STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-819

)

WILLIAM POLERO, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on June 17, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Clark R. Jennings, Esquire

428-A Larson Building Tallahassee, Florida 32301

For Respondent: Donald L. Ferguson, Esquire

2915 Southwest 27th Avenue Miami, Florida 33133

BACKGROUND

In this proceeding, Petitioner, Department of Insurance, seeks to take disciplinary action against the limited surety agent license of Respondent, William Polero, for allegedly violating certain provisions in Chapter 648, Florida Statutes. Generally, it is alleged that between March 19, 1979, and May 6, 1979, Respondent prepared a power or letter of attorney for five individuals without their knowledge and consent and forged their names thereto and was subsequently convicted of a felony for said acts in Circuit Court for Dade County.

Respondent disputed the allegations and requested a formal hearing pursuant to Subsection 120.57(1) , Florida Statutes. The matter was forwarded to the Division of Administrative Hearings by Petitioner on March 19, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated April 13, 1982, the final hearing was scheduled for June 17, 1982, in Miami, Florida.

At the final hearing no witnesses were presented by either party. Rather, the parties stipulated as to the admission of Exhibits A-R. The parties also waived their right to submit proposed findings of fact and conclusions of law.

At issue herein is whether Respondent should be disciplined for the alleged violations set forth in the Administrative Complaint.

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

1. Respondent, William Polero, is currently licensed as a limited surety agent by Respondent, Department of Insurance. He has held a license since 1979. His license authorizes him to represent Cotton Belt Insurance Company, Inc.

   
   

2. On May 6, 1979, Respondent was indicted on five counts of forgery in the Circuit Court in and for Dade County, Florida. On September 9, 1979, Respondent was found guilty of all charges. His conviction was ultimately affirmed by the Third District Court of Appeal on November 4, 1980.

   
   

3. Polero was sentenced to thirty months in the state penitentiary on each of the forgery counts, each to run concurrently. He is now incarcerated at Glades Correctional Institution in Belle Glade, Florida.

   
   

4. Respondent has recently sought to challenge his conviction on the ground he received ineffective counsel during his trial in violation of the Sixth Amendment of the United States Constitution. The matter is presently pending before the Third District Court of Appeal.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. Respondent is charged in Counts I through V with having prepared a power or letter of attorney for five individuals without their knowledge and consent and with having forged their names to the instruments. For this, he is charged with having violated Subsections 648.45(1)(b), (f) and (j), Florida Statutes.

   
   

7. Petitioner presented no evidence in support of its allegations other than the judgment of conviction rendered in circuit court in 1979. Such a showing is insufficient to support the allegations since a judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of the facts on which it was rendered. Stevens v. Duke, 42 So.2d 361 (Fla. 1949); State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943). This being so, Counts I through V of the Administrative Complaint must be dismissed.

   
   

8. Respondent is charged in Count VI with having been convicted of a felony [s. 648.45(1)(e)], failing to be actively engaged in the bail bond business and maintaining a place of business accessible to the public [s. 640.34(2)(c) and Rule 4-1.04], and by reason of the foregoing with having violated a Department rule, order or regulation [s. 648.45(1)(g)].

   
   

9. The evidence discloses that Respondent was indeed convicted of a felony in 1979. Further, since he is now incarcerated in a state penal institution, he cannot be actively engaged in the bail bond business as required by statute and rule. Accordingly, it is concluded that Respondent is guilty as charged in Count VI of the complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Count VI and that

all other charges in the Administrative Complaint be DISMISSED. It is further RECOMMENDED that Respondent's license as a limited surety agent be REVOKED. DONE and ENTERED this 2nd day of July, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1982.

COPIES FURNISHED:

Clark R. Jennings, Esquire 428-A Larson Building Tallahassee, Florida 32301

Donald L. Ferguson, Esquire 2915 Southwest 27th Avenue Miami, Florida 33133

Docket for Case No: 82-000819

Orders for Case No: 82-000819