STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1809

)

JACK MICHAEL SCHWARTZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 29, 1986, in Miami, Florida.

APPEARANCES

For Petitioner: Wilbur W. Anderson, Esquire

413-B Larson Building Tallahassee, Florida 32301

For Respondent: Jack Michael Schwartz, pro se

2027 Northeast 172nd Street North Miami Beach, Florida 33162

BACKGROUND

In a two count administrative complaint filed on April 25, 1986, petitioner, Department of Insurance and Treasurer, has charged that respondent, Jack Michael Schwartz, licensed by petitioner as a insurance agent, had violated various provisions within Chapter 626, Florida Statutes (1985). Generally, petitioner has alleged that on November 30, 1981 respondent filed an application for licensure as an ordinary life including health agent with respondent, that in response to question 15 on the application respondent indicated he had never been charged with or convicted of a felony, and that respondent had in fact been convicted of a felony in November, 1977 in Broward County, Florida (Count I).

It is also charged that on June 18, 1985 respondent made application with petitioner for licensure as a general lines agent, that on question 11 he answered he had never been charged with or convicted of a felony, and that Schwartz had in fact been convicted of a felony in Broward County, Florida in 1977 (Count II).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was referred to the Division of Administrative Hearings by petitioner on May 21, 1986, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated June 16, 1986, the final hearing was scheduled for July 29, 1986 in Miami, Florida.

At final hearing, petitioner offered petitioner's exhibits 1-3. All were received in evidence. Respondent testified on his own behalf.

The transcript of hearing was filed on August 21, 1986. Proposed findings of fact and conclusions of law were filed by petitioner on September 5, 1986. A ruling on each proposed finding is made in the Appendix attached to this order.

At issue is whether respondent's insurance agent license and eligibility for licensure should be disciplined for the alleged violations set forth in the administrative complaint.

Based on all the evidence, the following facts are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Jack Michael Schwartz, held a life and health agent and ordinary combination life including health agent license issued by petitioner, Department of Insurance and Treasurer. Respondent presently resides at 2027 Northeast 172nd Street, North Miami Beach, Florida.

   
   

2. On November 30, 1981 respondent submitted an application to petitioner for licensure as an ordinary life including disability agent. Question 15 on the application asked the following: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." The application was subsequently approved by petitioner in February, 1982 after respondent successfully completed a written examination.

   
   

3. On June 18, 1985 respondent submitted an application to petitioner for licensure as a general lines agent. Question 11 on the application asked the following question: "Have you ever been charged with or convicted of a felony?" Respondent answered "No."

   
   

4. During the course of a routine background check of Schwartz, petitioner later learned that respondent had pled guilty to grand larceny by fraudulent representation on August 3, 1977 in circuit court in and for Broward County, Florida. The offense is a felony. Schwartz was thereafter placed on probation for five years under the direct supervision of the Department of Offender Rehabilitation. He was released from probation after two and one-half years.

   
   

5. Schwartz acknowledged that he had pled guilty to a felony. However, after his probation was ended, Schwartz interpreted advice from his probation officer to mean he did not have to acknowledge on job or licensure applications that he had been convicted of a felony. He had no further explanation for his answers.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

7. By giving a false answer on the two applications, respondent is charged with violating Subsections 626.611(2), (7), (8), (14) and 626.621(1) and (8), Florida Statutes, (1985). Those subsections make unlawful the following conduct:

   626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, solicitor's, or adjustor's license or service representative's, supervising or managing general agent's, or claims investigator's permit.

   * * *

   (2) Material misstatement, misrepresentation, or fraud in obtaining the license or permit or in attempting to obtain the license or permit.

   * * *

   1. Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

   2. Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or permit.

   * * *

   (14) Having been found guilty of, or having pleaded guilty to 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.

   626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service

   representative's, supervising or managing general agent's, or claims investigator's permit.

   (1) Any cause for which issuance of the license or permit could have been refused had it then existed and been known to the department.

   * * *

   (8) Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

   * * *

   
   

8. The evidence reveals that respondent (a) made a material misstatement or misrepresentation on the two applications, (b) demonstrated a lack of fitness or untrustworthiness by doing so, (c) was found guilty of a felony which involves moral turpitude, (d) committed conduct which would have been grounds for denying his application had the agency known of same, and (e) was found guilty of a felony in this state. Accordingly he has violated Subsections 626.611(2), (7) and (14) and 626.621(1) and (8), Florida Statutes (1985). The allegation that Subsection 626.611(8) was violated must fail.

   
   

9. Given the nature of the violations, revocation of respondent's license and eligibility is warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the license and eligibility for licensure of respondent be

REVOKED.

DONE and ORDERED this 15th day of September, 1986, 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 15th day of September, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1809 PETITIONER:

1. Covered in finding of fact 4.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered in finding of fact 2.

5. Covered in finding of fact 3.

6. Covered in finding of fact 3.

COPIES FURNISHED:

Honorable Bill Gunter Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32301

Wilbur W. Anderson, Esquire 413-B Larson Bldg.

Tallahassee, Florida 32301

Jack Michael Schwartz 2027 N.E. 172nd Street

North Miami Beach, Florida 33162

Docket for Case No: 86-001809

Orders for Case No: 86-001809