STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD LEVINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3898

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on March 12, 1991, in Ft. Lauderdale, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark E. Berman, Esquire

2450 Hollywood Boulevard

Suite 401

Hollywood, Florida 33020

For Respondent: Gordon Thomas Nicol, Esquire

Division of Legal Services

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUE

The issue in this case is whether Howard Levine (Petitioner) is qualified to take the examination for licensure by the Department of Insurance (Respondent) as a general lines, and a life and health insurance agent.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf and introduced eight exhibits. The Respondent introduced six exhibits.

The transcript of the final hearing was filed on March 21, 1991, and thereafter, the parties were allowed ten days within which to file proposed recommended orders. On April 1, 1991, the date on which the parties' proposed recommended orders were to be filed, the Petitioner filed a Voluntary Dismissal of his request for hearing, and withdrew his applications "without prejudice to re-submit amended applications at a later date." Since the final hearing requested by the Petitioner has been held and the evidentiary record prepared, this Recommended Order is issued for whatever final action is deemed appropriate by the Respondent, notwithstanding the Petitioner's Voluntary Dismissal. A Recommended Order does not finally determine any of the issues presented, but

does set forth the undersigned's findings based upon the evidence presented at final hearing. It is for the Respondent, as the agency with final action authority, to determine what, if any, final action shall be taken with regard to the issues presented at hearing.

FINDINGS OF FACT

1. Petitioner applied to the Respondent for licensure as a general lines, and a life and health insurance agent on or about February 8, 1990. By letter dated May 17, 1990, the Petitioner was informed that his applications for examination were denied based upon a finding that he lacked fitness or trustworthiness to engage in the insurance business. Petitioner timely requested a hearing to determine if he is qualified to take these licensure examinations.

   
   

2. On or about January 3, 1986, the Petitioner entered a plea of guilty to two counts in a superseding indictment filed in Case Number 84-00603(S)-05 in the United States District Court for the Eastern District of New York. Based upon this plea, the Petitioner was found guilty of conspiracy to defraud an insurance company and filing a false insurance claim, each count being a felony involving moral turpitude. He was sentenced to three years probation, and ordered to pay a fine of $10,000. Special conditions of probation included prohibiting the Petitioner from engaging in the insurance business, and requiring that he make restitution to the Hartford Insurance Group in the sum of

   $1,778.08.

   
   

3. On or about August 15, 1986, the Insurance Department of the State of New York revoked the Petitioner's insurance broker's license, based upon his felony conviction as set forth above.

   
   

4. The Petitioner successfully completed his period of probation in New York on January 2, 1989, including payment of the $10,000 fine and restitution in the amount of $1,778.08. On or about September 22, 1989, the Board of Parole of the State of New York issued a Certificate of Relief from Disabilities to the Petitioner which removes bars to employment and licensure automatically imposed by the laws of the State of New York as a result of his conviction. However, this Certificate specifies that it shall not prevent any administrative or licensing body or board from relying upon this conviction as a basis for the exercise of its discretionary power to refuse to issue a license.

   
   

5. The Petitioner failed to disclose on his applications for examination that his insurance broker's license in New York had been revoked. In fact, he specifically answered "no" to the question on these applications concerning whether his license had ever been revoked in another state.

   
   

6. The Petitioner did disclose on his applications for examination that he had been charged with a felony in New York, and indicated that he had entered a plea to a single charge. He stated on his applications, however, that he had not been convicted by any court.

   
   

7. The Petitioner claims that he did not know that his New York license had been revoked. Rather, he testified that he had sought to surrender his license in New York after his conviction in 1986, and thought that the administrative action had been concluded with his license surrender. He claims he never was notified of any hearing, and did not receive a copy of the order of revocation issued by the Insurance Department in New York.

8. The Petitioner also claims that he entered his plea of guilty as a matter of convenience in order to avoid a long and expensive trial, and on the advise of his counsel. He maintains that he did not file a false insurance claim and did not conspire to defraud any insurance company. Rather, he testified that he was very ill at the time, and did not expect to live. In order to avoid the strain and expense of a trial, and since he did not believe he would ever again be physically able to engage in the insurance business, he agreed to resolve the criminal charges against him with a plea of guilty to two counts in the superseding indictment issued against him. Finally, he testified that he indicated on his applications that he had not been convicted by any court since he had not had a jury trial, and he was under the impression that a person can be convicted only if found guilty by a jury.

   
   

9. Based upon his demeanor at hearing, it is found that the Petitioner is a credible witness and that his claims that he did not know his New York license had been revoked and that he thought a person could only be convicted if found guilty by a jury are truthful. Nevertheless, the Petitioner was in error regarding both claims, and as a result, he answered questions on his applications in a false and incomplete manner. He was convicted on two felony counts, and his license was revoked in New York based on those convictions.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Since this is a case in which Petitioner is seeking to establish his qualifications to take the licensure examinations, the Petitioner has the burden of establishing his qualifications by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Specifically, an applicant who seeks to establish that the initial review of his application was incorrect, must show that the agency's initial decision was arbitrary or capricious. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel. Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported

    by facts or logic, or despotic. Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as

    such evidence as a reasonable person would accept as adequate to support a conclusion.

    
    

12. Petitioner challenges the Respondent's determination that he lacks fitness and trustworthiness to engage in the business of insurance. Sections 626.611(1),(2),(7) and (14), Florida Statutes, provide that the Respondent "shall" deny any application for licensure if an applicant makes a material misstatement or misrepresentation in his application, has plead guilty to a felony, or has demonstrated a lack of fitness or trustworthiness. Section 626.621(8), Florida Statutes, confers discretionary authority upon the

    Respondent to deny any application for licensure where the applicant has plead guilty to a felony. Sections 626.731(1) and 626.785(1), Florida Statutes, also give the Respondent the authority to refuse licensure to any applicant found to be untrustworthy or incompetent.

    
    

13. The evidence in this record clearly establishes that the Petitioner's applications for examination contained material misstatements and misrepresentations concerning the revocation of his New York broker's license and his convictions on two felony counts in the New York federal court. The fact that the Petitioner honestly did not know that his New York license had been revoked or that he had been convicted, does not relieve him of the responsibility to correctly and competently answer all questions on his applications for examination in Florida.

    
    

14. The Respondent is required to refuse licensure to any applicant who has previously been convicted of a felony, and it also has the discretion to deny licensure for this same reason. See Sections 626.611(14) and 626.621(8). The fact that Petitioner pled guilty to two felony counts and was sentenced thereon is clearly shown in the record, and Petitioner's ignorance or lack of understanding of the legal effect of this plea does not excuse him from the unambiguous effect of these statutes.

    
    

15. An applicant has an obligation to truthfully answer all questions about his background on his application, and if he is uncertain about any items, he must endeavor to find out the correct information before misstating or misrepresenting matters on his application. A material misstatement, regardless of how innocently made, is still a disqualifying factor since it raises serious questions about the applicant's competency to understand the legal effect of important actions which he has taken, or which have been taken by others involving him.

    
    

16. It is, therefore, concluded that the Petitioner has failed to establish his entitlement to take the licensure examinations for a general lines, and life and health insurance agent in the State of Florida.

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified to take the examination for licensure as a general lines, and a life and health insurance agent.

DONE AND ENTERED this 2nd day of April, 1991 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991.

APPENDIX TO RECOMMENDED ORDER

Rulings on the Petitioner's Proposed Findings of Fact:

1. Adopted in Finding 1.

2. Rejected as a summary of the evidence (Exhibit P-2) and not a proposed finding of fact.

3. Adopted in Finding 1.

4. Adopted and Rejected, in part, in Finding 6.

5. Adopted, in part, in Finding 2, but otherwise rejected as unnecessary, simply a summation of testimony, and as not based on competent substantial evidence.

6. Adopted in Finding 8.

7. Rejected in Finding 9.

8. Rejected as a comment on the record and not a proposed finding of fact.

Rulings on the Respondent's Proposed Findings of Fact.

COPIES FURNISHED:

Mark E. Berman, Esquire 2450 Hollywood Boulevard

Suite 401

Hollywood, FL 33020

Gordon Thomas Nicol, Esquire Division of Legal Services

412 Larson Building Tallahassee, FL 32399-0300

Bill O'Neil, Esquire General Counsel

The Capitol, PLaza Level Tallahassee, FL 32399-0300

Honorable Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-003898

Orders for Case No: 90-003898