STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Petitioner, )
vs. ) CASE NO. 88-1625
)
LARRY W. BROADHURST, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on July 29, 1988. The parties were represented as follows:
For Petitioner: Robert C. Byerts, Esquire
Assistant General Counsel Department of Insurance 413-B Larson Building
Tallahassee, Florida 32399-0300
For Respondent: Donald H. Reed, Jr., Esquire
First American Bank Building 2250 Glades Road
Boca Raton, Florida 33431
The issue addressed in this proceeding is whether Respondent's application for qualification and licensure as a nonresident life and health insurance agent should be approved.
At the hearing, Respondent presented his own testimony and that of Angelo
Schiralli. In addition, Petitioner's Exhibits 1 through 7 and Respondent's Exhibits 1 and 2 were admitted into evidence.
Petitioner and Respondent filed their proposed recommended orders on September 23, 1988 and September 26, 1988, respectively. Petitioner's and Respondent's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the Petitioner's and Respondent's proposed findings of fact are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
Respondent is a resident of the State of Illinois and is employed by Mutual Benefit Life Insurance Company as an associate, selling life and health insurance. He has been licensed by the State of Illinois as an insurance agent for 22 years and has engaged in the insurance business for that length of time.
On or about February 26, 1988, the Florida Department of Insurance advised Respondent, by letter, that his application for taking the exam was denied for the following reasons:
On or about January 11, 1982 you pleaded guilty to the offense of Forgery, a felony involving moral turpitude as contained in Count II of a Bill of Indictment for Case Number 81CF299.
You failed to divulge the fact on your application for qualification as a nonresident agent that on or about April 28, 1982, your licensing authority in the State of Illinois was revoked; and that on or about December 14, 1982, the Director of Insurance's Order of April 28, 1982 revoking your licensing authority was rescinded and you were required to pay a civil penalty of One Thousand dollars ($1,000.00).
The Department cited Section 626.785(1); 626.611(1), (2), (7) and (14); and Section 626.621(8), Florida Statutes, as authority for its action.
In the latter part of 1977, Respondent sold to Dr. Hanshaw, of Quincy, Illinois, a $100,000.00 life insurance policy on each of Dr. Hanshaw's two children. The cash value of Dr. Hanshaw's existing life insurance was used to pay for the premiums on the children's policies.
In 1979, the children's policies had lapsed due to Respondent's inability to get Dr. Hanshaw, owner of the policies, to execute a form reinstating the policies. Finally, after repeated attempts to obtain Dr. Hanshaw's signature on the reinstatement forms, and after a telephone conversation with Dr. Hanshaw, Respondent caused a person in Respondent's office to sign Dr. Hanshaw's name to the reinstatement forms in order to reinstate the insurance. Respondent then transmitted the forms to the home office and the policies were reinstated.
Respondent's total compensation for the reinstatement was $30.68. Respondent felt he had the permission of Dr. Hanshaw to sign Dr. Hanshaw's signature to the forms.
Approximately one year later, Dr. Hanshaw decided to surrender the policy on his life, and found the surrender value to be approximately $2,700.00 less than he felt it should be. The difference was due to the year's worth of premiums on the children's policies which had been deducted from the cash surrender value of Dr. Hanshaw's policy after the children's policies had been reinstated.
Dr. Hanshaw promptly inquired of Respondent about the cash surrender value. At that time Respondent advised Dr. Hanshaw of the above reason for the lesser amount of the cash value. Respondent also reminded Dr. Hanshaw that he had caused Dr. Hanshaw's signature to be signed by a third party in order to prevent the children's policies from lapsing the previous year pursuant to Dr. Hanshaw's instructions. Dr. Hanshaw denied he had so instructed Respondent to reinstate the policies. Respondent then offered and Dr. Hanshaw accepted, a
personal check from Respondent for the amount of the cash value loss allegedly experienced by Dr. Hanshaw.
Some time thereafter, Dr. Hanshaw filed a Complaint with the Adams County Illinois State Attorney and on October 27, 1981, a Bill of Indictment was filed against Respondent.
After plea negotiations, Respondent pleaded guilty to Count II of the Indictment (Forgery) and on March 22, 1982, the Court accepted Respondent's plea, dismissed all other Counts in the indictment, sentenced Respondent to two years probation and imposed a fine of $2,500.00, plus court costs. Part of the plea negotiation included the State Attorney's help in obtaining favorable treatment in any licensing procedure.
On March 4, 1984, Respondent's Probation was successfully discharged.
As a result of the aforesaid plea of guilty to forgery, a felony in the State of Illinois, the Illinois Department of Insurance issued an Order revoking Respondent's insurance license. However, the Order of Revocation did not take effect since Respondent timely sought a hearing on the allegations of the Order of Revocation. As a result of the hearing, Respondent's insurance license was not revoked. Instead, Respondent paid a civil penalty of $1,000.00, plus court reporter costs.
Respondent testified that he was not aware of the consequences of his plea of guilty on other insurance licenses he might wish to obtain once he had discharged his debt to society. He has since discovered these effects, but after presentation of the above facts has been able to obtain other insurance licenses in other states.
On or about September 24, 1987, Respondent filed an Application For Qualification as a Nonresident Life and Health Agent with the Department of Insurance. In that application, Respondent answered "No" to question 9 which asked if his license had ever been declined, suspended, placed on probation or administratively fined. However, on question 12, Respondent clearly states that he had been charged with and convicted of a felony, the location of that offense, that there was one charge of forgery, a $2,500.00 fine, two years probation, and that his Illinois license had been stayed. The negative response in question 9 forms the basis of Petitioner's reason for denial stated in paragraph 2(b) above.
Respondent did not mislead, misrepresent or misstate anything to the Department of Insurance with his negative response to Question 9 of the Application. Respondent's license had clearly never been declined, suspended, placed on probation or revoked since the Illinois Order of Revocation never took effect. Nor did he mislead misrepresent or misstate anything to the Department with his negative response in reference to an administrative fine. He felt the fine he actually paid was not what question 9 was asking since he had paid a civil and not an administrative fine. He also thought that the license action was part and parcel of the criminal action. Nowhere in the application is "administrative fine" defined. Reasonable people can differ on the meaning of "administrative fine" especially where one state uses the term civil fine.
These facts bear out the vagueness of the term's meaning. Before a person can misstate a fact there must be some agreement or mutual understanding as to what the fact is being stated for. There was clearly no such understanding in this case. The answer does not even come close to fraud since no intent to defraud the Department was demonstrated by the evidence. Additionally, his response to
Question 12, together with the information he supplied along with the Application, was sufficient notice to the Department of the facts surrounding his Illinois license. The information supplied in Question 12 renders the response in Question 9 as immaterial. Therefore, the reasons given by the Department in Paragraph 2(b) above cannot stand as a basis for denying Respondent's licensure application.
The reason given by the Department in paragraph 2(a) above involves the Respondent's forgery conviction. The forgery conviction does include an allegation of an intent to defraud. However, the facts of this case fails to demonstrate that moral turpitude was involved. This is especially true since this was a plea bargained case and the technical aspects of a crime do not bear the importance those aspects would if a trial had taken place or if Respondent had known the full effect such a plea would have on future licenses.
Moreover, Respondent has rehabilitated himself. The Order rescinding the revocation of Respondent's license in Illinois specifically incorporates the Conclusion of Law made by the Hearing Officer, to-wit:
"4. That, although convicted of the felony of forgery, the Licensee has demonstrated that he is sufficiently rehabilitated to warrant the public trust as required by Section 502(h) of the Illinois Insurance Code."
Further, the testimony of Angelo P. Schiralli at the hearing attests to the honesty and trustworthiness of Respondent. Respondent is a person of honesty and trustworthiness and has had no problems with the law since 1979.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
The Respondent has the burden of proving that he meets the statutory criteria of Chapter 626, Florida Statutes.
The Department's letter of denial alleges that Respondent's application should be denied pursuant to Section 626.622(2), Florida Statutes, by Respondent's making a material misstatement, misrepresentation or fraud in obtaining the license, in that he failed to divulge on his application that his licensing authority was revoked, that such revocation was rescinded and that he was required to pay a civil penalty of $1,000.00.
(a) Paragraph 9 of the Department of Insurance Application for Qualification as Non-resident Life and/or Health Agent states:
"9. Has your application for a license ever been declined by this or any other Insurance Department or has your license or eligibility to hold a license ever been declined, suspended, revoked, placed on probation or administrative fined levied?"
Respondent answered in the negative.
The Order of Revocation never took effect. Since she Order never took effect Respondent's license was never revoked. Respondent's negative response was correct in that regard.
The question then is whether Respondent's negative response to question 9 of the application concerning whether an administrative fine was levied constituted a material misstatement, misrepresentation or fraud. The evidence did not demonstrate that Respondent made any material misrepresentation, misstatement or fraud in his answer to Question 9 of his application. The language of Question 9 is vague and the term "administrative fine" is not defined. Respondent was generally confused as to what the Department was asking and in fact supplied the information in his answer to Question 12.
The next question at issue is whether the provisions of Section 626.611(14), Florida Statutes, when applied to this case, preclude the Department of Insurance from issuing a license to Respondent since he pleaded guilty to the felony of forgery. Subsection (14) requires proof that the crime involved, in this case forgery, is a crime involving moral turpitude. It is a ground which requires the Department to deny such a person's application.
In The Florida Bar v. Davis, 361 So.2d (Fla. 1978), the Respondent was charged, in a disciplinary proceeding, with illegal conduct involving moral turpitude. The Florida Supreme Court stated:
"(1) Moral turpitude is discussed in 9 Fla. Jur. Criminal Law Sec. 8 as follows:
A crime involves moral turpitude if it is an act of baseness, vileness or depravity in the private and social duties which a ban owes to his fellow men or to society in general. Unless the offense is one which by its very commission implies a base and depraved nature, the question of moral turpitude depends not only on the nature of the offense, but also the attendant circumstances.
Specific crimes that have resulted in disciplinary proceedings include forgery, use of the mails to defraud, violation of a liquor law, larceny, petit larceny, and acceptance of stolen property... It does not appear to us that writing a check with knowledge of insufficient funds constitutes, in all circumstances, a vile and depraved act. Certainly, such conduct is violative of the law and is contrary to honesty, justice and good morals. But where there is no intent to defraud, as is the case herein, the act itself is not so
base as to fall into the category of illegal conduct involving moral turpitude. Thus, the attendant circumstances must be considered. While Respondent admits that he wrote the dishonored checks, he argues as a mitigating factor, his lack of intent to defraud either the bank or the individual payee. Respondent testified before the Referee that at the time he wrote the checks he intended to make deposits to cover his withdrawals.
(2) While we find Respondent's conduct inexcusable, we cannot say that such conduct involves moral turpitude. The circumstances surrounding Respondent's actions do not indicate otherwise...
(4) We now hold that the issuance of a worthless check by an attorney constitutes unethical conduct and subject the attorney to professional discipline by The Florida Bar. Whether such conduct also involves moral turpitude depends upon the circumstances surrounding the case."
In Davis, supra, among other things the Respondent deposited a check for $700.00 in his bank account in La Belle, Florida, drawn on a bank in Fort Lauderdale with knowledge that there were insufficient funds to cover the check. The bank obtained a default judgment, which, at the time the decision was issued, had not been satisfied. In addition, the Respondent was convicted of the misdemeanor of uttering a worthless check. The nature of the act itself, issuing a worthless check with knowledge of insufficient funds to cover it, shows intent to defraud. However, the Florida Supreme Court clearly enunciated that if there was no intent to defraud, the attendant circumstances must be considered to determine whether the act was so base as to fall into the category of illegal conduct involving moral turpitude. The court, in an effort to determine if there was intent to defraud, relied upon testimony of the Respondent at the disciplinary hearing before the Referee, some time after the act itself was committed and after Respondent had been convicted of uttering a worthless check. The court, accordingly, found the Respondent not guilty of illegal conduct involving moral turpitude. Thus, one must not look solely to the act itself to determine if it involves moral turpitude if there is subsequent testimony that there was no intent to defraud at the time the act was committed, and in such a situation one must consider the surrounding circumstances. See also Sandlin v. Criminal Justice Standards and Training Commission, 13 FLW 619 (Fla. 1988).
In the instant case, Respondent entered a negotiated plea of guilty, and without a trial, was found guilty of forgery, a felony. Testimony subsequent to the conviction for the act itself may be used to determine the state of mind of the person convicted, as to whether or not actual intent to defraud existed at the time the offense occurred, and thus whether or not the offense involved moral turpitude.
The evidence clearly demonstrated that Respondent did not possess any intent to defraud Dr. Hanshaw. The evidence failed to demonstrate that the offense committed by Respondent was one which by its very nature implies a base and depraved nature and therefore is a crime involving moral turpitude by law. Accordingly, the allegation by the Department that Respondent violated Section 626.611(14) is not supported by the testimony and the evidence and cannot be used as a mandatory ground to deny Respondent's application to take the insurance exam and be licensed.
Moreover, the recent Florida Supreme Court decision in Sandlin v. Department of Insurance, 13 Florida Law Weekly 619 (Fla. Ct. 1988) precludes the Department from mandatory denial of a person's application without consideration of whether the applicant has been rehabilitated. In essence, any denial of licensure on a criminal conviction is now governed by Section 626.621(8) and such denial is only a discretionary act by the Department. Rehabilitation, good moral character and fitness to engage in the desired trade must be considered by the Department in any application for licensure. The fact of a criminal conviction is but one piece of evidence in determining moral fitness and good character.
In arguing the discretionary authority of the Department to deny a person's license application based on a conviction, the Department asserts that such discretion allows it to deny the, application based on its decision that a criminal conviction alone is sufficient for such a denial based on character. The Department asserts no other factors need be considered. This argument simply allows the Department to sneak in the back door the reasoning disallowed in Sandlin. Such an argument cannot stand. Moreover, if the agency's interpretation were allowed to stand, the effect would be to create an unconstitutional irrebuttable presumption. Put simply, the fact of a criminal conviction does not necessarily translate ipso facto into bad moral character. The legislature's authority, and concomitantly the Department's authority, to regulate or restrict any business, trade, or occupation is a well recognized exercise of its police powers. See Amos v. Gunn, 94 So.2d 615 (Fla. 1922); Sullivan v. DeCerb, 23 So.2d 571 (Fla. 1945); Junce v. St. Bd. of Acct., 390 So.2d 329 (Fla. 1980). However, its authority to act is not unlimited. Among other things, the guaranty of equal protection of the laws and the guaranty of due process of law circumscribe the exercise of such powers. Blitch v. City of Ocala, 195 So.2d 406 (Fla. 1940), State ex rel. Badett v. Lee, 22 So.2d 804 (Fla. 1945). Therefore, the statute must be given an interpretation which renders it constitutional and avoids the possibility that impermissible classification or unrebuttable presumptions are established which have no rational bases or basis in fact. In essence, the Department must observe the strictures of Sandlin and must take rehabilitation into account.
In this case, the offense to which the Respondent entered a negotiated plea of guilty happened almost ten years ago. The testimony shows that it is the only offense with which he was ever charged. He has led an exemplary life both before and after that one offense. Although Respondent did negotiate and enter a plea of guilty to forgery, he steadfastly maintains that he had been verbally authorized by his client to sign his client's name to the applications of reinstatement. When he discovered that his client would not affirm that Respondent was authorized to sign the documents, and prior to any criminal action even being instituted, Respondent made full restitution to his client. The State of Illinois, in which the offense occurred, found that Respondent "...has demonstrated that he is sufficiently rehabilitated to warrant the public trust..." He paid all penalties associated with the offense and was successfully discharged after two years probation. Moreover, the evidence
clearly establishes that Respondent is completely rehabilitated and therefore, in view of the foregoing, the reasons given by the Department and cited in Section 626.621(8) are not well taken and are not sufficient to sustain a reasonable exercise of discretion by the Department.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That Respondent's application be accepted and he be permitted to take the Life and Health Agent's exam.
DONE and ENTERED this 18th day of November, 198, in Tallahassee, Florida.
DIANE CLEAVINGER
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 18th day of November, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1625
The facts contained in paragraphs 1, 3, 4 and 10 of Petitioner's proposed findings of fact are subordinate.
The facts contained in paragraphs 2, 5, 6, 7, 8 and 11 of Petitioner's proposed findings of fact are adopted in substance, in so far as material.
The facts contained in paragraph 9 of Petitioner's proposed findings of fact are irrelevant.
The facts contained in the first two paragraphs of Petitioner's proposed findings of fact numbered 12 are adopted. The first sentence of the third paragraph is adopted. The last sentence of the third paragraph was not shown by the evidence. The fourth paragraph is adopted as to the first sentence. The remainder of the fourth paragraph is rejected. The first sentence of the fifth paragraph is subordinate. The remainder of the fifth paragraph is rejected.
The first sentence of paragraph 13 of Petitioner's proposed findings of fact is subordinate. Remainder of the paragraph is rejected.
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 15 of Respondent's proposed findings of fact are adopted in substance, in so far as material.
The facts contained in paragraph 10 of Respondent's proposed findings of fact are subordinate.
COPIES FURNISHED:
Robert C. Byerts, Esquire Department of Insurance Agency Regulation Section 413-B Larson Building
Tallahassee, Florida 32399-0300
Donald H. Reed, Jr., Esquire First American Bank Building 2250 Glades Road
Boca Raton, Florida 33431
Honorable William Gunter State Treasurer and
Insurance Commissioner Department of Insurance
and Treasurer
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Don Dowdell, Esquire General Counsel Department of Insurance
and Treasurer
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
=================================================================
AGENCY FINAL ORDER
=================================================================
OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE
IN THE MATTER OF:
LARRY W. BROADHURST DOAH CASE NO. 88-1625 DOI CASE NO. 88-L-561RCB
/
FINAL ORDER
THIS CAUSE came before the Insurance Commissioner of the State of Florida for consideration and final agency action. On September 24, 1987, LARRY W. BROADHURST (hereinafter "BROADHURST") filed an Application for Qualification as Nonresident Life and/or Health Agent or Nonresidential Dental Health Care Service Contract Agent. On February 26, 1988, the Florida Department of Insurance and Treasurer (hereinafter "Petitioner") issued a letter of denial of BROADHURST's application.
The letter of denial stated the reasons for denial were twofold. First, that BROADHURST had pled guilty to forgery in 1982, and second, that BROADHURST had failed to divulge in his application that in April 1982, his insurance license in the State of Illinois was revoked, and that in December 1982, the Illinois order revoking his license was rescinded and he was required to pay a civil penalty of One Thousand Dollars ($1,000.00). BROADHURST timely requested a formal hearing which was held on July 29, 1988. The Hearing Officer's recommended order of November 18, 1988, recommended that BROADHURST's application be accepted, and that he be permitted to take the Life and Health Agent's examination. A copy of the Recommended Order is attached hereto as Exhibit "A". The Petitioner timely filed Exceptions to the Recommended Order. BROADHURST did not file any exceptions. A transcript of the hearing was prepared and filed, and the entire record of the proceedings before the Hearing Officer have been reviewed in the preparation of this Order.
RULING ON EXCEPTIONS
The Petitioner's Exception of Fact Number 1 is granted. The second sentence of the Hearing Officer's Recommended Finding of Fact Number 9 is supported only by hearsay testimony. There is no competent substantial evidence in the record to support such a finding of fact, and hearsay evidence alone is not sufficient to support such a finding. Section 120.58(1)(a), Florida Statutes (1987); Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986).
The Petitioner's Exception of Fact Number 2 is granted. The Hearing Officer's Finding of Fact Number 12 states that "Respondent testified that he was not aware of the consequences, of his plea of guilty on other insurance licenses he might wish to obtain . . ." Petitioner takes exception on the ground of relevancy.
If BROADHURST's intent to defraud was a material fact in issue, then the finding of fact would have some tendency to prove or disprove the intent. Forgery under Illinois law requires intent to defraud as an essential element. Illinois Rev. Stat. Chapter 38, Section 17-3. The conviction for forgery in Illinois, therefore, establishes intent to defraud. BROADHURST can not now in these proceedings relitigate the previous judicial finding of guilt. The Florida Bar v. Vernell, 374 So.2d 473 (Fla. 1979); McGraw v. Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986); Katz v. Department of Insurance and Treasurer, 10 F.A.L.R. 5674, 5676 (Division of Administrative Hearings 1988). Therefore, BROADHURST's fraudulent intent with respect to the forgery is not a material fact in issue and the finding of fact is not relevant as to his fraudulent intent.
If the consideration of evidence of BROADHURST's fraudulent intent was necessary to establish whether his conviction for forgery was a conviction of a felony involving moral turpitude, then the finding of fact would be relevant. However, for the reasons stated in Paragraphs 4(a) through 4(g) of this Order, the conviction of forgery establishes, without further inquiry, that BROADHURST committed a felony involving moral turpitude. Therefore, the finding of fact is not relevant to prove or disprove that BROADHURST was convicted of a felony involving moral turpitude.
As to the second sentence in the Hearing Officer's Finding of Fact Number 12, the fact that other states may have granted licenses is neither relevant nor material.
For the foregoing reasons, Petitioner's Exception of Fact Number 2 is granted and the Hearing Officer's Finding of Fact Number 12 is rejected as not relevant.
The Petitioner's Exception of Fact Number 3 is granted in part and denied in part. The Hearing Officer's Finding of Fact Number 14 is a mixture of several findings of fact. Separate findings will be addressed in the subparagraphs below:
The Hearing Officer found that BROADHURST's license had never been declined, suspended, placed on probation or revoked since the Illinois Order of Revocation was automatically stayed by BROADHURST's request for a hearing, and the Order was subsequently rescinded. This finding is based on competent, substantial evidence and the petitioner's exception to this finding is denied.
The Hearing Officer found that BROADHURST's answer "No" to Question 9 which asked if he had ever been administratively fined, did not mislead, misrepresent or misstate anything to Petitioner. This finding is unsupported by any competent, substantial evidence. In fact, BROADHURST admitted that he paid a $1,000 administrative fine to the State of Illinois, Director of Insurance (Tr. at 28). Therefore, the answer to Question 9 clearly misstated or misrepresented the fact of the $1,000 fine. The Petitioner's exception to this finding of fact is granted.
The Hearing Officer found that BROADHURST misunderstood the meaning of the term "administrative fine" in Question 9, and did not intend to mislead, misrepresent or misstate the fact that he had been subject to an administrative fine by the Illinois Director of Insurance. Although intent may be a requisite for a showing of fraud, fraud is not a necessary element to a violation of Section 626.611(2), Florida Statutes.
While it may be true that intent is a prerequisite for fraud, it is erroneous to assume that intent is a prerequisite to the two other factual grounds listed in this statutory subsection. Since this statute uses the disjunction "or" it must be construed to mean that the Department can deny, revoke, or suspend a license when any of the three listed grounds exist, i.e., where there is a material misstatement, misrepresentation or fraud. One must, therefore, conclude that a violation of Section 626.611(2), Florida Statutes, exists when, by substantial competent evidence, it is shown that an applicant made a material misstatement (whether intentional or not) in obtaining the license or permit, or in attempting to obtain the same.
Department of Insurance v. West, 6 F.A.L.R. 6510, 6512 (Fla. Dept. of Insurance 1984); Hamin v. Department of Insurance 6 F.A.L.R. 753 (Fla. Dept. of Insurance 1983). Therefore, this finding of fact regarding intent is not relevant to a showing of a material misstatement or misrepresentation, and the Petitioner's exception is granted.
Finally, the Hearing Officer found that in the light of BROADHURST's answer to Question 12, any misrepresentation in Question 9 as to the administrative fine is not material. In order for a misrepresentation to be grounds for a violation of Section 626.611(2), Florida Statutes, the misrepresentation must be material. Department of Insurance v. West, supra. Whether a fact or misrepresentation is material is normally a question of fact. Atlantic National Bank of Florida v. Vest, 480 So.2d 1328 (Fla. 2d DCA 1985), rev. den., 491 So.2d 281 (Fla. 1986), rev. den., 508 So.2d 16 (Fla. 1987); Hauben v. Harmon, 605 F.2d 920 (5th Cir. 1979); 27 Fla. Jur. 2d, Fraud and Deceit, s.114 (1981). There is competent, substantial evidence supporting this finding; therefore, the Petitioner's exception must be and hereby is denied.
As to any remaining findings of fact in the Hearing Officer's Finding of Fact Number 14, the Petitioner's exceptions are denied.
The Petitioner's Exception of Fact Number 4 is granted. The Hearing Officer's Finding of Fact Number 15 states that "the facts of this case fails [sic] to demonstrate that moral turpitude was involved." Initially, it is noted that whether a given felony involves moral turpitude is a conclusion of law rather than a question of fact. For the reasons set forth below, the Hearing Officer's conclusion of law that the forgery did not involve moral turpitude is rejected.
The Recommended Order recognizes that the forgery conviction involved an allegation of intent to defraud. Without any intent to defraud, BROADHURST could not have been convicted of forgery because intent to defraud is an essential element of forgery as shown in the charging document (Petitioner's Exhibit 4) and in the statutory elements of forgery in Illinois and Florida. Ill. Rev. Stat., Chapter 38, Section 17-3; Section 831.01, Florida Statutes. It is undisputed that BROADHURST was convicted of forgery. Therefore, it must follow that BROADHURST has conceded intent to defraud when he had an associate sign Dr. Hanshaw's name to an insurance reinstatement form and pled guilty to forgery for that act.
Many jurisdictions have recognized that forgery, by its very commission, involves moral turpitude. Annot., 23 A.L.R. Fed. 480, 541 (1981); Morasch v. Immigration and Naturalization Service, 363 F.2d 30, 31 (9th Cir. 1966)(no doubt that a forgery conviction constitutes a crime involving moral turpitude); United States, ex. rel. McKenzie v. Savoretti, 200 F.2d 546, 548 (5th Cir. 1938)(forgery is one of several felonies involving moral turpitude); United States ex. rel. Robinson v. Day, 51 F.2d 1022 (2d Cir. 1931)(forgery is a crime involving moral turpitude).
Forgery is a crime involving fraud. "The rule that crimes in which fraud is an element are crimes 'involving moral turpitude' has been frequently reiterated, and is hardly open to question." Annot., 23 A.L.R. Fed. 480, 503 (1981). The United States Supreme Court has expressly embraced this rule. See Jordan v. De George, 341 U.S. 223, 229, 71 S.Ct. 703, 95 L.Ed 886, 891 (1951)("It can be concluded that fraud has consistently been regarded as such a contaminating component in any crime that American courts have, without exception, included such crimes within the scope of moral turpitude.")
BROADHURST contends that in Florida, forgery is not always a crime involving moral turpitude. This contention is based on the view that the rule of The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978) requires that in this case one must not look solely to the act of forgery to determine if it involves moral turpitude since there is subsequent testimony that there was no intent to defraud at the time the forgery was committed. BROADHURST's reasoning is predicated on his misapprehension that the crime of which Davis was convicted involved an intent to defraud. In Davis, the only crime considered by the Court was the conviction of the misdemeanor of uttering four worthless checks in violation of Section 832.05(2)(a), Florida Statutes. In contrast to Sections 832.04, 832.041 and 832.05(3), Florida Statutes, which expressly state that intent to defraud is an essential element of those crimes, Section 832.05(2) and 832.05(4), Florida Statutes, do not expressly include intent to defraud as an essential element. Because of the absence of the express requirement of intent to defraud in Section 832.05(4), Florida Statutes, that subsection has been held to not include intent to defraud as an essential element of the crime. State v. Berry, 358 So.2d 545 (Fla. 1978). 1/ Given the express provision in Sections 832.04, 832.041 and 832.05(3), Florida Statutes, that intent to defraud be an essential element of the crime, and given the absence of such an express requirement in Sections 832.05(2) and 832.05(4), Florida Statutes, it is concluded that intent to defraud was not an essential element of the crime in the case before the Court in The Florida Bar v. Davis, supra.
In The Florida Bar v. Davis, supra, the Florida Supreme Court did not recede from the rule that crimes involving intent to defraud are crimes of moral turpitude. Rather, the Court was concerned with a violation of Section 832.05(2), Florida Statutes which does not include intent to defraud as an essential element. Since in such cases an intent to defraud is not established by the mere fact of the conviction, and since "where there is no intent to defraud . . . the act itself is not so base as to fall into the category of illegal conduct involving moral turpitude," Id., 361 So.2d at 161, the Court in Davis held that in order to establish moral turpitude an inquiry into the attendant circumstances of that crime must be considered to determine if intent to defraud existed. Clearly, where there is a conviction of a crime which has intent to defraud as an essential element, no further inquiry is required to establish moral turpitude.
The fact that BROADHURST's conviction for forgery was plea bargained does not negate the fact that a conviction of forgery is a conviction of a crime involving moral turpitude. Nor may a party relitigate in an administrative forum a previous judicial finding of guilt. The Florida Bar v. Vernell, 374 So.2d 473 (Fla. 1979); McGraw v. Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986); Katz v. Department of Insurance and Treasurer,
10 F.A.L.R. 5674, 5676 (Division of Administrative Hearings 1988).
BROADHURST admits that he was convicted of forgery in Illinois. Forgery in Illinois requires intent to defraud as an essential element. Therefore, the Illinois conviction for forgery was a conviction for a crime involving moral turpitude, and the Hearing Officer's conclusion to the contrary is rejected.
The Petitioner's Exception of Law Number 1 is rejected. For the reasons set forth in the above discussion of the Petitioner's Exception of Fact Number 3, the misrepresented or misstated fact was not material. That portion of the Hearing Officer's Conclusion of Law Number 5 which finds that "the language of Question 9 is vague" is rejected.
The Petitioner's Exception of Law Number 2 is granted, and the Hearing Officer's Conclusions of Law Numbers 8, 9 and 10 are rejected for the reasons stated in paragraphs 4(a) through 4(g) of this Order.
The Petitioner's Exception of Law Number 3 is granted, and the Hearing Officer's Conclusions of Law Numbers 11 and 12 are rejected. The Supreme Court of Florida's opinion in Sandlin v. Criminal Justice Standards and Training Commission, So.2d (Fla. 1988), 13 FLW 19 (Fla. October 13, 1988) applies only to the effect of a pardon. The reasoning of the Supreme Court in Sandlin is clearly predicated on the ground that the Legislature may not constitutionally impair the pardon powers of the Governor. Sandlin has no application to BROADHURST's case.
FINDINGS OF FACT
Except as otherwise stated in the Ruling on Exceptions, the Department hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
Except as otherwise stated in the Ruling on Exceptions, the Department hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order, and in addition thereto, makes the following conclusions of law:
Intent to defraud is an essential element of the crime of forgery in Illinois. Ill. Rev. Stat., Chapter 38, Section 17-3.
Forgery, by its very commission, is a crime involving moral turpitude. See the discussion in paragraphs 4(a) through 4(h) of this Order.
The fact that a plea of guilty to forgery resulted from plea bargaining is irrelevant to the determination that a conviction for forgery is a conviction of a crime involving moral turpitude.
Section 626.611, Florida Statutes, provides that:
The department shall deny, suspend, revoke or refuse to renew or continue the license of any agent . . . if it finds that as to the applicant . . . any one or more of the following applicable grounds exist:
(14) Having been found guilty of, or having pleaded guilty or 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 supplied)
The mandatory nature of Section 626.611, Florida Statutes was not abrogated by the Florida Supreme Court's decision in Sandlin v. Criminal Justice Standards and Training Commission, So.2d (Fla. 1988), 13 FLW 619 (October 13, 1988), except where the applicant has been pardoned.
Section 626.621, Florida Statutes, provides in part that: The Department may, in its discretion, deny,
suspend, revoke or refuse to renew or continue
the license of any agent . . . if it finds that as to the applicant . . . 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:
(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 . . . (Emphasis supplied)
Since BROADHURST was convicted of a felony involving moral turpitude, and since no pardon is involved in this case, Section 626.611, Florida Statutes, mandates that the department shall deny BROADHURST's application.
Based upon the foregoing, it is ADJUDGED:
That Petitioner, LARRY W. BROADHURST's, Application for Qualification as a Nonresident Life Insurance Agent, and Application for Qualification as a Nonresident Health Insurance Agent, and Application for Qualification as a Nonresident Dental Health Care Service Contract Agent were properly denied, and that said applications must be and hereby are DENIED.
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, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or Notice of Appeal with the General Counsel, acting as the agency clerk, at 413-B Larson Building, Tallahassee, Florida
32399-0300, 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 11th day of January, 1989.
Tom Gallagher Insurance Commissioner and Treasurer
ENDNOTE
1/ State v. Berry concerned Section 832.05(3), Florida Statutes (1977) which has been renumbered as Section 832.05(4), Florida Statutes (1988).
| Issue Date | Proceedings |
|---|---|
| Nov. 18, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 11, 1989 | Agency Final Order | |
| Nov. 18, 1988 | Recommended Order | Recommended applicant be permitted to take life insurance exam. Applicant rehabilitated since entering guilty plea to forgery. |
DEPARTMENT OF FINANCIAL SERVICES vs MARK STEVEN BERSET, 88-001625 (1988)
DEPARTMENT OF FINANCIAL SERVICES vs THOMAS ANDREW MASCIARELLI, 88-001625 (1988)
DEPARTMENT OF FINANCIAL SERVICES vs DAVID BARSKY, 88-001625 (1988)
DEPARTMENT OF FINANCIAL SERVICES vs ANDY RODRIGUEZ, 88-001625 (1988)
DEPARTMENT OF FINANCIAL SERVICES vs ANDY RODRIGUEZ, 88-001625 (1988)
