vs. ) Case No. 86-0993
Respondent. )
Final Hearing in the above styled action was held in Orlando, Florida on May 15, 1986 before Mary Clark, Hearing Officer of the Division of Administrative Hearings.
The parties were represented as follows: For the Petitioner: Gary J. Boynton, Esquire
For the Respondent: David G. Poucher, Esquire
This proceeding commenced when Charles Siplin made his timely request for formal hearing in response to Respondent's February 11, 1986 letter denying his application for qualification and licensure as a temporary ordinary combination life and disability agent and his application for examination as "ordinary combination life including disability agent".
The issue is whether Petitioner's 1978 plea of guilty to first degree manslaughter in New York is a valid ground for either compulsory or discretionary license denial.
At the final hearing Mr. Siplin testified in his own behalf and no other witnesses appeared. By stipulation a joint composite exhibit was admitted into evidence, which exhibit included a Certificate of Disposition from the New York Supreme Court for the County of Bronx, a pre-sentence investigation report, New York's Certificate of Relief from Disabilities, Petitioner's Application for Examination as insurance agent and Department of Insurance denial letter.
After the hearing Respondent submitted its Proposed Recommended Order with proposed findings of fact and conclusions of law. These have been considered
and have been incorporated, where appropriate, in this Recommended Order. Only two findings of fact were proposed; these have both been adopted in paragraphs 2 and 3, below.
Charles Siplin is forty-five years old and currently resides in Winter Garden, Florida. He was born and raised near Orlando, the sixth of eight children. His parents worked as school bus drivers and maintained a stable self-sufficient home. Except for Charles, the Siplin siblings have not been arrested and have mostly made satisfactory social adjustments. (Joint Exhibit #1, P.S.I.)
On April 14, 1978, Charles Siplin pleaded guilty to first degree manslaughter in Bronx County, New York, and was sentenced to state prison for a term of 0-15 years (Joint Exhibit #1, Certificate of Disposition). He served five years and ten months. (T-17)
The crime to which Mr. Siplin pleaded guilty was the stabbing death of his wife and serious injury of his father-in-law. The incident resulted from a heated domestic quarrel over Siplin's desire to see his four year old son and his wife's demand for money for the son to attend private school. The Siplins had been separated for several months and the wife and child were living with her father. (Joint exhibit #1, P.S.I.)
Charles Siplin had never been in trouble with the law before. He had a high school education and stable employment history. He served a three-year tour in the Army and was honorably discharged. From 1963 until he was indicted in 1976, he worked for the New York City Transit Authority as a bus dispatcher. (Joint Exhibit #1, P.S.I. T-14) While in prison he took advantage of various educational and training programs, including legal research, optical training, and printing, and obtained college credits in different areas. He set up programs for assisting inmates who were Vietnam veterans to upgrade their military discharges and he and an assistant represented the veteran inmates before the military boards. (T-19, 20) During his period of incarceration he worked his way from maximum security to medium, then minimum security and eventually achieved work release. He had no disciplinary violations. (T-19,20) While in prison he took classes from an insurance broker, who was a fellow inmate, and he set a personal goal of working in the insurance field when he got out and could apply for a license. (T-26)
After returning to Florida in 1984, Charles Siplin obtained employment selling cars and has since been steadily employed. He currently is working in an insurance office and is managing an 80-unit apartment complex. (T-25, 27-28, Joint Exhibit #1, Department of Insurance Application for filing for Examination)
On June 20, 1985, Mr. Siplin was issued a Certificate of Relief from Disabilities from the New York State Board of Parole. The certificate indicates that it is considered permanent and "...removes all legal bars and disabilities to employment, license and privilege except those imposed under Sections 265.01(4) and 400.00 of the Penal Law". (Joint exhibit #1, Certificate of Relief from Disabilities) The referenced sections of New York Law relate to possession and license to carry or possess firearms.
Charles Siplin remains on parole under the supervision of a local parole officer. He is eligible to apply for early dismissal from parole in about 10 months and his total term of parole is five years. (T-23-30)
Charles Siplin's attitude is summarized in the following excerpt from his testimony:
"Okay, I accepted the fact that there was a crime, I was involved with it, okay. My wife died behind it, my father-in-law was hurt behind it. I'm not trying to say that didn't happen, it did happen, but I accepted it, okay?
I have no -- when you say no remorse, okay, there is. I, you know, feel very bad about it. I don't feel that it's ever going to happen again in my life, because I've realized one thing. That was a crime against society, and a life was taken, you know, but I can't bring that life back. What I can do is continue to do good. I'm not saying I'm perfect, but I can do the best I can.
I also feel that I'm a changed person. That was like a nightmare. Something happened in my life that night, and I can't make any excuses for it, just something happened. I hope it happens no -- I wouldn't want that to happen to anybody. It's just something that changed my whole life.
But today I understand, I have a clear mind, and, you know, and it doesn't affect me, it doesn't affect my ability to think. I can be a productive citizen within any society. I feel I can go anyplace and be a productive citizen, and do the right thing and abide
by the law, and I will do that.
But again, I'm not perfect and I know this, but I'll try my best."
He was a credible witness. While he states he enjoys sales and meeting and dealing with people (T-25,26), his case as presented through his own testimony was not a "hard sell" but rather a simple story of the catastrophic event that took a life, injured another and sent him to prison.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
The Department of Insurance in its February 11, 1986 letter based its denial of licenses to Charles Siplin on Sub-Sections 626.611(1),(7), and (14), and 626.621(9) Florida Statutes:
626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representative's, supervising or managing general agent's, or claims investigator's permit. The department shall deny, suspend, 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:
(1) Lack of one or more of the qualifications for the license or permit as specified in this code.
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(7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
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(14) Having been found guilty of or having pleaded guilty of 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 added)
626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representative's, supervising or managing general agent's, or claims investigator's permit. The department may, in its discretion, deny, suspend, 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 may 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 under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s.626.611:
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8) Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of
such cases. (emphasis added)
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As applicant, Charles Siplin has the burden of proving his entitlement to the desired license. J.W.C. Company, Inc., v. Department of Transportation,
396 So 2d 778 (Fla. 1st DCA 1981). He claims that the killing of his wife and injury to her father was self defense, that the guilty plea was the result of a plea bargain and pressure by his wife's family to avoid going to court. Even so, he accepts the plea as a matter of record and presented his otherwise unblemished background and commendable efforts at rehabilitation as evidence of his fitness to be licensed.
First degree manslaughter is a felony involving moral turpitude. Moral turpitude involves duties owed by man to society, as well as acts
'contrary to justice, honesty, principle or good morals.' Pearl v. Florida Board of Real Estate, 394 So 2d 189, (Fla 3rd DCA 1981), citing State ex rel. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933). As addressed at length in Pearl, supra, not all crimes involve moral turpitude. However, a first degree manslaughter conviction in New York state was held to be a crime of moral turpitude in U.S. ex rel Sollano v. Doak, 5 F. Supp 561 (D.C.N.D.N.Y. 1933). In that case an alien in the heat of passion and as the result of a quarrel, shot his father-in-law with a revolver. The court rejected the alien's argument that absence of intent necessarily implies absence of moral turpitude. If intent had been present, the crime would have been murder, not manslaughter. If the act had been self defense there would be no crime at all. "... But one who uses a dangerous weapon like a revolver not in self defense but in such a way as to cause the death of another, must be held so lacking in sense of moral responsibility as to be morally depraved and his act to be one involving moral turpitude." p. 565.
Charles Siplin's certificate of Relief from Disabilities would allow him to apply for licensure as an insurance agent in New York. It is not a pardon and does not prevent a licensing body from relying on the conviction as a basis for discretionary denial of any license, permit or other authority or privilege. A certificate may be issued by the court or by the board of parole so long as the individual is convicted of no more than one felony, the relief is consistent with the rehabilitation of the eligible offender, and the relief is consistent with the public interest. See Article 23, N.Y. State Correction law, New York Consolidated Laws Service, Sections 700, 701, 703.
Florida terms its analogous process, "restoration of civil rights". The process requires the submittal of names of qualified persons to the Governor and Cabinet by the Parole and Probation Commission. Section 940.06 F.S. In order to qualify, a convicted felon must have a full pardon, serve the maximum term of his sentence, or be finally released by the Parole and Probation Commission. Section 940.05 F.S.
Even with the restoration of civil rights, an individual may still be barred from licensure if the crime of which he was convicted is a felony directly related to the specific occupation or profession for which the license is sought. See Section 112.011(1)(b) F.S.
It is not necessary in this proceeding to determine whether Charles Siplin's crime directly relates to the insurance business and sales. 1/ Since Petitioner is still on parole he has not had his civil rights restored in Florida. This leaves him "having pleaded guilty to a felony in this state or any other state which involves moral turpitude ..." and his application for license is barred by the provisions of Section 626.611(4) F.S.
That a Final Order be entered denying Petitioner Charles Siplin's application for license as insurance agent.
DONE AND ORDERED this 8th day of July, 1986, at Tallahassee, Florida.
FILED with the Clerk of the Division of Administrative Hearings this 8th day of July, 1986.
1/ However, the crimes most often associated directly with insurance generally involve calculated planning and premeditation.
David G. Poucher, Esquire Legal Division
Gary J. Boynton, Esquire 1150 Louisiana Avenue
