STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKAL TALIB HAMIN, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1435

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

) DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2388

)

MIKAL TALIB HAMIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Bearing Officer, Sharyn L. Smith, held a formal hearing in this case on August 9, 1983, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Clark R. Jennings, Esquire

Legal Division

Larson Building, Room 413-B Tallahassee, Florida 32301

For Respondent: Thomas F. Woods, Esquire

WOODS JOHNSTON & CARLSON

130 East Lafayette Street, Suite 112 Tallahassee, Florida 32301

The issue for determination at the final hearing was whether the Petitioner's application for examination and/or licensure as a general lines insurance agent should be denied, and whether his licenses as an ordinary life and disability agent should be revoked.

At the final hearing, Petitioner's Exhibits 1-2 were offered and admitted into evidence. Mikal Talib Hamin and Akim Shaeed testified for the Petitioner. Respondent's Exhibits 1-7 were offered and admitted into evidence.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearings they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

By agreement of the parties, these cases were consolidated for final hearing. 1/

FINDINGS OF FACT

1. On October 19, 1982, the Petitioner Mikal Talib Hamin applied for licensure as a general lines insurance agent.

   
   

2. The Respondent Department of Insurance denied the Petitioner's application on March 29, 1983, due to his failure to inform the Department on other applications for insurance licensure that he had been charged with or convicted of a felony.

   
   

3. This denial was based on the Petitioner's previous applications for licensure as an ordinary life insurance and health insurance agent in which the Petitioner informed the Department that he had neither been charged with nor convicted of a felony.

   
   

4. On March 3, 1973, the Petitioner, then known as Michael Thomas Hanks was convicted of robbery in the criminal court of record, Dade County, Florida, and sentenced to 15 years in prison.

   
   

5. The Petitioner was released from prison on October 25, 1977 and was on parole supervision until October 25, 1979.

   
   

6. When the Petitioner was convicted, he was 17 years old. Since his release from prison, the Petitioner has obtained his GED, been steadily employed and has encountered no other problems with the criminal justice system. The Petitioner is married and is three semesters away from obtaining a college degree in Business Administration.

   
   

7. Due to the Petitioner's positive adjustment to parole, Martin Carroll, the Petitioner's parole officer recommended that the Parole Commission terminate the Petitioner's parole ahead of schedule. The Parole Commission granted early termination and the Petitioner's civil rights were restored effective March 22, 1979, by the Office of Executive Clemency.

   
   

8. On January 24, 1982 and March 26, 1982, the Petitioner applied for licensure as a disability and ordinary life agent, respectively. Both of these applications asked the Petitioner whether he had been charged with or convicted of a crime and on both applications he stated "no".

   
   

9. The Petitioner subsequently sat for these exams, passed the exams and was licensed as a disability and ordinary life agent.

   
   

10. In completing these applications, the Petitioner consulted Jeff Dickerson, an insurance agent for whom be worked at the time, who advised the Petitioner that he need not disclose his previous conviction because of the length of time that had passed and the fact the Petitioner was only 17 when the

    conviction occurred. The Petitioner followed this advice and did not disclose his past felony conviction on his applications.

    
    

11. Subsequently, the Petitioner went to work for another insurance agent, Hakim Shaeed, and applied for licensure as a general lines agent. In completing this application, the Petitioner consulted Shaeed, who informed him that the prior felony conviction should be disclosed to the Department.

    
    

12. The Petitioner informed the Department of the misstatement on his prior applications, pending application and his felony conviction by letter to Joe Crutchfield, dated March 21, 1983.

    
    

13. On November 15, 1978, the Petitioner changed his name from Michael Thomas Hanks, the name under which he was convicted, to Mikal Talib Hamin.

    
    

14. The Petitioner submitted letters from Nashid Sabir, Esquire, Lorrett Duffy, Personnel Administrator, Broward Cablevision, Alphonse Wright, Coordinator Drug Abuse and Prevention Program, Liberty City Youth, Hakim Fakir,

    P.U.L.S.E. Coordinator, and B. W. Smith, an insurance agent, attesting to his good character and reputation in the community.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 626.611, Florida Statutes, requires the Department of Insurance to deny, suspend, revoke, or refuse to renew or continue the license of any agent, if it finds that as to the applicant, licensee, or permittee, any one or more of the following grounds exist:

    
    

    (2) Material misstatement, misreore- sentation, 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 pled 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 juris- diction of such cases.

    
    

17. Section 626.621, Florida Statutes, empowers the Department of Insurance to revoke or suspend an insurance agent's license for, inter alia, any cause for which issuance of a license or permit could have been refused bad it the existed and had been known to the Department, Section 626.621(1), Florida Statutes, and having pled guilty or nolo contendere to a felony in this state or any other state without regard to whether a judgment or conviction has been entered by the court having jurisdiction of such cases, Section 626.621(8), Florida Statutes.

18. Regarding the violation of Section 626.611(2), Florida Statutes, the record establishes that the Petitioner consulted Jeff Dickerson, a licensed insurance agent, and based on a discussion with Dickerson, believed that his prior-felony conviction need not be disclosed because of his age at the time of the conviction and the length of time whicb bad passed since the conviction. While the Petitioner's answers on the applications were wrong, they were not submitted by the Petitioner to intentionally mislead the Department or misstate his prior record. This conclusion is buttressed by the Petitioner's action in promptly notifying the Department of his mistake on the applications when another insurance agent, Hakin Sbaeed, gave him different advice when he was completing a third application for licensure. Accordingly, a violation of Section 626.611(2), Florida Statutes, has not been established since insufficient evidence exists to prove an intentional misrepresentation by Petitioner.

    
    

19. The Petitioner's alleged violation of Section 626. 611(7), Florida Statutes, that he lacks the fitness or trustworthiness to engage in the business of insurance, is based on the Petitioner's sworn denial on his applications concerning his prior felony conviction. Since the Petitioner did not intentionally misrepresent or misstate his prior conviction, a violation of Section 626.611(7), Florida Statutes, has not been demonstrated.

    
    

20. The Department has proved violations of Sections 626.611(14), 626.621(8) and 626.621(1), Florida Statutes, since the Petitioner was convicted of robbery, a felony under Florida law, which is also a crime of "moral turpitude", see Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), and the Department could have refused to issue an insurance license under these sections to tbe Petitioner if the prior robbery conviction had been disclosed.

    
    

21. However, in 1973, the Legislature amended Section 112.011, Florida Statutes, to prohibit state and local licensing agencies from disqualifying convicted felons whose civil rights had been restored, from licensure unless the felony directly related to the specific business for which the license was sought. See Section 112.011(1)(b), Florida-Statutes. Section 112.011, Florida Statutes, enunciates a general state policy which, when read in conjunction with licensing laws in effect as of 1973, impliedly modified such laws to the extent of any conflict with the comprehensive revision of the subject matter, set forth at Section 112.011(1), Florida Statutes. See, McDermott v. Department of Insurance, DOAH Case No. 83-1479, entered September 8, 1983; 23.13, Sutherland, Statutory Con- struction and A60 073-355.

    
    

22. The substantive language of Section 626.611(14), Florida Statutes, has not been amended since 1971. Therefore, Section 112.011(1)(b), Florida Statutes, when read in conjunc- tion with Section 626.611(14), Florida Statutes, prohibits revocation or denial of licensure to a felon whose civil rights have been restored unless the felony directly relates to the business for which the license is sought.

    
    

23. A conviction of robbery could, in many instances, "directly relate" to the practice of insurance or any business in which fiduciary duties and relationships are involved. However, the Petitioner's conviction for robbery did not occur when he was employed in the insurance industry and did not involve an insurance transaction in any manner. The conviction occurred over ten years ago when the Petitioner was 17 years of age. Since his release from prison, the Petitioner has been steadily employed, has married and has continued his education. He was granted early termination from parole due to his efforts to

rehabilitate himself, his civil rights have been restored, 2/ and he enjoys a good reputation in the community and among his peers. Considering these factors, the Petitioner's robbery conviction does not directly relate to the insurance business as required by Section 112.011(1)(b), Florida Statutes. See Aquino v. Department of Professional Regulation, Florida Real Estate Commission,

430 So.2d 598 (Fla. 4th DCA 1983) in which the court held that an applicant's qualifications must be judged in light of an applicant's rehabilitation, following the applicant's conviction of, or entry of a plea to, a felony offense.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

1. That the Administrative Complaint in Case No. 83-1435 dated July 13, 1983, be dismissed.

   
   

2. Mikal Talib Hamin be allowed to sit for examination as a general lines agent.

DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 29th this day of September, 1983.

ENDNOTES

1/ For purposes of clarity, throughout this Recommended Order Mikal Talib Hamin will be referred to as "Petitioner" and the Department of Insurance will be referred to as "Respondent" in Case Nos. 83-1435 and 83-2388.

2/ See Sections 940.05(2)-(3), Florida Statutes.

COPIES FURNISHED:

Clark R. Jennings, Esquire Legal Division

Department of Insurance 413-B Larson Building Tallahassee, Florida 32301

Thomas F. Woods, Esquire WOODS JOHNSTON & CARLSON

Suite 112

130 East Lafayette Street Tallahassee, Florida 32301

Don Dowdell, Esquire General Counsel Department of Insurance The Capitol

Tallahassee, Florida 32301

Bill Gunter, Insurance Commissioner and Treasurer

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-001435

Orders for Case No: 83-001435