STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL A. CUSMANO, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2384

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties by the undersigned on July 21, 1986, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Fort Lauderdale, Florida on September 19, 1986. The issue for consideration was whether Petitioner's application for licensure as a company adjuster was properly denied because of his prior conviction.

APPEARANCES

Petitioner: Paul A. Cusmano, pro se

6912 Southwest 18th Court Pompano Beach, Florida 33065

Respondent: William W. Tharpe, Jr., Attorney Legal Division

413-B Larson Building Tallahassee, Florida 32399-0300

BACKGROUND INFORMATION

By letter of May 29, 1986, the Department denied Petitioner's application for licensure as an Independent, Public or Company Employee Adjuster, because of his prior conviction of a felony involving moral turpitude. Thereafter, Petitioner, on June 12, 1986, filed a request for formal hearing which was forwarded to the Division of Administrative Hearings for referral to a Hearing Officer on June 26, 1986.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Arthur A. Sallah, a long-term business and social associate; Gerald Morano, brother of the victim and former employer of Petitioner; George S. Patterson, a friend and business client; and Anthony S. Cusmano, Petitioner's father. Petitioner also introduced Petitioner's Exhibit A. Respondent called no witnesses but introduced Respondent's Exhibits 1 and 2.

The transcript of the proceedings was received in the Division of Administrative Hearings on September 29, 1986. Respondent submitted post- hearing proposed Findings of Facts which are accepted and incorporated herein.

FINDINGS OF FACT

1. On January 20, 1986, Petitioner, Paul A. Cusmano, filed an application for Filing for Examination as an Independent, Public or Company Employee Adjuster with the Department of Insurance.

   
   

2. Because of the conviction mentioned below, the Department of Insurance denied Petitioner the opportunity to take the examination by letter dated May 29, 1986.

   
   

3. The records of the Circuit Court for Palm Beach County, Florida reflect that on August 29, 1984, a criminal Information was filed in Case No. 84-6169F charging Petitioner with Grand Theft in violation of Section 812.014 (1)(2)(b), Florida Statutes based on his alleged theft of a check in the amount of

   $9,557.30.

   
   

4. Grand Theft is an offense involving moral turpitude.

   
   

5. Petitioner was found guilty as alleged by the court on April 22, 1985 and on June 3, 1985, the Judge withheld adjudication of guilt and placed him on probation for a period of 18 months.

   
   

6. In comments made in open court at the time of the sentencing, the Judge indicated in his opinion the situation arose out of a legitimate dispute over a debt owed by the victim of the theft to the Petitioner, and should be the subject of civil litigation. He indicated he had no choice but to find Petitioner guilty because of the way Petitioner chose to handle the situation. The Judge commented he felt the Petitioner was not a criminal, and since the question of restitution was discretionary, chose not to order restitution.

   
   

7. Petitioner's business associates and friends are uniform in their favorable assessment of him and are convinced he is neither of a criminal bent nor dishonest. All feel he would be no risk to the public and, with his qualifications in the construction business, would be an asset to the industry.

   
   

8. If permitted to sit for examination and successful in taking it, Petitioner intends to work as an adjuster in the field of construction insurance. He feels he can work properly there, knows it well, and can prevent unethical contractors from taking unfair advantage of the insurance companies.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

10. Under the provisions of Chapter 626, Part 1, Florida Statutes, the Department of Insurance has the responsibility for licensing insurance agents, solicitors, service representatives, adjusters, and agencies in Florida.

    
    

11. At Section 626.611, the statute provides that the Department shall deny the license of an applicant if it finds that any one or more of certain grounds exist. Included in these grounds and pertinent here are:

    
    

    1. Lack of one or more of the qualifications for the license or permit as specified

       in the code.

       (7) Demonstrated lack of fitness or trustworthiness to

       engage in the business of insurance.

       (14) Having been found guilty of, ... a felony in this state

       ... which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court...

       
       

12. Here, the evidence clearly indicates that even over his plea of not guilty, Petitioner was found guilty of a felony which involves moral turpitude. Under the provisions of the statute cited next above, the Department has no discretion as to whether or not to deny Petitioner licensure even though it may well appear his misconduct was an aberration and he constitutes no risk to the public.

RECOMMENDATION

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

RECOMMENDED:

That Petitioner's application for examination for licensure as an Independent, Public or Company Employee Adjuster be denied.

DONE and ORDERED this 23rd day of October, 1986, at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 23rd day of October, 1986.

COPIES FURNISHED:

William W. Tharpe, Jr., Esquire Legal Division

Department of Insurance and Treasurer 413-B Larson Building

Tallahassee, Florida 32301

Paul A. Cusmano

6912 S.W. 18th Court

Pompano Beach, Florida 33065

Honorable William Gunter State Treasurer and Ins. Comr. The Capitol, Plaza Level Tallahassee, Florida 32301

Docket for Case No: 86-002384

Orders for Case No: 86-002384