STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY BOND TABER, )

)

Petitioner, )

)

vs. ) Case No. 85-3354

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing by the undersigned, as modified by an Order of Continuance dated December 5, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Tallahassee, Florida, on December 17, 1985. The issue for consideration was whether Respondent should deny Petitioner's application for examination and license as an ordinary life and health agent in Florida.

APPEARANCES

For Petitioner: Bernard F. Daley, Jr., Esquire

P. O. Box 1177

Tallahassee, Florida 32302

For Respondent: David G. Poucher, Esquire

Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301 BACKGROUND INFORMATION

On August 30, 1985, the Petitioner was advised by letter from Respondent's Bureau of Licensing that his application for examination and license as a ordinary life, including health, agent was denied because of his prior plea of nolo contendere to a felony involving possession of cannabis with intent to sell.

Thereafter, on September 19, 1985, through counsel, Petitioner requested a formal hearing. On October 17, 1985, the file was forwarded to the Director, Division of Administrative Hearings, for appointment of a hearing officer and the case was set for

hearing on December 5, 1985. However, because of illness, the Petitioner was unable to appear at the hearing which was then continued until December 17, 1985.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Little McGowan Hudgins, District Sales Manager for Family Life Insurance Co., in Tallahassee. Petitioner also offered into evidence, without objection, Petitioner's Exhibits 1 and 2, written statements in his behalf. Respondent presented no testimony or documentary evidence but both parties entered into a Pre-hearing Stipulation which is dispositive of most issues of fact.

Petitioner submitted a post-hearing letter which, while summarizing the legal and factual agreements made at hearing, did not set out Proposed Findings of Fact. Respondent's Proposed Recommended Order contained one Proposed Finding of Fact which is accepted and adopted herein.

FINDINGS OF FACT

1. On June 30, 1983, Petitioner, Timothy Bond Taber, entered a plea of nolo contendere to the charge of sale, delivery, or possession of cannabis with intent to sell, which is defined as a third degree felony by Section 893.13, Florida Statutes, in the Circuit Court for Leon County, Florida. On the basis of his plea, he was found guilty as charged and, inter alia, placed on probation for three years. However, on August 29, 1983, upon Motion by Mr. Taber, the judge entered an Order deleting the adjudication of guilt and withholding adjudication. The probation and other aspects of the prior action were not disturbed.

   
   

2. Petitioner explained the facts and circumstances leading up to his arrest which took place in Tallahassee on, January 28, 1983. At that time, Petitioner, who was a 19 year old high school graduate who had lived in Tallahassee for seven years, was working for U-Haul. His co-defendant in the criminal case was his U-Haul supervisor who, at the time, was on a work release program from the Leon County Jail. He was also engaged in repeated sales of marijuana and convinced Petitioner to allow him to store his stock of marijuana in Petitioner's car and to hold the money from the sales. Petitioner admits to being engaged in this activity but denies any sales himself. He now knows his actions were a big mistake and he deeply regrets his participation in them. He has no other criminal history.

   
   

3. In addition to the probation, Petitioner was sentenced to community service the term of which was subsequently reduced due to his good behavior. There is some indication his probation

   officer will recommend termination of his probation one year early due to his good behavior.

   
   

4. After leaving U-Haul, where he had worked for five years, Petitioner went to work as a trainee for Mr. Hudgins, District Manager in Tallahassee for Family Life Insurance Co. Mr. Hodgins observed Petitioner carefully during the training period. He found Petitioner epitomized the good qualities looked for by his company to represent it in insurance sales. Integrity is a watchword in the insurance industry and Mr. Hudgins does not see anything in Petitioner's past which would show he does not have this requisite integrity. In fact, Mr. Hudgins sees traits in Petitioner, such as honesty, drive, and a desire to help, which would lead to success in the field.

   
   

5. When Petitioner made his application for employment with Mr. Hudgins' company, he answered "no" to the question regarding any prior convictions, since the question does not relate to arrests. Even knowing of Petitioner's misconduct, Mr. Hudgins does not consider Petitioner is disqualified. In his opinion, because Petitioner was young when he made a mistake he should not be perpetually tarred because of it.

   
   

6. These sentiments are echoed in the statement of a co- worker of Petitioner's at U-Haul who has know him for six years and who has recently hired him to work at Ryder Truck Rental. Mr. Earlywine has had many compliments from customers and co- workers about Petitioner's outstanding work and business ethics. These qualities were also recognized by Joan O'Steen, a Deputy Sheriff in Hillsborough County, who is convinced that Petitioner is a strong and morally superior individual.

   
   

7. On the basis of the above, it would appear, therefore, that Petitioner is neither unfit nor untrustworthy at this time.

   
   

8. On June 28, 1985, Petitioner submitted to Respondent an application for filing for examination as an ordinary life, including health, agent. At question 11, he properly indicated he had been charged with a felony but not convicted. On the basis of his plea, however, on August 30, 1985, the chief, Bureau of Licensing for Respondent, denied Petitioner's application.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Respondent has denied Petitioner the opportunity to sit for the license examination on the basis of the provision of Section 626.785(1): 626.611(1) (7) (14), and 626.621(8) Florida Statutes all of which deal with the criteria for granting or denying

   licenses.

   
   

10. Section 626.611 requires the department to deny a license to an applicant if it finds that the applicant:

    
    

    1. Lacks one or more of the qualifications for the license as specified in the code;

       
       

       (7) Has demonstrated a lack of fitness or trust worthiness to engage in the business of insurance; and

       
       

       (14) Pleaded nolo contendere to a felony which involves moral turpitude.

       
       

11. Section 626.621 (8) authorizes the department to deny a license to an applicant if it finds that he had pleaded nolo contendere to a felony, even if that felony does not involve moral turpitude. Further, Section 626.785(1) indicates that the department shall not issue a license as a life agent to anyone who is "untrustworthy or incompetent."

    
    

12. Petitioner, at the age of 19, committed one indiscretion which at that time would indicate his untrustworthiness. There has been no repetition of this or any other evidence of misconduct since. To the contrary, he has demonstrated rehabilitation to the satisfaction of the court which reduced his obligated tour of community service of and his probation officer who apparently is to recommend early termination of his probation. His current and former supervisors consider him trustworthy as does a law enforcement official. It would appear, therefore, that as of the present time, Petitioner would not be disqualified under this particular provision of the statute nor of Section 626.611(7).

    
    

13. There is no issue as to whether Petitioner entered a plea of nolo contendere to a felony, as alleged. The issue is whether the felony to which Petitioner pled guilty involves moral turpitude. If it does, under the provision of Section 626.611(14) the Department has no discretion in the matter but must deny the application. If it does not, then discretion may be exercised under Section 626.621(8).

    
    

14. It is not necessary to resolve that question here, however. Assuming, arguendo, that the felony is not one involving moral turpitude and, therefore, the Respondent may exercise discretion in permitting Petitioner to sit for the examination or not, it is quite clear that the agency has wide discretion in interpreting a statute which it administers and that interpretation will not be set aside unless clearly

    erroneous. A reviewing court will defer to any interpretation within the range of possible interpretations. DHRS vs. Wright,

    439 So. 2d 937 (Fla. 1st DCA 1983), Pan American World Airways, Inc. v. Florida Public Service Commission and Florida Power and Light Company, 427 So. 2d 716 (Fla. 1983).

    
    

15. The Respondent takes the position, and rightly so, that the insurance business is one greatly affected by the public trust. Since Respondent is charged with the oversight of that public trust, it would, in the absence of a clear showing that its interpretation of the situation is erroneous, be patently improper to hold that it has abused its discretion in denying Petitioner a license. Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984). Petitioner's counsel's arguments are well made and his point well taken. However, it is not counsel who has the burden of maintaining the public trust and insuring the public interest is served. Those functions are within the purview of the agency and absent a clear showing of an abuse of discretion, the agency's determination must be sustained.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that Petitioner's application to sit the examination for licensing as an ordinary life, including health, agent be denied.

RECOMMENDED in Tallahassee, Florida, this 21st day of January, 1986.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986.

COPIES FURNISHED:

Honorable William Gunter

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32301j

Bernard F. Daley, Jr., Esquire

P. O. Box 1177

Tallahassee, Florida 32302

David G. Poucher, Esquire Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

Docket for Case No: 85-003354

Orders for Case No: 85-003354