STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS CLAYTON BROWN, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4081

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on May 18, 1987, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Terence T. O'Malley, Esquire

O'Malley and Sternberg, P.A.

303 Southwest Sixth Street Penthouse East

Fort Lauderdale, Florida 33315

For Respondent: Richard E. Turner, Esquire

Department of Insurance and Treasurer 413-B Larson Building

Tallahassee, Florida 32399-0300 PRELIMINARY STATEMENT

At issue in this proceeding is whether the application of Petitioner for examination as a general lines agent should be approved.

At hearing, Petitioner testified on his own behalf, and called Elizabeth A. Dean, Hamilton C. Forman, Joseph F. Grassie, Ronald E. Schultz, and Sister Theresa M. Roberts as witnesses. Petitioner's exhibits 1-3 were received into evidence. Respondent called no witnesses; however, its exhibits 1-10 were received into evidence.

The transcript of hearing was filed May 28, 1987, and the parties were granted leave until June 8, 1987, to file proposed findings of fact and conclusions of law. Respondent filed proposed findings of fact in a timely manner, and they have been addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a

   general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision.

   
   

2. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges.

   
   

3. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/

   
   

4. On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established.

   
   

5. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded:

   
   

   12(a) Have you ever been charged with a felony? No

   
   

6. Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive.

   
   

7. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. The ultimate burden of persuasion rested on Brown to establish that his application for examination as a general lines agent should be approved. Rule 28-6.08(3), Florida Administrative Code, and Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA i98l). Brown has failed to sustain his burden of proof.

10. Pertinent to this case, Section 626.611, Florida Statutes, provides:

    
    

    Grounds for compulsory refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representa- tive's, supervising or managing general agent's, or claims investi- gator's permit. -- The department shall deny ... the license of any agent ... if it finds that as to the applicant ... any one or more of the following applicable grounds exist:

    * * *

    (2) Material misstatement, mis- representation, or fraud in obtain- ing the license or permit or in attempting to obtain the license or permit.

    * * *

    (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.

    
    

11. The proof establishes that Brown made a material misrepresentation on his application by failing to disclose that he had been charged with the felonies of burglary and aggravated assault. The proof further established that Brown had pled guilty to such felonies, which are crimes involving moral turpitude. Consequently, pursuant to the provisions of Sections 626.611(2) and (14), Florida Statutes, Brown is ineligible for licensure as a general lines agent.

RECOMMENDATION

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

That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED.

DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.

ENDNOTE

1/ Brown was placed on 10 years probation for the burglary charge, and 5 years probation for the charges of aggravated assault. The terms of probation were to run concurrently.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4081

Respondent's proposed findings of fact are addressed as follows: 1-3. Not relevant, or not necessary to result reached.

1. Addressed in paragraph 2.

2. Addressed in paragraphs 2 and 3. 6-9. Addressed in paragraph 4.

1. Addressed in paragraph 5.

2. Addressed in paragraph 1.

COPIES FURNISHED:

Terence T. O'Malley, Esquire O'Malley and Sternberg, P.A.

303 S.W. Sixth Street, Penthouse East

Fort Lauderdale, Florida 33315

Richard E. Turner, Esquire Department of Insurance

and Treasurer

4l3-B Larson Building Tallahassee, Florida 32399-0300

Honorable William Gunter State Treasurer and Insurance

Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Don Dowdell, General Counsel Department of Insurance

and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Docket for Case No: 86-004081

Orders for Case No: 86-004081