STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4700

)

DAVID FELIX MONACO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 16, 1996, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Ross S. Burnaman, Esquire

Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: David Felix Monaco, pro se

Apartment 207E 7610 Stirling Road

Hollywood, Florida 33024 STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the First Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On July 20, 1995, the Department filed an Administrative Complaint against Respondent, charging him with violating certain statutes regulating his conduct as an insurance agent, and Respondent timely requested a formal hearing regarding the Department's allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

On October 20, 1995, Petitioner filed its Motion for Leave to File Amended Complaint. That Motion was granted by Order entered November 14, 1995, and the First Amended Administrative Complaint became the charging document in this cause.

At the final hearing Petitioner's Exhibits numbered 1 and 2 were admitted in evidence, and Petitioner's several requests for official recognition were granted. The Respondent testified on his own behalf.

Although both parties requested leave to submit post-hearing proposed findings of fact in the form of proposed recommended orders, only Petitioner did so. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed in the State of Florida as a life and health insurance agent. His licensure as a life and variable annuity contracts agent occurred on April 5, 1993.

   
   

2. On September 9, 1994, Respondent pled nolo contendere to criminal charges pending before the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. The charges were third degree grand theft, a felony, and practicing law while his license was suspended, a misdemeanor. Upon entry of his plea, adjudication was withheld, and Respondent was placed on probation for two years and ordered to make restitution in the amount of $400.

   
   

3. Respondent did not notify Petitioner in writing within 30 days after pleading nolo contendere to that felony.

   
   

4. Respondent's plea and criminal charges related to a fee in the amount of $l,000 which Respondent collected from a client to perform legal services at a time when Respondent's license to practice law was suspended. Although Respondent refunded $600 of that fee to the client, Respondent determined that the client had received $400 worth of services and refused to refund that amount until after the client filed litigation and obtained a civil judgment against Respondent.

   
   

5. On or about October 20, 1995, the Florida Department of Corrections filed with the Broward County Circuit Court an affidavit alleging that Respondent had violated the Circuit Court's Order of Probation in a number of different ways. Based upon that affidavit, the Circuit Court issued a Warrant for Respondent's arrest on October 24, 1995.

   
   

6. On January 11, 1996, Respondent was disbarred, effective immediately, by the Supreme Court of Florida.

   
   

7. At the time of the final hearing in this cause, Respondent was not actively engaged in the insurance business. Rather, Respondent had been employed at the Miami Market for approximately 1-1 years, taking inventory and supervising crews.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

9. The First Amended Administrative Complaint filed in this cause alleges that Respondent failed to notify Petitioner that he had pled nolo contendere to a felony, thereby violating Sections 626.611(7) and (14) and 626.621(8) and (11), Florida Statutes. Although Respondent testified that his attorney timely

   notified Petitioner, that testimony was hearsay only, was not corroborative of any competent evidence, and cannot form the basis for a finding of fact.

   Section 120.58(1)(a)1, Florida Statutes.

   
   

10. Section 626.611, Florida Statutes, requires Petitioner to suspend or revoke the licenses and eligibility to hold a license of any insurance agent on the following grounds:

    
    

    (7) Demonstrated lack of fitness or trustworth- iness to engage in the business of insurance.

    * * *

    (14) . . . having pleaded . . . nolo contendere to a felony . . . which involves moral turpitude,

    without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

    
    

11. Section 626.621, Florida Statutes, permits Petitioner to suspend or revoke the licenses and eligibility to hold a license of any agent on the following grounds where suspension or revocation is not mandated by Section 626.611:

    
    

    (8) . . . having pleaded . . . nolo contendere to a felony . . . without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

    * * *

    (11) Failure to inform the Department in writing within 30 days after pleading . . . nolo contendere to . . . any felony . . . without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case.

    
    

12. Petitioner has met its burden of proving, by clear and convincing evidence, that Respondent has violated Section 626.611(8) and (11), thereby allowing Petitioner to revoke or suspend his licenses and eligibility to hold a license. Respondent has pled nolo contendere to a felony and failed to so advise Petitioner in writing within 30 days thereof.

    
    

13. Similarly, Petitioner has met its burden of proving that Respondent has violated Sections 626.621(8) and (11), thereby requiring Petitioner to revoke or suspend his licenses and eligibility to hold a license. Respondent has demonstrated his lack of trustworthiness and that his crime involved moral turpitude since his criminal charges resulted from Respondent continuing to practice law and charging fees for legal services in flagrant disregard of his knowledge that his license to practice law had been suspended. Respondent has demonstrated his disregard for the legal system, the laws of this State, and the authority of The Supreme Court of Florida by violating its order suspending Respondent's license to practice law.

    
    

14. Chapter 4-231, Florida Administrative Code, contains the penalty guidelines to be used when assessing a penalty for violation of the Insurance Code. Rule 4-231.080 provides a penalty of a 6-month suspension for violating Section 626.611(7), and Rule 4-231.090 provides a penalty of a 3-month suspension for violating Section 626.621(11). Those rules reference Rule 4-

    231.150 for violations of Sections 626.611(14) and 626.621(8), Florida Statutes.

15. Rule 4-231.150(2)(b), Florida Administrative Code, provides for a 12- month suspension for pleading guilty to a felony involving moral turpitude which has a bearing on an agent's trustworthiness to hold a license. However, Rules

    4-231.040(3) and 4-231.160, Florida Administrative Code, require the consideration of aggravating and mitigating factors, some of which apply to two of Respondent's violations of the Insurance Code and some of which apply to the others.

    
    

16. As to Respondent's violations arising from his nolo contendere plea, only 1 years have passed, Respondent is still on probation, and restitution was not voluntarily made but has required both a civil judgment and an order making restitution a condition of his criminal probation. No evidence was offered as to the outcome of the charge of violation of probation or as to whether Respondent's civil rights have been restored.

    
    

17. However, the willfulness of Respondent's conduct cannot be ignored. Respondent has convincingly demonstrated that the suspension of a professional license does not impress him. Since license revocation is authorized for each of Respondent's violations of the Insurance Code proven in this proceeding, revocation is the only meaningful remedy and is appropriate under these circumstances.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the First Amended Administrative Complaint filed against him and revoking his licenses and his eligibility for licensure as an insurance agent.

DONE and ENTERED this 5th day of March, 1996, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 5th day of March, 1996.

APPENDIX TO RECOMMENDED DOAH CASE NO. 95-4700

1. Petitioner's proposed findings of fact numbered 1, 4-12, and 15 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

3. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the competent evidence in this cause.

4. Petitioner's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause.

5. Petitioner's proposed finding of fact numbered 14 has been rejected as being subordinate to the issues herein.

COPIES FURNISHED:

Ross S. Burnaman, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Mr. David Felix Monaco Apartment 207E

7610 Stirling Road

Hollywood, Florida 33024

Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 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: 95-004700

Orders for Case No: 95-004700