STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1223

)

EDWARD BERK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 24, 1979 at Miami, Florida.

APPEARANCES

For Petitioner: Patrick F. Maroney, Esquire

428-A Larson Building Tallahassee, Florida 32301

For Respondent: Richard Golden, Esquire

626 Northeast 124th Street North Miami , Florida 33161

By Administrative Complaint dated May 24, 1979 as amended July 11, 1979, the Florida Department of Insurance, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Edward Berk as an ordinary life agent. As grounds therefor it is alleged in five counts of the Administrative Complaint that Respondent violated various provisions of Chapter 626 , Florida Statues in connection with the sale and handling of insurance policies sold to William R. Schwarz, Lee Schwarz, and Elizabeth Schwarz. It is alleged in the Amended Administrative Complaint that Respondent was convicted, in the U. S. District Court for the Southern District of New York, of a felony involving moral turpitude.

At the commencement of the hearing Petitioner voluntarily dismissed the five counts of the original Administrative Complaint thereby leaving only the count involving the felony conviction. Thereafter three exhibits were admitted into evidence and both parties rested.

FINDINGS OF FACT

1. Edward Berk, Respondent, was at all times here relevant licensed as an ordinary life, including disability, insurance agent to represent Founders Life Assurance Company, Standard Security Life Insurance Company of New York, American Variable Annuity Life Assurance Company, Wisconsin Life Insurance Company, Columbian Mutual Life Insurance Company, and Lone Star Life Insurance

   Company. He is licensed as a disability insurance (2-40) agent to represent American Family Life Assurance Company of Columbus and an ordinary life (2-16) agent to represent Estate Life Insurance Company of America. (Exhibit 1).

   
   

2. On April 12, 1979 Respondent pleaded guilty in the U. S. District Court for the Southern District of New York of violation of 18 USC 1341 and 1342 to wit: unlawfully, willfully and knowingly devising and intending to devise a scheme and artifice to defraud and to obtain money from The Travelers Insurance Company by means of false and fraudulent pretenses, representations , and promises. He was found guilty and sentenced to two years imprisonment on each of five counts, the sentences to run concurrently. The execution of the sentence was suspended and Respondent was placed on probation for a period of two years (Exhibits 2)

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

4. Section 626.611, Florida Statutes provides in pertinent part: The Department shall . . . suspend, revoke,

   or refuse to renew or continue the license of

   any agent . . . if it finds after notice and hearing thereon . . . that as to the . . . licensee . . . any one or more of the following applicable grounds exist:

   * * *

   (14) The applicant, licensee, or permittee has been found guilty of, or has pleaded guilty or nolo contendere to, a felony in this state or any other state which involves moral turpitude, without regard to whether a judgement of conviction has been entered by the court having jurisdiction of such cases.

   
   

5. Section 626.621 Florida Statutes provides the department may revoke or suspend a license if the licensee has been found guilty of a felony.

   
   

6. 18 U. S. Code, Section 1, provides that any offense punishable by death or imprisonment for a term exceeding one year is a felony. The maximum term of imprisonment authorized for the offenses described in 18 USC 1341 and 18 USC 1342 is five years. Accordingly the offenses for which Respondent was found guilty are felonies.

   
   

7. In State ex rel Tullige v. Hollingsworth, 146 So. 660 (Fla. 1933) the court stated at p. 661:

   
   

   Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or man to society. It may also be defined as anything done contrary to justice, honesty, principle or good morals, though it often involves a question of intent . . . .

   (citation omitted)

8. In State ex rel Munch v. Davis, 196 So 491 (Fla. 1940) the court held the sale of spurious or fake licenses and the use of the mails in accomplishing the sale was the gravamen of the offense of using the mails to defraud for which the licensee had been convicted in Federal court; and this offense involved moral turpitude.

   
   

9. In Carp v. Florida Real Estate Commission, 211 So.2d 240 (Fla. 3rd DCA 1968) the court held the crime of bookmaking, which is a misdemeanor, involved moral turpitude and revocation or suspension of the registration of a real estate broker was authorized.

   
   

10. Most felonies and all offenses which include elements of fraud involve moral turpitude. The offenses of which Respondent was found guilty involved moral turpitude.

    
    

11. From the foregoing it is concluded that Edward Berk was convicted of a felony involving moral turpitude and his license is subject to disciplinary action authorized by Section 626.611 Florida Statutes. It is therefore

RECOMMENDED that the license of Edward Berk be suspended for a period of two years.

ENTERED this 18th day of September, 1979, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1979.

COPIES FURNISHED:

Patrick F. Maroney, Esquire 428-A Larson Building Tallahassee, Florida 32301

Richard Golden, Esquire 626 Northeast 124th Street

North Miami, Florida 33161

Docket for Case No: 79-001223

Orders for Case No: 79-001223