STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1234

) CASE NO. 88-1468

MASON CALVIN JACKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on June 28, 1988 in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: S. Marc Herskovitz, Esquire

Office of Legal Services 413-B Larson Building

Tallahassee, Florida 32399-0300

For Respondent: John Witt, Esquire

1610 Southern Boulevard

West Palm Beach, Florida 33406 BACKGROUND

By administrative complaint, Petitioner charged Respondent, an insurance agent licensed by Petitioner, with violation of various provisions of Chapter 626, Florida Statutes. The gravamen of the charges in the complaint is that Respondent pled guilty to the criminal offense of dealing in counterfeit obligations or securities of the United States in violation of Title 18 U.S.C. Section 473 in the United States District Court, thereby violating provisions of the insurance code.

Respondent requested a formal administrative hearing pursuant to Section 120.57, Florida Statutes. The case was inadvertently referred to the Division of Administrative Hearings on two occasions and assigned two different case numbers. The two case files were consolidated by order dated May 2, 1988.

At final hearing, no witnesses testified on behalf of either party. Petitioner presented two exhibits in evidence. Proposed findings of fact presented by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent is Mason Calvin Jackson, licensed by Petitioner at all times relevant to these proceedings to engage in the business of insurance as a life agent, a life and health agent and as a health insurance agent.

   
   

2. On or about August II, 1987, Respondent entered a plea of guilty in the United States District Court for the Southern District of Florida to dealing in counterfit obligations or securities of the United States in violation of Title

   18 U.S.C. Section 473.

   
   

3. Respondent was adjudged guilty of the offense and subsequently sentenced to incarceration for six months followed by three years of probation. The maximum sentence for the offense is a fine of $5,000 and/or imprisonment of

   10 years. Respondent's guilty plea, conviction and sentence are undisputed.

   
   

4. No evidence was presented regarding the underlying factual basis upon which Respondent's guilty plea, conviction and sentence rest.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

6. The administrative complaint alleges Respondent's guilty plea and conviction of the offense of dealing in counterfeit obligations or securities constitutes a demonstrated lack of fitness or trustworthiness to engage in the business of insurance and is therefore a basis for license revocation in accordance with Section 626.611(7), Florida Statutes. Petitioner is afforded great latitude in the interpretation of this statute. Respondent's guilty plea, conviction and sentence are undisputed, and clearly and convincingly evidence the requisite lack of fitness or trustworthiness necessary to justify revocation. Paisley v. Department of Insurance, So.2d , 13 F.L.W. 1256 (Fla. 1st DCA 1988); Natelson v. Department of Insurance, 54 So.2d 31 (Fla. 1st DCA 1984).

   
   

7. The administrative complaint also alleges that Respondent's guilty plea and conviction of the offense of dealing in counterfeit obligations or securities constitutes an additional basis for revocation in accordance with Section 626.611(14), Florida Statutes, which authorizes licensure revocation when a licensee is found guilty or pleads guilty to a "felony in this state or any other state which involves moral turpitude."

   
   

8. Similarly, the complaint also alleges Respondent's guilty plea and subsequent finding of guilt permits discretionary revocation under provision of Section 626.621(8), Florida Statutes.

   
   

9. Clearly, the offense of which Respondent stands convicted must constitute a felony under the law of this state to activate the provisions of Sections 626.611(14), and 626.621(8) Florida Statutes. Shields v. Smith, 404 So.2d 1106 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 470 (Fla. 1982) and Rotstein v. Department of Professional and Occupational Regulation, 397 So.2d 305 (Fla. 1st DCA 1981), rev. denied, 402 So.2d 609 (Fla. 1981).

10. Section 18 U.S.C. 473 reads as follows:

    
    

    Whoever buys, sells, exchanges, transfers, receives, or delivers any false, forged, counterfeited, or altered obligation or other security of the United States, with the intent that the same be passed, published, or used as true and genuine, shall be fined not more than $5,000 or imprisoned not more than ten years, or both.

    
    

11. Petitioner urges that Respondent's offense is entailed in those crimes prohibited by Sections 831.07, 831.08, 831.09 and 831.11, Florida Statutes, and thereby activates additional avenues for licensure revocation. While these offenses constitute crimes of moral turpitude, a determination of whether Respondent's federal conviction is also sufficient to support a finding of a violation of any one of those statutory sections is not possible without the benefit of evidence of the underlying facts upon which the conviction rests.

For instance, Section 831.07, Florida Statutes, applies to securities issued by an incorporated banking company; Section 831.08, Florida Statutes, has a quantitative requirement of possession of "10 or more" counterfeit securities; Section 831.09, Florida Statutes, requires that counterfeit notes must be uttered, passed or used "in payment" to constitute the offense; and Section 831. Florida Statutes, requires the issuance of the security by a "bank or banking company" to constitute a violation. Further, the suggestion of Petitioner that some elements of each of these four statutory provisions comprise the elements of the crime which Respondent pled guilty is not persuasive. Without evidence of the factual basis underlying Respondent's federal conviction, a clear and convincing showing cannot be made that such conviction also constitutes commission of a felony under the of the State of Florida. Respondent is not guilty of a violation of Sections 626.611(14), and 626.621(8) Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent has

demonstrated a lack of fitness or trustworthiness to engage in the business of insurance in violation of Sect 626.611(7), Florida Statutes, and revoking his licenses and eligibility for licensure.

DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 24th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-1234, 88-1468

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

1. Addressed in finding 1.

2. Addressed in finding 1.

3. Addressed in finding 2.

4. Addressed in finding 3.

RESPONDENT'S PROPOSED FINDINGS

1.-2. Addressed in finding 1.

3. Addressed in findings 2-3.

COPIES FURNISHED:

S. Marc Herskovitz, Esquire Department of Insurance

and Treasurer

413-B Larson Building Tallahassee, Florida 32399-0300

John Witt, Esquire

1610 Southern Boulevard

West Palm Beach, Florida 33406

Don Dowdell, Esquire General Counsel Department of Insurance

and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Hon. William Gunter State Treasurer and

Insurance Commissioner Department of Insurance

and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Docket for Case No: 88-001234

Orders for Case No: 88-001234