STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM EDWARD ANDREWS, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3221

) DEPARTMENT OF INSURANCE ) AND TREASURER, DIVISION ) OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on November 7, 1985 in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: David L. Levy, Esq.

P. O. Box 5167

Largo, Florida 34294-5167

For Respondent: Richard D. Tritschler, Esq.

413-B Larson Building Tallahassee, Florida 32301

ISSUE

The issue for determination at the final hearing was whether the Petitioner's application for registration as a service warranty association sales representative should have been granted.

PROCEDURAL BACKGROUND

By letter dated August 12, 1985, the Respondent, Department of Insurance and Treasurer, informed the

Petitioner that his application for qualification and registration as a service warranty association sales representative was denied. The Petitioner, by letter dated August 28, 1985, challenged the denial of his application and requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes (1983). This cause came on for final hearing on November 7, 1985. The Petitioner testified in his own behalf. Respondent's exhibits 1-4 were offered and duly admitted into the record.

The Respondent 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

1. The Petitioner, William E. Andrews, currently resides in Largo, Florida with his wife and one child. He is employed as an Assistant Manager at T.V. Stereo Town, Inc. located in Largo, Florida.

   
   

2. On April 22, 1985, the Petitioner filed with the Department of Insurance an application for qualification and registration as a Service Warranty Association Sales Representative. The application specified that the Petitioner would represent T.V. Stereo Town, Inc.

   
   

3. On April 9, 1983, the Petitioner entered a plea of guilty in the Circuit Court of Pinellas County to the offense of Grand Theft. The Court withheld adjudication of guilt and placed the Petitioner on probation for a period of three (3) years. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The Petitioner was represented by counsel.

   
   

4. On June 9, 1982, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Battery. The Petitioner was adjudicated guilty and was sentenced to a 10 day suspended jail term and supervised probation for a period of six months. The Petitioner was not represented by counsel.

   
   

5. On May 13, 1983, the Petitioner entered a plea of guilty in the County Court of Pinellas County to the offense of Obtaining Property in Return for a Worthless Check. The Court withheld adjudication and placed the

   Petitioner on unsupervised probation for a period of 60 days. The Petitioner was ordered to make restitution to the victim as a special condition of probation. The amount of the check was thirty-five dollars. The Petitioner was not represented by counsel.

   
   

6. The grand theft charge involved theft of money and/or inventory from a business which the Petitioner and his ex-wife, Virginia Martin were involved with. The business consisted of a free standing display, or kiosk, which was set up in the middle of the Sunshine Mall in Pinellas County. The parent company was D & P Creations and the business involved gift shop merchandise. The Petitioner and Ms. Martin had an arrangement with D & P Creations wherein they would receive 20% of gross sales generated by the display. The business was opened on November 17, 1983 and closed on December 26, 1983. The loss in inventory and/or money to the parent company amounted to approximately $3,000.

   
   

7. Throughout the operation of the business, the Petitioner worked as a desk clerk at the Gulf Sands Beach Resort Hotel. The Petitioner's ex-wife, Virginia Martin, worked as a bus driver for the Pinellas County School System. The Petitioner's wife actually ran the business, but Petitioner looked in on it from time to time.

   
   

8. The Petitioner, upon considering advice of legal counsel, pled guilty to the offense of Grand Theft from D & P Creations.

   
   

9. Virginia Martin, the Petitioner's ex-wife, was the victim of the battery charge to which Petitioner pled guilty. The battery occurred while the Petitioner and Ms. Martin were dating and before they were married.

   
   

10. Petitioner and his ex-wife, Virginia Martin, maintained a joint account during the period when Petitioner pled guilty to obtaining property in return for a worthless check. The amount of the check was $35.00.

    
    

11. The Petitioner and Virginia Martin were married in July of 1983; they were divorced in December of 1983.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject of, this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

13. Pursuant to Chapter 634, Florida Statutes (1983), The Department of Insurance is charged with the responsibility of regulating service warranty associations and service warranty sales representatives. A service warranty is defined as "any warranty, guaranty, extended warranty or extended guaranty, contract agreement, or other written promise under the terms of which there is an undertaking to idemnify against the cost of repair or replacement of a consumer product in return for the payment of a segregated charge by the consumer . . ." Section 634.401(14) Florida Statutes (1983). A service warranty association is defined as "any person . . . issuing service warranties"; a sales representative is any person utilized by an insurer or service warranty association for the purpose of selling or issuing service warranties. Section 634.401(13) & (15), Florida Statutes (1983).

    
    

14. A service warranty association sales representative must be licensed by the Department of Insurance. Section 634.422, Florida Statutes (1983) states:

    
    

    "The department shall deny . . . the registration of any sales representative if it is found that any one or more of the following grounds applicable to the sales representative exist:

    
    

    (5) Demonstrated lack of fitness or trustworthiness to engage in the business of service warranty . . .

    
    

    (11) Being found guilty of or pleading nolo contendere to a felony involving moral turpitude, in this state or any other state, without regard to whether judgment of conviction has been entered by the court having jurisdiction of such case."

    
    

15. In addition, Section 634.423, Florida Statutes provides that:

    
    

    "The department may deny . . . the registration of any sales representative if it is found that any one or more of

    the following grounds applicable to the sales representative exist under circum

    stances for which such denial . . . is not mandatory under s. 634.422: . . .

    
    

    (6) Being found guilty of or pleading guilty or nolo contendere to a felony in this state or any other state, without regard to whether judgment of conviction has been entered by the court having jurisdiction of such case."

    
    

16. The Respondent, Department of Insurance, established by competent substantial evidence that the Petitioner, William Edward Andrews, entered a plea of guilty to Grand Theft. Grand Theft is a felony in the State of Florida. Section 812.014(2), Florida Statutes (1983). In State ex rei. Tullidge v. Hollings-worth, 146 So. 660,661, (Fla. 1933), the Court stated that:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . It has also been defined as anything done contrary to justice, honesty, principle or good morals . . .

    
    

17. While it is unclear whether the facts underlying Petitioner's guilty plea to Grand Theft involve "inherent baseness or depravity", it is clear that Grand Theft is contrary to justice, honesty and principle. In Soetarto v. Immigration and Naturalization Service, 516 F.2d 778,780 (7th Cir. Ct. App. 1975), the Court stated that: "[t]heft has always been held to involve moral turpitude, regardless of the sentence imposed or the amount stolen." Although the Petitioner denied committing the crime and stated that he pled guilty mainly for "convenience", a guilty plea remains the strongest form of proof known to the law. Because the Petitioner was represented by counsel and pled guilty in open court, it must be concluded that there was a factual basis for his guilty plea.

    
    

18. Thus, pursuant to Section 634.422(11), Florida Statutes (1983), the Petitioner's application for registration as a service warranty association sales representative must be denied. Having concluded that denial is mandatory on the basis of Petitioner's plea of guilty to Grand Theft, it is unnecessary to consider whether Petitioner's misdemeanor convictions for the offenses of Battery and Obtaining Property in Return For a

Worthless Check constitute "demonstrated lack of fitness or trustworthiness to engage in the business of service warranty."

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is:

RECOMMENDED THAT the Department of Insurance issue a final order denying William E. Andrew's application for registration as a service warranty association sales representative.

DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON 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 17th day of December, 1985.

APPENDIX

Respondent's Proposed Findings of Fact: Finding Ruling

1. Accepted, see R.O. paragraph 3.

2. Partially accepted; see R.O. paragraph 3. Matters not contained therein are rejected as

   conclusions of law.

3. Partially accepted; see R.O. paragraphs 6, 7 and 8.

   Matters not included therein are rejected as argument and conclusions of law.

   
   

4. Accepted; see R.O. paragraph 4.

   
   

5. Accepted; see R.O. paragraph 5.

   
   

6. Rejected as argument and conclusions of law.

COPIES FURNISHED:

Richard D. Tritschler, Esq.

Department of Insurance and Treasurer

413-B Larson Building Tallahassee, Florida 32301

Don Dowdell, Esq. General Counsel

The Capitol, Plaza Level Tallahassee, Florida 32301

David L. Levy, Esq.

P. O. Box 5167

Largo, Florida 34294-5167

Hon. William Gunter State Treasurer and

Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301

Docket for Case No: 85-003221

Orders for Case No: 85-003221