STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE ) AND TREASURER, DIVISION OF ) INSURANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 85-3225

) JOSEPH DENNIS TURNER, SR., ) a/k/a JOSEPH D. TURNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this case on November 19, 1985, in Tampa, Florida. The following appearances were entered:

For Petitioner: Leland L. McCharen, Esq.

Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

For Respondent: Joseph Dennis Turner, Sr. (Pro se)

2219 West Skagway Avenue Tampa, Florida 33604-1039

The issue for determination at the final hearing was whether the Respondent's qualifications and eligibility for licensure as an insurance agent should be revoked.

PROCEDURAL BACKGROUND

By Administrative Complaint dated July 30, 1985, Respondent was charged with numerous violations of Chapter 626, Florida Statutes (1983) arising out of a conviction for Grand Theft. The Respondent disputed the allegations in the Administrative Complaint and requested a formal hearing pursuant to Chapter 120.57(1), Florida Statutes (1983). This cause came on for

final hearing on November 19, 1985. Petitioner's exhibits 1-4 were offered and duly admitted into the record. The Respondent, Joseph Dennis Turner, Sr. testified in his own behalf.

The parties have submitted posthearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact in the appendix to this Recommended Order.

FINDINGS OF FACT_

Based upon the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:

1. The Respondent, Joseph Dennis Turner, submitted an "Application for Filing for an Examination" as ordinary life agent dated July 11, 1984 to the Department of Insurance, Insurance Commissioner and Treasurer.

   
   

2. Question number 13 of the "Application for Filing for Examination" as ordinary life agent stated as follows:

   
   

   "Have you ever been charged with or convicted of a felony?"

   
   

   The Respondent answered question 13 "no".

   
   

3. On February 1, 1984, the Respondent was charged by a criminal information in Case No. 84-701-A with Grand Theft of the First Degree in violation of Section 812.014(2)(a), Florida Statutes (1983).

   
   

4. The Respondent was convicted of the felony offense of Grand Theft on January 11, 1985. The case was heard by jury trial in the Circuit Court for the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida.

   
   

5. The Respondent has appealed the conviction to the Second District Court of Appeal, State of Florida.

   
   

6. The Respondent held the erroneous belief that he had the constitutional right not to disclose the fact that he had been charged with a crime.

   
   

   CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of this proceeding: Section 120.57(1), Florida Statutes (1983). Pursuant to Part 1 of Chapter 626, Florida Statutes (1983), known as the "Licensing Procedures Law", the Department of Insurance is charged with the responsibility of licensure for insurance agents, solicitors, service representatives, adjusters, and insurance agencies. Section 626.611, Florida Statutes (1983), provides in part that:

   
   

   "The Department shall deny, suspend, revoke, or refuse to renew 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 permittee 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 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 jurisdiction of such cases."

   
   

8. The Petitioner has charged that the Respondent violated all of the above provisions of Section 626.611, Florida Statutes.

   
   

9. The Petitioner has established by clear and convincing evidence that the Respondent was found guilty of a felony in this state which involves moral turpitude. In Tullidge vs.

   Hollingsworth, 146 So. 2d 660 (Fla. 1333), the Court stated that

   
   

   moral turpitude involves the idea of inherent baseness or depravity in the

   private social relations or duties owed by man to man or man to society . . . It has also been defined as anything done contrary to justice, honesty, principle or good morals. . .

   
   

10. While it is unclear whether the facts underlying Petitioner's guilty plea to grand theft involve "inherent baseness or depravity", it is clear that grand theft is contrary to justice, honesty and principle. In Soetarto vs. Immigration and Naturalization Services, 516 F.2d 778, 780, (7th Cir. Ct. App. 1975), the Court stated that:

    
    

    "[t]heft has always been held to involve moral turpitude, regardless of the sentence imposed or the amount stolen."

    
    

11. The pendency of an appeal does not affect the legal significance of a judgment of guilt as contemplated by Section 626.611(14), Florida Statutes. The legal rights of the accused to obtain licensure may change if his appeal is successful, however, there is no legal requirement that the Department of Insurance await the outcome of the many direct or collateral appeals which may be available to the Respondent.

    
    

12. The Petitioner has further established that the Respondent has demonstrated a lack of fitness and trustworthiness to engage in the business of insurance. Grand Theft involves the wrongful taking of property. The holder of an insurance agent's license stands in a fidicuary relationship to both client and insurance company. The Respondent, by his own actions, has demonstrated a prior inability to respect the property rights of others. Therefore, especially in light of the recency of the conviction, the Petitioner has shown a demonstrated lack of fitness and trustworthiness to engage in the business of insurance on the part of Respondent.

    
    

13. The Petitioner has established by clear and convincing evidence a misstatement and misrepresentation by Respondent in the process of obtaining or attempting to obtain the license herein. On July 11, 1984 the Respondent indicated that he had not been charged with or convicted of a crime, when he in fact, knew that he had been charged by criminal information with Grand Theft. Although the Respondent was under the assumption that he had no obligation to reveal such information to the Department of Insurance where he had not yet been taken to trial or found

guilty of any crime, the Respondent went beyond mere silence and affirmatively stated that he had not been charged with a crime.

RECOMMENDATIONS

Based on the foregoing Findings of Fact and Conclusions of Law it is:

RECOMMENDED that the Respondent's qualifications and eligibility for licensure as an insurance agent be REVOKED.

DONE and ORDERED this 20th day of December, 1985 in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON 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 20th day of December, 1985.

COPIES FURNISHED:

Leland L. McCharen, Esq.

Department of Insurance and Treasurer

1. Larson Building Tallahassee, Florida 32301

   
   

   Joseph Dennis Turner, Sr. 2219 West Skagway Avenue Tampa, Florida 33604-1039

   
   

   Hon. William Gunter

   State Treasurer and Insurance Commissioner

   The Capitol, Plaza Level Tallahassee, Florida 32301

   
   

   Don Dowdell, Esq. General Counsel State Treasurer and

   Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301

   
   

   DEPARTMENT OF INSURANCE AND TREASURER, DIVISION OF INSURANCE,

   
   

   vs .

   
   

   JOSEPH DENNIS TURNER, SR., a/k/a JOSEPH D. TURNER

   
   

   CASE NO. 85-3225 APPENDIX

   Pursuant to Section 120.59(2), Florida Statutes (1983), the following are my specific rulings on the proposed findings of fact submitted by each of the parties to this case.

   
   

   Petitioner's Findings of Fact

   
   

   Paragraph Ruling

   1. Accepted; see paragraph 2, R.O.

      
      

   2. Rejected as argument.

      
      

   3. Partially accepted; see paragraph 6, R.O.

Respondent's Findings of Fact

Paragraph Ruling

1. Accepted; see paragraph 1, R.O.

   
   

2. Accepted; see paragraph 3, R.O.

   
   

3. Accepted; see paragraph 4, R.O.

   
   

4. Accepted; see paragraph 5, R.O.

   
   

5. Rejected as argument and conclusions of law.

   
   

6. Accepted; see paragraph 1, R.O.

   
   

7. Accepted; see paragraph 2, R.O. i`_

E=_

Docket for Case No: 85-003225

Orders for Case No: 85-003225