STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WILLIAM C. HARRELL, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2767
) STATE OF FLORIDA, DEPARTMENT ) OF INSURANCE AND TREASURER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, in Jacksonville, Florida, on August 22, 1989. The appearances were as follows:
APPEARANCES
For Petitioner: William C. Harrell, pro se
Post Office Box 5503 Jacksonville, Florida 32247
For Respondent: John C. Jordan, Esquire
Department of Insurance and Treasurer Office of Legal Services
412 Larson Building
Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES
The issues in this proceeding concern whether the Petitioner's applications for examination and licensure as a life and health insurance agent and general- lines agent should be denied due to an alleged plea of nolo contendere to a felony involving moral turpitude and to a misdemeanor allegedly involving a lack of fitness or trustworthiness to engage in the business of insurance.
PRELIMINARY STATEMENT
This cause arose upon Petitioner's notification by the Department of Insurance and Treasurer ("Department"), by letter, that his applications for examination and licensure as a life and health agent and general-lines agent (limited to industrial fire coverage) were denied. This letter of denial of April 24, 1989 specified that the denial was predicated upon his plea of nolo contendere, in Criminal Case Number 87-107CF, to sexual battery. The Department's position is that this is a felony involving moral turpitude and that the Petitioner failed to disclose this information on his applications for licensure which he submitted to the Department.
That same denial letter also notified the Petitioner that his applications for examination and licenstire were being denied because on or about April 7,
1986, in Case Number 86-1895MM, he plead nolo contendere to a charge of petty theft. It is alleged that this charge and plea indicates a lack of fitness or trustworthiness to engage in the business of insurance. After being informed of this denial and the bases for it, the Petitioner timely requested a formal proceeding pursuant to Section 120.57(1), Florida Statutes, in order to contest that denial.
The cause came on for hearing as noticed, at which the Petitioner introduced composite exhibit number 1, consisting of correspondence from Mr.
Durrance, an Assistant Public Defender, dated March 24, 1989, and Mrs. Carolyn Davidson, an official with the Department of Health and Rehabilitative Services, dated August 2, 1989. The Petitioner also introduced composite exhibit number 2, which included numerous letters of reference. These exhibits were admitted without objection. The Respondent introduced composite exhibit number 1, containing certified copies of the Petitioner's applications for examination and licensure, as well as the Respondent's letter of denial of April 24, 1989. The Respondent also introduced composite exhibit number 2, consisting of certified copies of the amended information charging the Petitioner with sexual battery, the information charging him with petty theft, and certified copies of the judgments and pleas of nolo contendere to these offenses.
Finally, the Respondent introduced composite exhibit number 3, which included correspondence between the Petitioner and the Department, in which the Department requested that he provide additional information concerning his criminal history. The Petitioner presented the testimony of Harry William Duke, Elizabeth S. Peschau, Wayne Law, and the Petitioner's testimony. The testimony of Barbara Jean Harrell, the Petitioner's wife, was proffered, but not admitted. The Respondent presented the testimony of Bob Stewart, Assistant Bureau Chief of the Bureau of Licensing.
At the conclusion of the proceeding, the parties elected to order a transcript thereof and agreed to an extended briefing schedule in which to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders, concomitantly waiving the requirements of Rule 28-5.402, Florida Administrative Code. Those proposed findings of fact have been considered in the formulation of this Recommended Order and are treated therein. They are also specifically ruled on in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He
never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years.
During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales.
In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again.
The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony.
Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than
authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried.
The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted.
Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure.
In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as
corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time.
The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above.
Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(l), Florida Statutes (1987).
The Department has denied the application for examination and licensure of the Petitioner as a life, health, and general-lines agent based upon Section 626.611(2) (7) (14), Florida Statutes. Those provisions provide as follows:
626.611 Grounds for compulsory refusal, suspension, or revocation of agents, solicitors, or adjusters license or service representatives, supervising or managing general agents, or claims investigators permit-the Department shall deny, suspend, revoke, or refuse to rerew or continue the license, of any agent..., 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
any one or more of the following applicable grounds exist:
(2) Material misstatement, misrepresentation, or fraud in obtaining the license or permit or in attempting to obtain the license or permit.
(7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
(14) Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of one year or more under the law of the United States of America or of any state thereof or under the law of any country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.
The Respondent seeks to deny the Petitioner's application for examination and licensure on the basis that his application does not comport with Section 626.611(2), Florida Statutes, because, according to the Department, he made a material misstatement, misrepresentation, or fraudulent misrepresentation in seeking to obtain his license, by not disclosing that he had previously been charged with sexual battery, a felony. The Respondent also seeks to deny the examination and licensure based upon the Petitioner's plea of nolo contendere to the aforementioned felony, whici it construes to be a crime involving moral turpitude. Finally, the Respondent contends that the Petitioner's plea of nolo contendere and conviction of petty theft with regard to Case Number 86-1895MM, arising out of the "stolen ham incident" of 1986, is a crime involving dishonesty and, therefore, precludes his admission to the examination and licensure because it demonstrates a lack of fitness or trustworthiness to engage in the business of insurance, as contemplated in Section 626.611(7), Florida Statutes.
Concerning the Respondent's first basis for denial enumerated above, it is true that the Petitioner did not disclose, in response to question number 8, that he had been charged with the felony of sexual battery. However, when this apparent misstatement was brought to his attention by the Department in the investigatory and review process regarding his applications, he candidly and thoroughly disclosed all details and circumstances he was aware of concerning this charge. His unrefuted testimony in the record of this proceeding reveals that he equated the issue of being "charged" with a felony with an adjudication of guilt or conviction. Since he was never adjudicated guilty and had no felony conviction on his record, as corroborated by his attorney in that criminal matter, Mr. Durrance, by his letter in evidence in this proceeding, the Petitioner genuinely believed that disclosure of his involvement with the charge of felony sexual battery was not required.
It is concluded that he had a good-faith, honest belief that in answering "no" to question number 8, he was making an honest answer, because he believed that, given the fact that he was not adjudicated guilty, the negative answer he gave was the correct answer. It should also be pointed out that the Petitioner was required by the Department, in the investigatory process, to furnish certified copies of the court judgment, the criminal information filed against him, the sentencing order by the Circuit Judge, and other materials. He willingly, and in a cooperative spirit, obtained these documents and supplied them to the Department prior to the Department's giving notice of its intended agency action in the form of the denial letter which he sought to contest in this 120.57(1), Florida Statutes, proceeding. The point is that while he may have given an answer unsatisfactory to the Department, when he was apprised of
that circumstance, he voluntarily supplied all information requested by the Department so as to fully disclose all he knew concerning this criminal matter. It was only after that information had been supplied to the Department's satisfaction that it then entered IS notice of agency action in the form of the denial letter.
Offenses such as fraud and misrepresentation involve the element of scienter or intent. That is, the intent to misstate, misrepresent, or to fail to represent accurately must be an intent in the mind of the actor at the time the alleged misrepresentation or misstatement is made. The Petitioner's unrefuted testimony establishes that he had no such intent and, at most, made a mistake in the manner in which he answered question number 8. He voluntarily supplied all missing information concerning this matter to the Department before it made its decision.
Since a Section 120.57(1), Florida Statutes, proceeding was initiated by the Petitioner's election to dispute the denial on this and the other bases asserted by the Department, that action by the Department was rendered nonfinal. This proceeding, involving the taking of evidence and finding of facts regarding the circumstances underlying the manner in which he completed his applications, is designed to formulate the final agency decision on this issue, after taking into account all of the circumstances surrounding the answer given to question number 8; including his disclosures of information related to that subject matter during the investigatory process and including the testimony and evidence adduced at hearing. McDonald v. Department of Banking and Finance, 346 So.2d
569 (Fla. 1st DCA 1979). After considering all of the evidentiary circumstances surrounding the manner in which he answered that question, it must be concluded that he made no material misstatement, misrepresentation, or fraudulent response to question number 8 of the insurance applications involved because the record clearly reflects that he did not seek to conceal any felony conviction or charge, but rather answered in the negative because he was mistaken as to the meaning of that question. The Petitioner has consistently, throughout the criminal proceeding and the instant proceeding, maintained his innocence of that charge and, upon advice of his counsel, believed in and consistently asserted the fact that he was never convicted. Thus, it is concluded that no violation of Section 626.611(2), Florida Statutes, has been demonstrated as a proper basis for denial of his applications.
The above-quoted statutory authority reveals that the Department shall deny licensure if an applicant is guilty or has plead nolo contendere to such a felony involving moral turpitude. There is no question that sexual battery is a felony involving moral turpitude. The operative statute makes it, by its language, a mandatory basis for denial of licensure without regard to whether a judgment of conviction has actually been entered by the court having jurisdiction of the criminal case involved. This statute and the Petitioner's plea of nolo contendere in the criminal matter at issue is precisely the same circumstance with which the First District Court of Appeal was confronted in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. App. 1st Dist. 1985). That case involved the prosecution of a medical doctor for alleged violations of the practice standards of Section 458.331, Florida Statutes. The operative statute in that case was essentially identical to the one involved in the instant case in that it made mandatory denial, suspension or revocation or other penalty against licensure for a plea of nolo contendere, regardless of whether adjudication was withheld and regardless of whether a conviction was adjudged.
The licensee in that case argued before the court that such a statute was unconstitutional because it impermissibly usurped the authority of the Supreme Court to make rules of court, and that it violated due process and equal protection because it had no rational basis and did not bear a reasonable relation to a permissible legislative objective in regulating the licensure and practice standards for the protection of the public. The appellant/licensee in that case contended that Supreme Court rules of criminal procedure allowed various kinds of pleas available to an accused in a criminal proceeding and that the plea of nolo contendere is recognized as one that may be entered as a "plea of convenience," without any collateral implications to a defendant in other civil or criminal proceedings. The appellant in that case argued that the Supreme Court provided, in Rule 3.670, Florida Rules of Criminal Procedure, that a trial court may withhold adjudication, place a defendant on probation and that such a defendant would not be considered "convicted" by that withholding of adjudication of guilt, citing Page v. State Board of Medical Examiners, 141 Fla. 294, 193 So. 82 (1940). The appellant thus asserted that since he was not convicted in that case, he could not suffer any collateral consequences because of his nolo contendere plea. The appellant's point in the Ayala case was that, because Section 458.331(1) (c), Florida Statutes, like Section 626.611(14), Florida Statutes, purports to convert a nolo contendere plea, in effect, into a judgment of conviction, and attaches collateral consequences to such a plea, this section, in effect, amends the criminal rules, the exclusive province of the Supreme Court, in violation of the Separation of Powers Doctrine.
That appellant also argued that such a statute satisfies the standards for substantive due process only if it "bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary or oppressive". See, State v. Walker, 444 So.2d 1137, 1139 (Fla. 2d DCA 1984). The appellant maintained that that statute, like the one in the instant case, violated substantive due process standards because the presumption that a nolo contendere plea establishes a conviction and a violation of the minimum standards of professional conduct for a licensee, without any consideration of actual culpability, is not reasonably related to the objective of regulating the practice of medicine for the protection of the public (or, as in the instant case, the practice of the insurance profession). That licensee then pointed out that the effect of such a statute requires a doctor charged with a criminal offense to take the precarious route of being required to undertake the risk of a criminal trial to establish his innocence, simply in order to preserve his right to contest collateral disciplinary proceedings before the state licensing agency. In effect, if he chose to plead nolo contendere to avoid the risks of a criminal trial, he would thereby be deprived of the right to defend the charge against him before the Board of Medical Examiners.
Judge Zehmer, in writing the court's holding in the Ayala decision, stated the controlling opinion as follows:
Appellant's arguments have caused us to view with substantial concern the constitutional validity of Section 458.331(1)(c) as it was construed and applied by the Board of Medical Examiners in this case. The board construed this section, in effect, as establishing a conclusive presumption of guilt of the underlying criminal charges so that any consideration of the proffered circumstances surrounding appellant' s
nolo contendere plea and his reasons for entering such plea would be relevant only to potential mitigation of the punishment to be imposed. We do not reach the constitutional arguments, however, because we must first construe Section 458.331(1)(c) in any permissible way that will allow it to withstand constitutioial attack. Rich v. Riles, 212 So.2d 641 (Fla. 1968). We find that Section 458.331(1) (c) is clearly constitutional by construing the word "shall" in the last sentence of that subsection as permissive rather than mandatory in meaning. Rich v. Riles, 212 So.2d 641, 643. As so construed, the Board of Medical Examiners may presumptively consider the nolo contendere plea as evidence of a conviction for purposes of Chapter 458; however, in accordance with the Supreme Court's opinion in The Florida Bar v. Lancaster, 448 So.2d 1019, the board must allow appellant the opportunity to rebut this presumption and assert his innocence of the underlying criminal charges by explaining the reasons and circumstances surrounding his plea of nolo contendere, and thereby attempt to convince the board that he is not guilty of a crime in violation of the provisions of Section 458.331(1)(c). The board must consider this evidence in deciding appellant's guilt or innocence for purposes of the disciplinary charges. Such explanation may, of course, always be considered in mitigation of punishment if appellant should be adjudicated guilty by the board.
The court then directed that the cause be reversed and remanded since the board had erroneously and mandatorily construed and applied the pertinent statutory provision in reaching its decision that the licensee was guilty of a violation of the professional practice statute, by pleading nolo contendere to the criminal violation involved.
The testimony adduced by the Petitioner shows that he considered his nolo contendere plea, in effect, to be a plea of convenience made upon the recommendation of his counsel to "avoid the hassle and risks involved in a criminal trial". See, Ayala at pg. 1117. In the instant situation, the Petitioner consistently maintained his innocence of any wrongdoing with regard to the felony charge and the criminal proceeding, but accepted his counsel's advice to plead nolo contendere in return for a guaranee that he would only receive a probationary sentence and avoid the risk of trial. He consistently maintained his innocence in the instant proceeding and, in effect:, proved his innocence of the felony charge at issue. His testimony describing the circumstances under which the felorW charge arose and the fact that he had committed no sexual assault on his daughter was unrebutted by the Respondent.
The Petitioner's obvious, sincere candor and demeanor on the witness stand convinces the Hearing Officer that he was telling the truth in denying that he committed the act upon which the felony charge was predicated and that that criminal proceeding in reality arose from the rancor and bitterness engendered by the marital dissolution proceeding and ensuing dispute with his former wife over visitation rights concerning his daughter. His former wife's emotional state at the time seems to have been the precipitating factor. The Petitioner's testimony in this regard is corroborated to some extent by the statement in the probationary order of the Circuit Judge concerning the unlikelihood of conviction had the matter proceeded to trial. In summary, it has been established by the Petitioner that the basis for the felony charge at issue was untrue and that he was innocent of that charge. Therefore, in light of the Ayala opinion, the conduct, with which Section 626.611(14), Florida Statutes, is concerned, did not occur; and there is no basis under this subsection for denial of his applications for examination and licensure.
Turning now to the issue of the misdemeanor charge on the Petitioner's record, involving petty theft of a package of ham, the Respondent maintains that this offense demonstrates a lack of fitness or trustworthiness to engage in the business of insurance, in accordance with Section 626.611(7), Florida Statutes, quoted above. The Petitioner freely admits that this event occurred and is very remorseful about it. He established, as delineated in the above Findings of Fact, that it occurred during a period when he was suffering from depression related to his financial circumstances and his recently failed marriage and the ensuing bitterness and disputes which that engendered in his personal life. In this emotional state, and considering his physical handicap, he had had difficulty obtaining regular employment and was in severely straitened financial circumstances. In fact, the Petitioner paid for the coffee he obtained in the grocery store, but failed to pay for the package of ham. It may have been that he forgot to, but that is not claimed by the Petitioner. He freely admits his guilt of that petty theft, paid his fine, and has been remorseful about it ever since.
While that may have been a dishonest act on that occasion, it is, in actuality, more properly described as the desperate act of a desperate man, but not a dishonest, untrustworthy one. Since that unfortunate occurrence, the Petitioner has re-married and has rebuilt a stable personal life. He has shown the ability to honestly and productively employ himself in the insurance business. Under his temporary licensure status, he has succeeded in being one of the highest producers of insurance policy sales in his office, as well as premium collections. At the same time, his clients find him to be a warm, sensitive human being, quite honest and sincere in his business dealings. He scrupulously avoids misrepresenting any facts, material or otherwise, in connection with his insurance sales to clients. His supervisors and co-workers uniformly praise his work, for the short period of time he has been allowed to engage in insurance sales and premium collections, and heartily recommend his licensure, as well as his reputation for honesty and decency.
The Petitioner's testimony, as well as the testimony of the witnesses he called and the character evidence he introduced in the form of testimonial letters from business associates, clients and friends, some of whom have known him well for many years, established that whatever emotional deficit he may have been suffering at the time he was convicted of petty theft has been overcome. His rehabilitation has been sufficiently demonstrated to justify his licensure.
While a strict reading of the statute involved might indicate that a petty theft conviction shows a lack of fitness or trustworthiness to engage in
the business of insurance, the human beings charged with the interpretation of that statute have the legal discretion and the moral ability to forgive under appropriate circumstances. The evidence adduced by the Petitioner in this case clearly established that ample circumstances have been proven justifying forgiveness of that one instance of misconduct proven in this proceeding and that it should not militate against the admission of the Petitioner to the subject examination and his ultimate licensure.
The shame the Petitioner has experienced as a result of that unfortunate act, in addition to the monetary fine he paid, has amply remunerated society for the wrong which the Petitioner caused on that one isolated occasion. No further penalty should be exacted of him for it.
In summary, the Petitioner has demonstrated that he is amply competent and fit to engage in the business of insurance and that he is an honest, trustworthy person. It is concluded that his applications for admission to the examination in question and ultimate licensure, if the appropriate conditions are met, should be granted.
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore,
RECOMMENDED:
That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted.
DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1990.
APPENDIX TO RECOMMENDED ORDER
The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made.
Respondent's Proposed Findings of Fact
Accepted.
Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made.
Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery.
Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented.
COPIES FURNISHED:
Mr. William C. Harrell
P.O. Box 5503 Jacksonville, FL 32247
John C. Jordan, Esq.
Department of Insurance and Treasurer
Office of Legal Services
412 Larson Building Tallahassee, FL 32399-0300
Honorable Tom Gallagher State Treasurer and
Insurance Commissioner Department of Insurance
and Treasurer
The Capitol, Plaza Level Tallahassee, FL 32399-0300
Don Dowdell, Esq. General Counsel Department of Insurance
and Treasurer
The Capitol, Plaza Level Tallahassee, FL 32399-0300
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AGENCY FINAL ORDER
=================================================================
OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE
IN THE MATTER OF: CASE NO.: 90-L-582JJ
WILLIAM C. HARRELL DOAH CASE NO. 89-2767
/
FINAL ORDER
THIS CAUSE came on before the Treasurer, acting in code capacity as Insurance Commissioner of the State of consideration and final agency action. On April 24, 1989, the
Department of Insurance (hereinafter referred to as "Department") notified WILLIAM C. HARRELL (hereinafter referred to as "Petitioner") by letter that his applications for examination and licensure as a life and health agent and a general lines agent (limited to industrial fire) were denied. The specific reason for the denial was that on or about March 3, 1988, in Case No. 87-107CF, Petitioner pled nolo contendere to sexual battery, a felony involving moral turpitude. Petitioner failed to disclose this information on his applications for licensure which he submitted to the Department on August 30, 1988. In the same letter dated April 24, 1989, Petitioner was also notified that his applications for examination and licensure were being denied because on or about April 7, 1986, in Case No. 86-1895MM, he pled nolo contendere to petit theft and that the foregoing demonstrated a lack of fitness or trustworthiness to engage in the business of insurance. Petitioner timely filed a request for a formal proceeding pursuant to Section 120.57(1), FloridaStatutes. Pursuant to notice, the matter was heard before Michael P. Ruff, Hearing Officer, Division of Administrative Hearings, on August 22, 1989, in Jacksonville, Florida.
After considering the evidence, argument and testimony presented at hearing, and subsequent written submissions of the parties, the Hearing Officer issued his Recommended Order (attached hereto as Exhibit A) on February 9, 1990. The Recommended Order included Findings of Fact, Conclusions of Law and the Recommendation that the applications of Petitioner for examination and licensure as a life, health and general lines agent be granted.
The Department filed exceptions to the Recommended Order of the Hearing Officer on February 19, 1990. The Petitioner did not file exceptions.
RULINGS ON DEPARTMENT'S EXCEPTIONS
The Department's filed exceptions to several of the Hearing Officer's Findings of Fact and Conclusions of Law and to the Recommendation.
The Department took exception to the Hearing Officer's Finding of Fact in paragraph 1, with respect to the relevancy of an automobile accident and injuries incurred in 1970. The Department's exception is rejected. The 1970 automobile accident and ensuing circumstances are relevant to the mitigating
factors considered by the Hearing Officer and to the credibility Of the witness/Petitioner.
The Department took exception to the Findings Of Fact in paragraphs 2 and
3 regarding the relevancy of Petitioner's marital difficulties and the Hearing Officer's speculation as to the plausibility of the allegations contained in the amended information in this matter. The Department's exception is accepted in part and rejected in part. Petitioner's marital difficulties are relevant to the consideration of mitigating factors. However, the detailed findings, especially the hearsay statements attributed to his former wife, are not supported by competent and substantial evidence and therefore the exception is, to this extent, accepted. Furthermore, it was improper for the Hearing Officer to speculate as to the plausibility of the allegations in the amended information in this matter.
The Department took exception to the Findings of Fact contained in paragraphs 4 and 5, as there was not competent and substantial evidence in the record to indicate that the Assistant Public Defender, E.E. Durrance, advised the Petitioner regarding the possible consequences of a nolo contendere plea in an administrative proceeding. The Department's exception to paragraph 4 is rejected. This Finding of Fact is clearly established by competent and substantial evidence. The Department's exception to paragraph 5 is rejected.
The materiality of the misstatement is in issue herein and the Hearing Officer must consider the credibility of the witness and his testimony. This Finding of Fact is based on testimony clearly adduced at hearing.
The Department took exception to the Hearing Officer's Findings of Fact contained in paragraph 6 wherein the Hearing Officer found that the Petitioner did not commit the crime of sexual battery. The Department's exception is accepted. It was error for the Hearing Officer to grant the Petitioner a trial de novo on the issue of whether he was guilty of the charge of sexual battery.
The Department took exception to the Findings of Fact contained in paragraphs 7 and 8 wherein the Hearing Officer found that Petitioner's conviction on the charge of petit theft was an isolated incident and occurred because Petitioner was depressed over the dissolution of his marriage. The Department's exception to paragraph 7 and 8 are rejected. The Hearing Officer as the trier of fact may consider the testimony adduced and the credibility of the witness to make his finding. The information was relevant to the Hearing Officer's determination of the witness' fitness or trustworthiness to engage in the business of insurance.
The Department also took exception to the Findings of Fact contained in paragraph 9. The Department's exception is accepted in part and rejected in part. The record established that it took approximately five months for the Petitioner to provide the Department with all the necessary documentation pertaining to his criminal history and therefore such efforts may or may not be "noteworthy" and this fact is clearly unrecognized in the finding. However the remainder of the finding is proven by competent and substantial evidence.
The Department took exception to the Hearing Officer's Conclusions of Law contained in paragraphs 4 through 7 wherein the Hearing Officer concluded, as a matter of law, that the Department failed to establish a violation of Section 626.611(2), Florida Statutes. The Department's exception is rejected. The evidence in the record does clearly establish that Petitioner did not disclose that he had been charged with sexual battery when he had the opportunity to do so in question number 8 of the Department's application for examination and
licensure. However, as the Hearing Officer states: "Offenses such as fraud and misrepresentation involve the element of scienter." The trier of fact herein found this element lacking. Therefore, no violation of s. 626.611(2), Florida Statutes is present.
The Department took exception to the Hearing Officer's Conclusions of Law contained in paragraphs 9 through 13 wherein the Hearing Officer concluded as a matter of law that the Petitioner did not commit the crime of sexual battery.
The Department's exception is accepted. The Hearing Officer, in this instance, did not attempt to go behind a conviction and determine guilt or innocence because no conviction exists with the given facts. Further, the Hearing Officer did not dispute that a penalty is possible because of adjudication being withheld. Rather, the Hearing Officer relied on an interpretation in Ayala v.
Department of Professional Regulation, 478 So.2d 1116 (Fla. App. 1st Dist. 1985), to evaluate the facts and rule on the guilt or innocence of the Petitioner. Ayala involved an interpretation of Section 458.331(1)(c), Florida Statutes. Although the ultimate result of both section 458.331(1)(c), Florida Statutes and section 626.611(14), Florida Statutes is the same, the two statutes differ in that section 458.331(1)(c), Florida Statutes (1985) as applied in Ayala, provides that a nolo contendere plea "shall be considered a conviction" thereby making the appellant guilty as a matter of law of a violation. Section 626.611(14), Florida Statutes, does not purport to make a nolo plea a conviction. In fact, the statute clearly states "... without regard to whether a judgment of conviction has been entered." Ayala argues that such conclusive use of a nolo contendere plea which attaches collateral consequences to such plea, amends the criminal rules and is violative of the separation of powers doctrine in Article II, Section 3, of the Florida Constitution. Neither the Hearing Officer nor the Department can rule on such an argument and the District Court of Appeal chose not to rule on this question, but rather chose to construe Section 458.331(1)(c), Florida Statutes in a way that allowed it to withstand constitutional attack. However, because the statute interpretated in Ayala and the statute at hand are distinguishable, the interpretation as applied in Ayala cannot be applied to this case and therefore, the Hearing Officer did not have the authority to grant the Petitioner a trial de novo and find that he did not commit the aforementioned felony.
The Department took exception to the Hearing Officer's Conclusions of Thaw contained in paragraphs 14 through 19 wherein the Hearing Officer held that the conviction of petit theft did not demonstrate a lack of fitness or trustworthiness to engage in the business of insurance in violation of Section 626.611(7), Florida Statutes. The Department's exception is rejected. The Hearing Officer was in the best posture to hear the testimony and weigh the credibility of the witness.
Finally, the Department took exception to the Hearing Officer's Recommendation. There is competent and substantial evidence in the record which clearly establishes that the Petitioner pled nolo contendere to the charge of sexual battery. Sexual battery is an offense which the Department construes to be a felony involving moral turpitude. This construction is not disputed by the findings of the Hearing Officer. Further, the operative statute, by its language, makes this a compulsory denial of an applicant's eligibility for licensure. Therefore, the Department's exception to the Hearing Officer's Recommendation is accepted.
IT IS THEREFORE ORDERED THAT:
WILLIAM C. HARRELL'S applications for examination and licensure as a life and health agent and general lines agent limited to industrial fire are DENIED.
WILLIAM C. HARRELL, may immediately reapply and provided he is otherwise qualified, upon his reapplication to the Department for examination as a life and health insurance agent and general lines limited to industrial fire, agent, and with truthful reply to the criminal charge, the Department shall not deny said reapplication based upon the facts as set forth in this Order.
Any party adversely affected by these proceedings is entitled to seek judicial 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 412 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 3rd day of October, 1990.
TOM GALLAGHER
Treasurer and Insurance Commissioner
Copies Furnished To:
MICHAEL P. RUFF, Esquire
Hearing Officer
Division of Administrative Hearings The DeSoto Building
2900 Apalachee Parkway
Tallahassee, Florida 32399-0300
JOHN JORDAN, Esquire Department of Insurance Division of Legal Services
412 Larson Building
Tallahassee, Florida 32399-0300
WILLIAM C. HARRELL
P.O. Box 5503
Jacksonville, Florida 32247
| Issue Date | Proceedings |
|---|---|
| Feb. 09, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 03, 1990 | Agency Final Order | |
| Feb. 09, 1990 | Recommended Order | Petitioner not guilty of fraud etc on applicaby false answer due to mistake;entitled to show no actual guilt if federal conviction based on nolo plea facts regarding trustworthy |
