insurance applications involving Robert. She noted that Robert did not testify

at the ALJ hearing and that the only evidence surrounding Robert's applications

was "based on uncorroborated hearsay."

The Commissioner adopted the ALJ's recommendation to revoke Kumar's

producer license. Moreover, while conducting her own analysis, she agreed with

the ALJ's weighing of each of the Kimmelman factors. The Commissioner

adopted the ALJ's recommendation that Kumar pay $1,250 per violation of both

the Producer Act and the Fraud Act. However, she reduced the number of

Kumar's violations to six per act, twelve total, removing Robert's two

applications. Accordingly, the Commissioner ordered Kumar to pay $7,500 for

the six violations of the Producer Act; $7,500 for the six violations of the Fraud

Act; $1,000 surcharge under the Fraud Act; $9,774.25 for investigation and

prosecution costs under the Fraud Act; and $35,000 in attorney's fees under the

Producer Act, for a total monetary penalty of $60,774.25.

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 II.

Our scope of review of an administrative agency's final determination is

limited. In re Herrmann, 192 N.J. 19, 27 (2007). "[A] 'strong presumption of

reasonableness attaches'" to the agency's decision. In re Carroll, 339 N.J. Super.

429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App.

Div. 1993)). Decisions "made by an administrative agency entrusted to apply

and enforce a statutory scheme" are reviewed "under an enhanced deferential

standard." E. Bay Drywall, LLC v. Dep't of Labor and Workforce Dev., 251

N.J. 477, 494 (2022). This deference is particularly appropriate when the agency

adopts the ALJ's findings because the ALJ, and not the agency, has the

opportunity to hear live testimony and judge the witnesses' credibility. Clowes

v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).

Thus, we will "not disturb an administrative agency's determinations or

findings unless there is a clear showing that[:] (1) the agency did not follow the

law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the

decision was not supported by substantial evidence." In re Application of

Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422

(2008). The burden is upon the appellant to demonstrate grounds for reversal.

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).

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 Administrative penalties "must be tested for reasonableness as applied to

the specific facts involved." In re Garay, 89 N.J. 104, 115 (1982). To determine

reasonableness, courts assess "whether [the] punishment is so disproportionate

to the offense, in light of all circumstances as to be shocking to one's sense of

fairness." In re License Issued to Zahl, 186 N.J. 341, 354 (2006) (quotation

omitted). Our Supreme Court outlined seven factors for consideration when

imposing civil penalties: (1) the good or bad faith of a defendant; (2) a

defendant's ability to pay; (3) amount of profits obtained from the illegal

activity; (4) injury to the public; (5) duration of the conspiracy; (6) existence of

criminal or treble damages actions; and (7) past violations. Kimmelman, 108

N.J. at 137-39.

Applying these principles, we discern no basis for disturbing the

Commissioner's reasoned determination.

A.

N.J.A.C. 11:17A-4.2 provides:

In cases where an applicant's signature is required, an
insurance producer who takes an application for
insurance shall be required to witness the signature of
the prospective insured on the application prior to
submission of the application to the insurer only when
the application is signed by the applicant after having
been completed in a face to face meeting between the

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13
 producer and the prospective insured. This requirement
may be waived, however, upon prior written
authorization by the insurer.

Kumar argues the failures to "witness the signature of the prospective

insured" and "have face to face meeting with the prospective insured with regard

to the application before submitting it" are not violations of the Producer Act

because that "conduct is not conduct that violates the laws and regulations

imposed on an insurance producer (the witnessing and meeting)."

As to witnessing, Kumar avers the Commissioner "misstated the

regulation" by "omit[ting] the critical 'only' from the language." Kumar

interprets the regulation to require "witness[ing] only when the application is

signed by the applicant after having been completed in a face to face meeting

. . . ." Therefore, noting the "Commissioner affirmed the ALJ's finding that . . .

Kumar and the three applicants in question did not meet in person . . . the

witnessing requirement of N.J.A.C. 11:17A-4.2 did not apply." In further,

support of his argument, Kumar cites to NJ Bulletin No. 2009-113 for the

proposition that the regulation "require[d] witnessing only when a face to face

meeting is conducted and only when required by the insurer." Again, he argues,

3
New Jersey Bulletin No. 2009-11, "N.J.A.C. 11:17A-4.2 INSURANCE
PRODUCER TO WITNESS SIGNATURE OF INSURED" (April 13, 2009).
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14
since no face to face meeting took place, he could not be in violation of the

"witness" requirement.

Moreover, Kumar asserts that there can be no violation of the "face to

face" meeting requirement because such meetings are not required. Kumar

again relies on NJ Bulletin No. 2009-11 for the proposition that there is a

"changed environment . . . in light of ever-changing technological advancements

permitting electronic communications and submissions of applications" and

"amendment of in person witnessing of signature[s]."

We find Kumar's interpretation of the regulation unavailing. The

language of the regulation empowers the insurer to control the requirements for

insurance applications. The regulation provides for the insurer's authority by

permitting a waiver of the requirements but only "upon prior written

authorization by the insurer." N.J.A.C. 11:17A-4.2. Kumar acknowledges the

insurer's authority in his cite to NJ Bulletin No. 2009-11 where he notes the

regulation "require[s] witnessing only when a face to face meeting is conducted

and only when required by the insurer." (emphasis added). Therefore, we find

the Commissioner correctly interpreted the regulation and followed the law. In

re Virtua, 194 N.J. at 422.

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15
 Moreover, Combined required Kumar to meet face to face, purportedly

with Ronald, Kathleen and Robin, the insurance applicants; have them sign their

applications for insurance; and have Kumar witness their signatures. Combined

never waived those requirements and Kumar failed in every respect. Therefore,

the Commissioner's finding that Kumar violated N.J.A.C. 11:17A-4.2 was "[not]

arbitrary, capricious, or unreasonable and was supported by substantial

evidence." Ibid.

B.

The Producer Act provides, in relevant part:

a. The commissioner may . . . revoke . . . an insurance
producer's license or may levy a civil penalty in
accordance with subsection [N.J.S.A. 17:22A-45] of
this act or any combination of actions, for any one or
more of the following causes:

(2) Violating any insurance laws, or violating any
regulation, subpoena or order of the commissioner or of
another state's insurance regulator;

....

(5) Intentionally misrepresenting the terms of an actual
or proposed insurance contract, policy or application
for insurance;

....

(7) Having admitted or been found to have committed
any insurance unfair trade practice or fraud;

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 ....

(8) Using fraudulent, coercive or dishonest practices,
or demonstrating incompetence, untrustworthiness or
financial irresponsibility in the conduct of insurance
business in this State or elsewhere;

....

(16) Committing any fraudulent act;

....

[N.J.S.A. 17:22A-40]

Here, the Commissioner determined that Kumar "submitted six

applications for three separate individuals without the applicants' knowledge or

consent." The "applications were rife with false information, [not attributable

to mere sloppiness or inattention to detail], including basic information such as

the applicants' birthdates[] and names." The Commissioner noted, for example,

there was no explanation for Kumar having "an entirely different last name" for

[Kathleen]; or "why [Kathleen] would sign her first name incorrectly and give a

different last name"; or "how he met with Ronald on November 7, 2015 when

Ronald . . . was traveling to Mexico that day."

Ultimately, the Commissioner adopted the ALJ's determination that the

Department proved violations of N.J.S.A. 17:22A-40(a): (2) violating any

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insurance law or any regulation; (5) intentionally misrepresenting the terms of

an insurance contract, policy or application; (7) committing any insurance unfair

trade practice or fraud; (8) fraudulent, coercive or dishonest practices, or

demonstrating incompetence, untrustworthiness or financial irresponsibility;

and (16) any fraudulent act.

Kumar repeats his arguments regarding the interpretation of N.J.A.C.

11:17A-4.2 and avers that "[b]ecause th[]e wrongs the Department charged

under Count One . . . are not wrongs at all under governing rules and regulations

(the witnessing and meeting charges), the Producer Act charge under Count One

fails as a matter of law . . . ." Kumar asserts "[t]he Commissioner cannot declare

that . . . [he] violated the Producer Act . . . for other claimed wrongs that are not

set forth in the Department's [OTSC] without violating . . . [hi]s due process

rights . . . ."

In response, the Commissioner states

Kumar was acting as an agent for Combined. . . . [T]he
Combined policies that Kumar obtained did not provide
any benefit to Ronald, [Kathleen], and Robin. The
applicants never applied for the policies and Kumar
fraudulently submitted the applications under their
names. As such, Kumar's submission of each
application constituted not only a violation of N.J.A.C.
11:17A-4.2, but also a violation of Kumar's fiduciary
duty to the applicants to obtain their consent and
authorization to obtain the coverage.

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We are persuaded by the Commissioner's argument. As we already stated, there

is ample evidence to sustain the Commissioner's finding that Kumar violated

N.J.A.C. 11:17A-4.2.

Moreover, there is "sufficient evidence" in the record to sustain the

Commissioner's decision as to the violations of the Producer Act, including

N.J.S.A. 17:22A-40(a)(2), (5), (7), (8), and (16).

Kumar's argument that these "other claimed 'wrongs' . . . were not charged

in the O[TSC] . . . . [and] would, [therefore,] violate [his] due process rights" is

unavailing. The OTSC specifically cited each section of the statute and detailed

the allegations of Kumar's concerning behavior. "Fundamentally . . . [t]he

minimum requirements of due process . . . are notice and the opportunity to be

heard." Doe v. Poritz, 142 NJ. 1, 106 (1995). (citations omitted). Here, these

requirements were met, Kumar suffered no violation of his due process rights.

Finding no merit to Kumar's interpretation of the regulation, N.J.A.C.

11:17A-4.2 and sufficient evidence that Kumar violated N.J.S.A. 17:22A-

40(a)(2), (5), (7), (8), and (16) and N.J.A.C. 11:17A-4.2, we affirm the

Commissioner's findings and determinations that Kumar violated the Producer

Act.

C.

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 The Commissioner determined that Kumar violated the Fraud Act,

N.J.S.A. 17:33A-1 to -30. She stated,

the evidence show[ed] that [Kumar] submitted six
applications for three separate individuals without the
applicants' knowledge or consent. The applications
were rife with false information, including basic
information, such as the applicants' addresses,
birthdates and names. The applicants did not sign these
applications. . . . [Kumar] was undoubtedly aware that
he submitted applications with materially false
information to Combined in order for these policies to
be issued.

Therefore, the Commissioner concluded that the Department proved the

following violations:

N.J.S.A. 17:33A-4(a)(3) (conceals or knowingly fails
to disclose the occurrence of an event which affects any
person's initial or continued right or entitlement to (a)
any insurance benefit or payment or (b) the amount of
any benefit or payment to which the person is entitled)
because . . . [Kumar] knowingly concealed that he met
with Ronald, [Kathleen], and Robin and failed to
disclose that they did not sign their applications.

. . . also . . . that . . . [Kumar] violated N.J.S.A. 17:33A-
4(a)(b)(4) (makes any written or oral statement,
intended to be presented to any insurance company or
producer for the purpose of obtaining an insurance
policy, knowing that the statement contains any false or
misleading information concerning a material fact)
because . . . [Kumar] submitted insurance applications
that he knew contained false or misleading information
concerning material facts.

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 Kumar argues that the Commissioner erred in finding he violated the

Fraud Act because: (1) the Commissioner found he never met with the three

purported insurance applicants and it was not established that he forged their

signatures, therefore, there is no "substantial credible evidence . . . that [he]

submitted the applications 'knowing' they contained forged signatures"; (2) there

is no "event" that Kumar "concealed or knowingly failed to disclose" that

"affect[ed]" the purported insurance applicants' "initial or continued right or

entitlement to any (a) insurance benefit or payment or (b) the amount of any

benefit or payment, N.J.S.A. 17:33A-4(a)(3)"; and (3) Kumar's misstatements

were not "material to an insurance application or contract." N.J.S.A. 17:33A-

4(a)(b)(4). We find Kumar's arguments unavailing.

Kumar argues there is no substantial evidence in the record to support the

Commissioner's finding that he knowingly submitted the insurance applications

with forged signatures. His argument misstates the Commissioner's finding.

The Commissioner actually found "[t]he applicants did not sign these

applications. . . . [and Kumar] was undoubtedly aware that he submitted

applications with materially false information to Combined in order for these

policies to be issued." There is substantial evidence in the record that Kumar

never met with the three purported insurance applicants and submitted the

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unauthorized applications with their claimed signatures. While the

Commissioner did not find Kumar was the forger, that finding does not discount

her finding that he never met with the applicants and submitted insurance

applications with their signatures knowing they never signed the applications.

There is substantial credible evidence to support the Commissioner's finding.

Next, Kumar argues that there was no "event" that he "concealed or failed

to disclose" that "affected" the insurance applications. He limits the

Commissioner's finding to the "applications were rife with false information,

including basic information, such as the applicants' addresses, birthdates, and

names" and argues it does not establish an "event" or if it is an "event" the

Department failed to establish the incorrect information "'affected' the

applicants' entitlement to coverage or benefits." However, this argument fails

to appreciate that Kumar "concealed or knowingly failed to disclose" his

submission of unauthorized insurance applications. There is substantial credible

evidence to support the Commissioner's finding that Kumar violated N.J.S.A.

17:33A-4(a)(3).

Further, Kumar argues that his misstatements were not "material to an

insurance application or contract." N.J.S.A. 17:33A-4(a)(b)(4). He avers that

"incorrect heights, weights, addresses, etc., were not proven to have been

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material." However, his argument understates the Commissioner's

determination. The Commissioner found Kumar "submitted insurance

applications that he knew contained false or misleading information concerning

material facts." That finding was not limited to the plethora of erroneous

information contained in the unauthorized applications, but also included the

submittal of the actual unauthorized applications. The submittal of the

unauthorized applications themselves was material "false and misleading

information." N.J.S.A. 17:33A-4(a)(b)(4). There is substantial credible

evidence to support the Commissioner's finding.

D.

Kumar requests we "vacate the revocation of license . . . imposed under

N.J.S.A. 17:22A-40." He also argues that the "penalties, fines, and attorney's

fees transgress the analysis of Kimmelman."

Under the Producer Act, N.J.S.A. 17:22A-40, "[t]he [C]ommissioner may

. . . revoke . . . an insurance producer's license or may levy a civil penalty in

accordance with [N.J.S.A. 1:22A-45] or any combination of actions, for any one

or more of the following causes" listed therein. Here, we affirm the

Commissioner's finding that Kumar violated N.J.S.A. 17:22A-40(2), (5), (7),

(8), and (16).

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 After detailing her "duty to protect the public welfare and to instill public

confidence in both insurance producers and the industry as a whole," the

Commissioner found "the record is more than sufficient to support license

revocation and compels the revocation of [Kumar's] license." She noted Kumar

"fraudulently produced six applications for three separate individuals without

the applicants' knowledge or consent. These applications contained a myriad of

false information, including basic information such as names, addresses and

dates of birth."

Kumar acknowledges the "substantial deference to the Commissioner's

determination," but argues since he: "held his producer license since 2008 . . .

without any prior incidents or charged misconduct"; "ceased practicing" "[o]nce

the disciplinary charges in this matter were lodged"; "was not permitted to

practice for more than five years during which time he had no income in this

field"; and "continued to comply with all his licensing requirements," he has

suffered "proportionate punishment for the violations." He avers "[p]ermanent

revocation is 'so disproportionate to the offense, in light of all the circumstances,

as to be shocking to one's sense of fairness,'" and warrants our intervention,

quoting Matter of Polk, 90 N.J. at 578. In addition, Kumar refers to punishments

levied in other matters and argues that his conduct did not rise to the level that

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required revocation and something short of revocation should have been

imposed as was done in other cases. Further, he argues that progressive

discipline, "discipline based in part on the consideration of past conduct can be

a factor in the determination of the appropriate penalty for present misconduct ."

We find Kumar's arguments unavailing. The statute specifically

authorizes the Commissioner to revoke the "insurance producer's license."

N.J.S.A. 17:22A-40. In fact, the statute allows for revocation for "any one . . .

of the" causes listed therein and we affirm five—N.J.S.A. 17:22A-40(2), (5),

(7), (8), and (16). Moreover, Kumar's no longer practicing, following the

lodging of the disciplinary charges, does not mitigate the conduct that led to the

charges. Finally, his reliance on his past conduct or how others were punished

for their failures is of no moment considering his behavior here. The

Commissioner's decision is entitled to deference and will not be disturbed.

Kumar also argues that the Commissioner's assessment of "penalties,

fines, and attorneys' fees transgress the analysis of Kimmelman." We disagree.

While the Commissioner agreed with the ALJ's analysis of the

Kimmelman factors, she conducted her own review. She concluded certain

factors weighed in favor of a higher penalty for Kumar, such as: his acting in

bad faith, violating the public trust; and absence of criminal charges or other

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sanctions. She found other factors weighed in favor of a lesser penalty for

Kumar: he received no profit from his wrongful conduct; the short duration of

his activity; and lack of prior Producer Act violations. Further, in relation "to

his ability or inability to pay a civil penalty" the Commissioner weighed this

factor to impose "a moderate monetary penalty."

Kumar accepts the Commissioner's findings on those factors that weigh in

favor of a lesser penalty and failed to address the Commissioner's findings on

those factors that weigh in favor of a higher penalty. As to his ability to pay, he

merely relies on the same argument he made to the Commissioner, he "has no

ability to pay the excessive fines and penalties in light of his 'virtually no savings

to his name' and his limited income earned." However, after noting Kumar bore

the burden of proving he had no "ability to pay civil penalties," and that he failed

to offer evidence on this subject, the Commissioner determined the factor only

warranted a moderate penalty. We have no reason to disturb the Commissioner's

analysis.

The Producer Act, N.J.S.A. 17:22A-45(c) provides:

Any person violating any provision of this act shall be
liable to a penalty not exceeding $5,000 for the first
offense and not exceeding $10,000 for each subsequent
offense . . . . In addition, the commissioner . . . may
order . . . reimbursement of costs of investigation and
prosecution, as appropriate.

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N.J.A.C. 11:17A-4.11 states "[t]he Commissioner shall impose penalties for

violations of this subchapter[, including N.J.A.C. 11:17A-4.2(a)] in accordance

with the provisions of N.J.S.A. 17:22A-26 . . . .[,]" the Producer's Act.

In addition, the Fraud Act, N.J.S.A. 17:33A-5(b) and -5(c), and N.J.S.A.

17:33A-5.1, provide:

if a person violates [17:33A-4] the penalty shall be
$5,000 for the first violation, $10,000 for the second
violation and $15,000 for each subsequent violation.
. . . In addition, the [C]ommissioner court shall also
award court costs and reasonable attorney's fees to the
commissioner.

[N.J.S.A. 17:33A-5(b).]

The Commissioner is authorized to assess a civil and
administrative penalty of not more than $5,000 for the
first violation, $10,000 for the second violation and
$15,000 for each subsequent violation . . . .

[N.J.S.A. 17:33A-5(c).]

In addition to any other penalty, fine or charge imposed
. . . a person who is found in any legal proceeding to
have committed insurance fraud shall be subject to a
surcharge in the amount of $1,000. . . .

[N.J.S.A. 17:33A-5.1.]

The Commissioner imposed a penalty of $1,250 for each of Kumar's six

violations of the Producer Act, and $1,250 for each of his six violations of the

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Fraud Act. She also imposed a $1,000 surcharge. In total, Commissioner

imposed a total statutory penalty of $16,000. This amount is fully supported in

the record, is substantially less than the maximum penalty allowed, and therefore

will not be disturbed.

In addition to monetary penalties, the Commissioner ordered Kumar to

reimburse $9,772.15 for the costs of the investigation and $35,000 in attorney 's

fees. Kumar asserts the investigation amount is "excessive" but the amount was

supported by the investigator's certification. Thus, we find no error in the award.

Moreover, Kumar argues the Commissioner's award of attorney's fees of

$35,000 is "excessive." We note the ALJ had reduced the attorney's fees from

the requested amount of $77,353.50 to $35,000. The Commissioner observed

that the "amount is reasonable and less than half of the amount that could be

ordered." We find no error in the award.

Affirmed.

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