Judges: D. R. ALEXANDER
Agency: Department of Financial Services
Latest Update: Dec. 31, 1987
Summary: Application to take examination as an independent adjuster denied.
87-4711STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCOTT WILLIAM KATZ, )
)
Petitioner, )
)
vs. ) CASE NO. 87-4711
) DEPARTMENT OF INSURANCE ) AND TREASURER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 17, 1987 in West Palm Beach, Florida.
APPEARANCES
For Petitioner: Scott William Katz, pro se
361 Midpines Road
Palm Springs, Florida 33461
For Respondent: Lealand L. McCharen, Esquire
413-B Larson Building Tallahassee, Florida 32399-0300
BACKGROUND
This matter began on October 7, 1987 when respondent, Department of Insurance and Treasurer, issued proposed agency action in the form of a letter advising petitioner, Scott William Katz, that his application to take the examination as an independent adjuster had been denied on the ground petitioner had demonstrated a lack of trustworthiness and such business reputation as to reasonably assure he would conduct his business as an adjuster fairly and in good faith and without detriment to the public. According to the letter, this constituted a ground for denial under Subsection 626.866(3), Florida Statutes (1985). In addition, the agency concluded that applicant had demonstrated a lack of fitness or trustworthiness to engage in the business of insurance within the meaning of Subsection 626.611(7), Florida Statutes (1985). These conclusions were predicated on Katz' disbarment as a lawyer in 1986, and his plea of nolo contendere in May, 1987 to five counts of practicing law while disbarred or suspended. Thereafter, by letter dated October 15, 1987 petitioner requested a formal hearing to contest the proposed agency action. The matter was referred to the Division of Administrative Hearings by respondent on October 26, 1987 with a request that a hearing officer be assigned to conduct a hearing.
By notice of hearing dated November 3, 1987, a final hearing was scheduled on November 17, 1987 in West Palm Beach, Florida. At final hearing, petitioner testified on his own behalf. Respondent offered respondent's exhibits 1-10
which were received in evidence. In addition, the undersigned took official notice of the decision of The Florida Bar v. Katz, 491 So.2d 1101 (Fla. 1986).
Petitioner's ore tenus motion for a continuance at the outset of final hearing was denied.
The transcript of hearing was filed on December 21, 1987. Neither party filed proposed findings of fact and conclusions of law.
At issue is whether petitioner's application to take the examination for licensure as an independent adjuster should be approved.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
On November 3, 1986, petitioner, Scott William Katz, who is now 31 years of age, filed an application for examination as an independent insurance adjuster with respondent, Department of Insurance and Treasurer (Department). If approved, Katz would be authorized to take an examination for an independent adjuster license. After additional information was requested by the Department,
Katz withdrew his application by letter dated January 3, 1987. On April 2, 1987 Katz filed a second application with the Department. After obtaining additional information from Katz, the Department, by letter dated October 7, 1987, advised Katz that his application had been denied on the ground he lacked the necessary fitness, trustworthiness and business reputation required by the law. The denial prompted this proceeding.
Katz is a former member of The Florida Bar having been admitted as a member in 1980. He also was a member of the Oklahoma Bar. In August, 1985 The Florida Bar filed a three count complaint against Katz alleging that he had violated certain disciplinary rules. The complaint stemmed from charges that Katz (a) represented a wife in a dissolution of marriage proceeding and subsequent proceedings to modify the final judgment and to collect various arrearages, and then, without advising the wife, commenced proceedings against the wife on behalf of the former husband to reduce the support payments, (b) coerced an agreement from a former client to pay damages on a claim which had no legal basis, and (c) misrepresented material facts in a sworn pleading to a federal judge to obtain the relief sought. After a hearing on November 8, 1985, the referee entered his report on January 21, 1986 finding Katz guilty of all charges and recommending he be disbarred. This recommendation was approved by the Supreme Court on June 26, 1986 in The Florida Bar v. Katz, 491 So.2d 1101 (Fla. 1986), and Katz was disbarred effective July 25, 1986. This decision triggered a disbarment order by the Oklahoma Bar in 1987 and Katz' loss of his right to practice law in that state.
In a separate proceeding instituted under former Integration Rule 11.14 (now found in Rules Regulating the Florida Bar), the Circuit Court in and for Palm Beach County found Katz guilty of filing a falsified affidavit and proposed order for attorney fees in a criminal case then pending before the Palm Beach County Court. In an order dated July 22, 1986, the circuit court ordered that Katz be disbarred and that such disbarment be consecutive to that ordered by the Supreme Court in its decision rendered on June 26, 1986.
On May 12, 1987 Katz pled nolo contendere to five counts of practicing law while disbarred, a misdemeanor offense, and was placed on twelve months' probation.
At hearing, petitioner stated he was now a student at Florida Atlantic University taking coursework for a masters degree in business administration. Katz indicated that, through his former practice of law, he has become familiar with the responsibilities of an independent adjuster and desires to become self- employed in that field. Katz contended the charges leveled against him by The Florida Bar and circuit court were untrue and were the result of the malicious actions of other parties. There was no corroborative or independent evidence that Katz has been rehabilitated, has a good business reputation, or is otherwise considered trustworthy.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).
At the outset of hearing on November 17, Katz made an ore tenus motion for continuance and raised two grounds in support of his motion. Katz also filed a written motion on November 25 reiterating these grounds. First, he stated that fourteen days' notice was insufficient time to prepare his case in chief, 1/ and secondly, he had not had an opportunity to subpoena necessary witnesses. As to the first ground, Katz did not request a continuance until the day of hearing even though he acknowledged receiving a copy of the notice of hearing within a few days after it was served. Subsection 120.57(1)(b)2., Florida Statutes (Supp. 1986), requires that a party receive "notice of not less than fourteen days." Since the notice of hearing was mailed on November 3, the statutory requirement of fourteen days' notice was met. Miami Dolphins, Limited v. Florida Department of Commerce, 252 So.2d 396 (Fla. 3rd DCA 1971)(notice of hearing is complete upon mailing, rather than upon receipt). Katz also argued he had insufficient time to subpoena a number of individuals in support of his case. After inquiry by the undersigned, Katz disclosed that these potential witnesses included, among others, a supreme court judge, a federal judge, several Palm Beach County judges, the local Bar grievance committee chairman and a Judicial Qualifications Commission representative. All were apparently involved, in one way or the other, with the disbarment proceedings against Katz. According to Katz, the attendance of these individuals was necessary to show that (a) they or other persons had committed perjury during those proceedings, and (b) the charges underlying the judicial orders were untrue. In short, Katz wanted additional time to compel attendance of witnesses only for the purpose of relitigating cases already judicially determined. This is impermissible. Cf. McGraw v. Department of State, Division of Licensing, 491 So.2d 1191, 1195 (Fla. 1st DCA 1986)(improper for party to administratively relitigate a previous judicial finding of guilt). Therefore, petitioner was not deprived of due process nor a reasonable opportunity to prepare his case. The ore tenus motion for continuance was properly denied as is petitioner's post-hearing request for a second hearing.
As the applicant, Katz bears the burden of proving his entitlement to licensure. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). In this regard, the agency has preliminarily denied the application on the ground Katz fails to meet the following two statutory requirements:
626.866 Independent adjuster's qualifications - The department shall issue a license to an applicant for an independent adjuster's license upon determining that the applicable license fee specified in a s.
624.501 has been paid and that the applicant possesses the following qualifications:
(3) Is trustworthy and has such business reputation as would reasonably assure that he will conduct his business as insurance adjuster fairly and in good faith and without detriment to the public.
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:
(7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
Petitioner failed to establish a prima facie case of entitlement to licensure. J.W.C., supra. Even if he did, the agency has countered this by showing that Katz was twice barred from practicing law in June and July, 1986 and pled nolo contendere to five counts of practicing law while disbarred in May, 1987. He is now on probation for the latter offenses. The disbarment orders were based upon violations of disciplinary rules which, among others, proscribed dishonesty, fraud, deceit or misrepresentation, conduct which adversely reflects upon an attorney's fitness to practice law, and acts contrary to honesty, justice or good morals. As such, they constitute evidence of petitioner's lack of trustworthiness, good business reputation and fitness to engage in the business of insurance adjusting. This was not contradicted by petitioner.
The fact that an applicant has been convicted of a crime or has lost a professional license due to misconduct is not an absolute bar to obtaining another license from the state. See, for example, Aquino v. Department of Professional Regulation, Board of Real Estate, 430 So.2d 598 (Fla. 4th DCA 1983). However, to do so, the applicant must show he is rehabilitated, possesses a good business reputation, and is otherwise fit to engage in the profession. In the case sub judice, petitioner did not submit any independent evidence showing rehabilitation, good character, or that he possesses any of the other qualifications which the Department has claimed he lacks. Therefore, the application must be denied.
Finally, by post-hearing motion, petitioner has questioned the receipt in evidence of certified copies of various records and documents. All were properly certified as required by Chapter 90, Florida Statutes (1985), and were therefore admissible. The ruling is hereby reaffirmed.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Scott William Katz to take the
examination as an independent adjuster be DENIED.
DONE AND ORDERED this 31st of December, 1987, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1987.
ENDNOTE
1/ In a letter dated October 26, 1987 to Department counsel, Katz stated that unless he received a hearing date within the next five days, he would take the matter up with the Office of the Governor.
COPIES FURNISHED:
Scott William Katz
361 Midpines Road
Palm Springs, Florida 33461
William W. Tharpe, Jr., Esquire 413-B Larson Building Tallahassee, Florida 32399-0300
Honorable Bill Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level
Tallahassee, Florida 32399-0300
Donald A. Dowdell, Esquire General Counsel Department of Insurance and Treasurer
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF INSURANCE AND TREASURER
SCOTT WILLIAM KATZ,
Petitioner,
vs. DOAH CASE NO. 87-4711
DEPARTMENT OF INSURANCE AND TREASURER,
Respondent.
/
FINAL ORDER
THIS CAUSE came before the undersigned Insurance Commissioner of the State of Florida for consideration and final agency action. On November 17, 1987, an administrative proceeding was conducted in West Palm Beach, Florida, before a Hearing Officer of the Division of Administrative Hearings, Department of Administration, pursuant to Section 120.57(1), Florida Statutes. This administrative proceeding is recorded in the transcript of proceedings certified on December 15, 1987 and filed with the Division of Administrative Hearings on December 21, 1987. On December 31, 1987, the Hearing Officer filed his Recommended Order. There were no exceptions from the parties. Upon a careful consideration of the entire record and being otherwise fully advised in the premises it is ORDERED:
That the Hearing Officer's Recommended Order, including Appearances, Background, Findings of Fact, Conclusions of Law, and Recommendation, is hereby adopted and incorporated as this Agency's Final Order.
That the application of SCOTT WILLIAM KATZ to take the examination to be an independent adjuster is hereby DENIED.
That any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110 Fla.R.App.P. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as agency clerk, at 413-B Larson Building, Tallahassee, Florida, and a copy of the same
with the appropriate district court of appeal within thirty (30) days of rendition of this Order.
DONE and ORDERED this 29th day of January, 1988.
BILL GUNTER
Insurance Commissioner and Treasurer
ANN WAINWRIGHT
Assistant Insurance Commissioner and Treasurer
Copies furnished:
Mr. Scott William Katz
361 Midpines Road
Palm Springs, Florida 33461
William W. Tharpe, Jr., Esquire Department of Insurance
Office of Legal Services 413-B Larson Building
Tallahassee, Florida 32399-0300
Donald R. Alexander Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Docket for Case No: 87-004711
Orders for Case No: 87-004711
