STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4124

)

STEVEN ALLEN MILLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an Administrative Hearing was held before William R. Caved, Hearing Officer with the Division of Administrative Hearings on August 19, 1985, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lisa S. Santucci, Esquire

Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

For Respondent: Thomas F. Woodsy, Esquire

Gatlin Woods, Carlson & Girtman 1030 East Lafayette Street Tallahassee, Florida 32301

By an Administrative Complaint dated October 25, 1984 and filed on November 26, 1984 with Division of Administrative Hearings, Petitioner seeks to revoke the license or eligibility for licensure of Respondent or otherwise discipline the Respondent's license or eligibility for licensure. As grounds therefor, it is alleged that Respondent violated sections 626.611 and 626.621, Florida Statutes, when he pleaded nolo contendere to a felony offense which involved moral turpitude.

Petitioner did not offer the testimony of any witnesses. Petitioner's Exhibits Nos. 1, 2 and 3 were received

into evidence.

Respondent testified on his own behalf. Respondent's Exhibits Nos. 1 and 2 were received into evidence.

There were no pending motions to be considered at the time of the hearing but Respondent at the hearing moved to dismiss the charges brought pursuant to section 626.611, Florida Statutes, on the grounds "that the statute itself is unconstitutional in that it violates the Due Process clause of the Florida and Federal Constitutions, and on the further ground that it preempts the separation of powers by military action to the Court by action of the Legislature." The motion was denied.

The parties submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found:

1. At all times material to these proceedings, Respondent was a licensed Ordinary Life, including Disability Agent, doing business as Steven Miller Insurance and Associates located at 718 Broadway, Suite 2, Daytona Beach, Florida.

   
   

2. On June 2, 1983, the Respondent was charged by a Criminal Information in Case No. 83-2219-CC with two (2) felony counts, Count I being presentation of a fraudulent insurance claim, in violation of section 817.234, Florida Statutes, and County II being grand theft of the second degree, in violation of section 812.014, Florida Statutes.

   
   

3. On January 5, 1984, the Respondent entered a plea of nolo contendere to the felony offense of Grand Theft of the Second Degree, a Third Degree Felony, Case No. 83-2219-CC, in the Circuit Court for the Seventh Judicial Circuit of Florida in and for Volusia County, Florida.

   
   

4. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit accepted Respondent's plea of Nolo Contendere and placed Respondent on three (3) years of supervised probation, withholding adjudication of guilt and imposition of sentence.

   
   

5. On July 8, 1985, Respondent was discharged from probation after successfully completing eighteen (18) months of his three (3) year probationary period.

   
   

6. Respondent's testimony was that: (1) his boat, a 24- foot Regal Royal was taken while parked across from his home just prior to June 29, 1982; (2) he reported the theft to the Daytona Beach Police Department on June 29, 1982; (3) he filed an insurance claim several months after reporting the theft to the police and was paid; (4) approximately one (1) year later his boat was found in the possession of his wife's sister and her husband; and (5) he plead nolo contendere to the charge of grand theft on advice of counsel that a plea of nolo contendere was the same as pleading innocent, would not affect his insurance license and the plea would avoid putting a strain on his marriage. Mainly this testimony went unrebutted by the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1), Florida Statutes.

   
   

8. By Statute, the entry of a plea of nolo contendere to a felony offense which involves moral turpitude is grounds for compulsory revocation or suspension of an agent's license or eligibility for licensure without regard to whether a judgment of conviction has been entered by the Court. Section 626.611(14), Florida Statutes, provides as follows:

   The department shall deny, suspends revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:

   * * *

   (14) Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases. [Emphasis supplied.]

   
   

9. Respondent argues that Holland v. Florida Real Estate Commission, 352 So. 2d 914 (Fla. 2d DCA 1977) is controlling and that Holland prohibits the suspension of a license based upon a plea of nolo contendere when adjudication of guilt is withheld. Unlike the situation in Holland, the Legislature has clearly provided the Department of Insurance with statutory authority to take disciplinary action when an agent pleads nolo contendere to a felony offense which involves moral turpitude regardless of the adjudication of guilt. Also, the statutory language under which Holland was decided was subsequently amended and a plea of nolo contendere under the amended statute is considered a conviction for purposes of disciplinary action.

   
   

10. Here, the record is clear that Respondent entered a plea of nolo contendere to the felony offense of grand theft.

    
    

11. Does the crime of grand theft involve moral turpitude? The Court in Pearl v. Florida Board of Real Estate, 395 So. 2d 189, 191, (Fla. 3d DCA 1981), after analyzing the definition of moral turpitude as set forth by the Supreme Court of Florida in State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (Fla. 1933), found "that moral turpitude involves duties owed by man to society as well as acts `contrary to justice, honesty, principal, or good morals.'" There is no doubt that the crime of grand theft involves moral turpitude. Soetarto v. Immigration and Naturalization Service, 576 F.2d 778 (7th Circuit 1975).

    
    

12. The Petitioner has met its burden of proof that Respondent violated section 626.611(14), Florida Statutes, by pleading nolo contendere to the crime of grand theft which involves moral turpitude even though the court withheld adjudication of guilt and the imposition of sentence. Accordingly, Petitioner has established grounds for disciplinary action.

RECOMMENDATION

Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Respondent be found guilty of violating section 626.611(14), Florida Statutes. For such violation, considering the

circumstances surrounding the violation, it is RECOMMENDED that the Petitioner enter a final order suspending the Respondent's license for a period of two (2) years.

DONE and ENTERED this 24th day of October, 1985, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 24th day of October, 1985.

APPENDIX

Rulings on Petitioner's Proposed Findings of Fact:

1. Adopted in Finding of Fact No. 1.

2. Adopted in Finding of Fact No. 2.

3. Adopted in Finding of Fact No. 3.

4. Adopted in Finding of Fact No. 4 with the exception of the language that "Respondent was sentenced." Petitioner's Exhibit No. 3 specifically states that sentence was withheld and Respondent was placed on probation.

5. Rejected on a conclusion of law rather than a proposed finding of fact.

6. Adopted in Finding of Fact No. 5 with the exception of the date July 1, 1985. Respondent's Exhibit No. 2 shows the order was entered on July 8, 1985.

Rulings on Respondent's Proposed Findings of Fact: (Respondent did not number the paragraphs in his Proposed Findings of Facts but for purposes of this Appendix a number has been assigned to each paragraph.)

1. This information was considered as background information and, therefore, covered in the background portion of this Recommended Order.

2. Adopted in Finding of Fact No. 1.

3. This information was considered as background information and, therefore, was covered in the background portion of this Recommended Order.

4. The information in the first sentence was considered as background information and, therefore, was covered in the background portion of this Recommended Order. The second sentence is Respondent's interpretation of what Petitioner alleges and is not a finding of fact but more a conclusion of law.

5.-6. Other than as adopted in Finding of Fact No. 6, rejected as immaterial, unnecessary and unsupported hearsay.

7. Adopted in Finding of Fact Nos. 4 and 5 with the exception of the language "after completing six months he was released." Petitioner's Exhibit No. 2, Respondent's Exhibit No. 2 and Respondent's testimony on lines 15-19, page 15 of the transcript shows Respondent served eighteen (18) months of his probationary period.

COPIES FURNISHED:

Lisa Santucci, Esquire 413-B Larson Building

Tallahassee, Florida 32301

Thomas F. Woods, Esquire

Gatlin, Woods, Carlson & Girtman 1030 East Lafayette Street Tallahassee, Florida 32301

Honorable William Gunter

Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol - Plaza Level

Tallahassee, Florida 32301

Docket for Case No: 84-004124

Orders for Case No: 84-004124