STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1419

)

LARRY NATHAN BOOKER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Pensacola, Florida, on June 30, 1987, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: David G. Poucher, Esquire

Office of Legal Services Department of Insurance 413-B Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Larry Nathan Booker, pro se

Post Office Box 915 Jay, Florida 32565

Respondent appeared at the hearing unaccompanied by legal counsel or other representative, and after being advised of his rights and the procedures to be followed in the administrative hearing, acknowledged that he understood the same and elected to represent himself.

Petitioner seeks to take disciplinary action against the Respondent, who is licensed as an Ordinary Life including Health agent, pursuant to Chapter 626, Florida Statutes, for having been found guilty of a felony in the United States District Court for the Southern District of Alabama in 1985 for one count of fraud against the United Bank of Atmore, in the knowing and willful mis- application of $2,333.33.

At the hearing, Petitioner presented no witnesses and submitted one exhibit in evidence. Respondent testified in his own behalf, but did not present the testimony of other witnesses or any documentary evidence.

Petitioner has filed Proposed Findings of Fact and Conclusions of Law which are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent Larry Nathan Booker is presently employed as an office manager for an insurance agent in Jay, Florida. At all times pertinent to this proceeding, he has been licensed by Petitioner as an Ordinary Life including Health agent (Testimony of Respondent, Stipulation).

   
   

2. On June 21, 1985, in Case No. 85-00077 in The United States District Court for the Southern District of Alabama, Respondent pleaded guilty and was found guilty to a violation of 18 United States Code, Section 656, as charged in Count One of the information. Count One of the information contained the following allegations:

   
   

   1. At all times material to this information Larry N. Booker, served in the capacity of manager of the Flomaton Branch, United Bank of Atmore, Flomaton, Alabama.

   2. At all times material to this information, the deposits of the United Bank of Atmore were insured by the Federal Deposit Insurance Corporation - charter number 0058-2 dated December 23, 1969.

   3. At all times material to this information, Larry N. Booker had open a personal checking account number 02111607 with the United Bank of Atmore.

   4. At all times material to this information, Ronald E. Watkins was doing Business as Watkins Cars-Trucks, 726 Highway 90-West, Milton, Florida and Ronald E. Watkins had open a checking account with the United Bank of Atmore.

      
      

      On or about the 17th day of December, 1982, Larry N. Booker, the then manager of the Flomaton Branch,

      United Bank of Atmore, with the intent to injure and defraud the United Bank of Atmore did knowingly and willfully misapply $2,333.33 of the funds of the United Bank of Atmore. Larry N. Booker did knowingly and wilfully misapply the

      $2,333.33 by crediting his personal account with a debit from the account of Watkins Cars-Trucks, at the time of debit the Watkins Cars-Trucks account was in an overdrawn status and Larry N. Booker knew that the Watkins Cars-Trucks account was in an overdrawn status; all in violation of 18 United States Code, Section 656.

      
      

      Respondent was placed on probation for a period of five years, and required to make restitution in the amount of $2,333.33, and to pay a personal note that he had with the United Bank of Atmore. (Petitioner's Composite Exhibit 1)

3. In explanation of his conviction, Respondent testified that in order to assist Ronald E. Watkins in keeping his rental business property from being sold by his landlord, Respondent purchased the property in his name with four investors to hold the mortgage to the property. The arrangement was for Watkins to pay Respondent rent on the property and Respondent would subsequently make payment of the rental amount to the investors under a lease-purchase agreement at a monthly payment of $2,333.33. The payment was made on an automatic debit from Watkins' bank account to Respondent's bank account. Respondent further testified that the overdraft occurred due to the fact that Watkins came into the bank between 1:30 and 2:00 p.m., paid off some of his floor plan loans to tellers, and then went directly to Respondent's assistant to work up new additional floor plan loans to offset the checks that he had just given. However, by the time the loans were prepared and signed, it was after 2:00 p.m., which was the cut-off time for bookkeeping transactions. Therefore, the overdraft in question occurred even though it was automatically covered the next day.

   
   

4. Respondent testified that such overdrafts are a common occurrence in the banking system and that, at no time did he have an intent to defraud the bank, nor did it lose any money as a result of the overdraft. (Testimony of Respondent)

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner seeks to discipline Respondent's license based on his federal conviction pursuant to the following provisions of Chapter 626, Florida Statutes:

   
   

   626.611 Grounds for compulsory 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--The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, 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:

   * * *

   (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.

   
   

   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.--The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it may 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 under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s.

   626.611:

   * * *

   (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.

   
   

6. Title 18, Section 656, United States Code, provides for a fine of not more than $5,000.00 or imprisonment for not more than five years or both for willful mis-application of bank funds in an amount over $100.00. A federal offense punishable b imprisonment for a term exceeding one year is a felony (18 USC 1)

   
   

7. Section 658.77(2), Florida Statutes, makes it unlawful for any officer, director, agent, or employee of a state bank to misapply any money of the bank with intent to deceive or defraud such bank, and constitutes a felony under Florida law. The term "felony" in the above-mentioned disciplinary statutes authorizing imposition of discipline against a licensed insurance agent upon conviction of a felony in the courts of this state or any other state, includes a crime committed elsewhere which would be a felony if committed in Florida. Rotstein v. Department of Professional & Occupational Regulation, 397 So.2d 305 (1st DCA, 1980); Shields v. Smith, 404 So.2d 1106 (1st DCA, 1981). Thus, Respondent having been convicted of a federal felony in Alabama which would also be a felony if committed in Florida, is subject to discipline under Section 626.611(14), Florida Statutes, if the offense of which he was convicted "involves moral turpitude." Notwithstanding Respondent's claims that he had no intent to defraud the United Bank of Atmore, it is clear that the offense of which he was convicted involved an intent to defraud and thus clearly involved moral turpitude. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933). The Florida offense under Section 658.77(2), F.S., also involves moral turpitude.

   It is therefore determined that Respondent is subject to discipline under Section 626.611(14), F.S., which mandates suspension or revocation of his license.

   
   

8. However, in view of the nature of the offense and the circumstances surrounding its commission, it is considered that Petitioner has failed to establish by clear and convincing evidence that Respondent demonstrated a lack of fitness or trustworthiness to engage in the business of insurance under Section 626.611(7), F.S. Although Respondent admitted during the course of his testimony that the overdrafts had occurred on three separate occasions, the Administrative Complaint was based solely on the felony conviction which involved one instance of willful mis-application of funds.

   
   

9. It is considered under the circumstances of this case that an appropriate penalty for the established ground for discipline is suspension of Respondent's license for a period of one year.

It is, therefore

RECOMMENDED that Petitioner issue a Final Order suspending Respondent's license as an Ordinary Life including Health Agent for a period of one year.

DONE and ENTERED this 4th day of August, 1987 in Tallahassee, Florida.

THOMAS C. OLDHAM

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 4th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1419

The following are my rulings on Petitioner's Proposed Findings of Fact: Paragraphs 1 through 11 accepted and substantially incorporated into the

Recommended Order.

COPIES FURNISHED:

David G. Poucher, Esquire Office of Legal Services Department of Insurance 4l3-B Larson Building

Tallahassee, Florida 32399-0300

Larry N. Booker Post Office Box 915 Jay, Florida 32565

Honorable William Gunter State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Docket for Case No: 87-001419

Orders for Case No: 87-001419