STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1961

)

WILLIAM THOMAS BRADY, )

)

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 22, 1987 in Miami, Florida.

APPEARANCES

For Petitioner: Lealand L. McCharen, Esquire

413-B Larson Building Tallahassee, Florida 32399-0300

For Respondent: Jan M. Levy, Esquire

6041 Southwest 87th Avenue, Suite 200

Miami, Florida 33173 BACKGROUND

In an administrative complaint filed on April 8, 1987 petitioner, Department of Insurance, has charged that respondent, William Thomas Brady, a licensed insurance agent, has violated various provisions within Chapter 626, Florida Statutes (1985). The complaint generally alleges that on or about April 8, 1986 respondent pled guilty to a charge of solicitation of a motor vehicle tort claim, a felony, in violation of Subsection 817.234(8), Florida Statutes (1985). By doing so, it is alleged Brady (a) demonstrated a lack of fitness or trustworthiness to engage in the insurance business [s. 626.611(7), F.S.], (b) committed a fraudulent or dishonest practice in the conduct of business under his license [s. 626.611(9), F.S.], (c) had pled guilty to a felony in this state which involved moral turpitude [s. 626.621(14), F.S.], and (d) had pled guilty to a felony in this state [s. 621.621(8); F.S.].

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986). The matter was referred by petitioner to the Division of Administrative Hearings on May 5, 1987, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated May 29, 1987, the final hearing was scheduled on July 22, 1987 in West Palm Beach, Florida. Venue was later changed to Miami by supplemental notice.

At final hearing petitioner was given leave to amend its complaint to allege that respondent entered a plea of nolo contendere to the felony charge (rather than a guilty plea). It also offered petitioner's exhibit 1 which was received in evidence. Respondent offered respondent's exhibit 1 which was received in evidence. In addition, at the request of the parties, several documents and a recent court decision were officially recognized.

Respondent's motion for continuance at the outset of the hearing was denied.

The transcript of hearing was filed on August 7, 1987. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on August

19 and 24, 1987, respectively. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

At issue is whether respondent's license as an insurance adjuster should be disciplined for the alleged violations set forth in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, William Thomas Brady, held various insurance licenses issued by petitioner, Department of Insurance. Under these licenses, Brady was qualified as an independent adjuster - fire and allied lines including marine, casualty and motor vehicle physical damage. Brady presently resides at 17105 Southwest 87th Court, Miami, Florida.

   
   

2. The parties have agreed that on or about June 3, 1985 the following relevant events occurred:

   
   

   On Monday afternoon, June 3, 1985, the defendant arrived at the scene of an auto- mobile accident that had occurred at Sunset Drive and 61st Avenue in South Miami. The defendant walked up to Susan Alters, the driver of one of the cars involved in the accident, and said "Oh, it looks like you're in trouble." She said no, that everything was under control. The defendant handed her a business card containing an address and telephone number. He said "I'm associated with a law firm which specializes in accident cases that can be of help to you. Call me as soon as you can if you feel you need my services." The defendant then took some photographs of the scene and left.

   
   

3. As a result of the above events, an information was filed on October 24, 1985 by the state attorney for Dade County charging Brady with "knowingly solicit(ing) business upon a public street or highway for the purpose of making a motor vehicle tort claims (sic) or claims for personal injury protec- tion benefits required by Section 627.736, Florida Statutes, in violation of 817.234(8), Florida Statutes." The offense is a third degree felony.

4. After respondent's motion to dismiss the charge was denied by the trial court, on April 8, 1986 respondent entered a plea of nolo contendere and concurrently reserved the right to appeal the court's denial of his motion to dismiss. The court withheld adjudication of guilt and placed respondent on eighteen months of supervised probation, or until October, 1987. Respondent thereafter appealed the denial of his motion to dismiss to the Third District Court of Appeal. In a decision rendered on June 9, 1987, the court affirmed the lower court ruling. Brady v. State of Florida, 12 FLW 1420 (Fla. 3rd DCA June 9, 1987). Respondent then filed a motion for rehearing which is still pending before the court.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has juris- diction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

   
   

6. In its administrative complaint, as amended, petitioner has charged that by entering a plea of nolo contendere to the felony, Brady is guilty of (a) having demonstrated a lack of fitness or trustworthiness to engage in the insurance business, (b) having committed a fraudulent or dishonest practice in the conduct of business under his license, (c) having pled nolo contendere to a crime involving moral turpitude, and (d) having pled nolo contendere to a felony in the State of Florida. These acts, if proven, constitute violations of Subsections 626.611(7), (9) and (14) and 626.621(8), Florida Statutes (1985), respectively. Because revocation of respondent's license is a potential consequence of this proceeding, petitioner bears the burden of proving its allegations by clear and convincing evidence. Ferris v. Turlington, 12 FLW 393 (Fla. July 16, 1987).

   
   

7. Taking the last charge first, it is undisputed that Brady has pled nolo contendere to a third degree felony in violation of Subsection 626.621(8), Florida Statutes (1985). This has been proven by the introduction into evidence of a certified copy of the plea made before the Dade County Circuit Court on April 8, 1986. The remaining charges are not so clear-cut.

   
   

8. As agreed to by the parties; the record establishes that Brady approached the driver of a car involved in an accident and said to her: "Oh, it looks like you're in trouble." After handing her his business card, he added: "I'm associated with a law firm which specializes in accident cases that can be of help to you. Call me as soon as you can if you feel you need my services." The statute which proscribes this conduct and to which Brady pled nolo contendere reads in relevant part as follows:

   
   

   817.234 False and fraudulent insurance claims.--

   * * *

   (8) It is unlawful for any person . . . to solicit any business . . . upon any public street or highway . . . for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736 .

   
   

   It is petitioner's position that Brady's conduct on June 3, 1985 and his subsequent plea of nolo contendere equate to a lack of fitness or trustworthiness and a fraudulent or dishonest practice, and that the felony

   involves moral turpitude. Respondent obviously disagrees, and contends his conduct does not establish any such violation. He also contends the statute is unconstitutional, a matter not within this Hearing Officer's authority to adjudicate.

   
   

9. Assuming that Brady did indeed solicit business for the purpose of making a motor vehicle tort claim, the first issue is whether this constitutes a felony involving moral turpitude. The term moral turpitude:

   
   

   involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It has been defined as anything done contrary to justice, honesty, principle, or good morals. . .

   
   

   Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3rd DCA 1981) [quoting from State ex rel Tullidge v. Hollingsworth, 108 Fla. 607, 147 So. 660 (1933)]. Using this standard, it cannot be said that making an offer to provide services to a motorist just involved in an accident rises to the level of being a crime involving moral turpitude. Put another way, Brady's conduct is not so inherently depraved or baseless as to be "contrary to justice, honesty, principle or good morals." Indeed, the statute which Brady violated (s. 817.234) is designed primarily to prohibit the making of false and fraudulent claims, something for which respondent was not charged. Rather, respondent was charged with soliciting business, an act which also happened to be covered by the same law. Therefore, it is concluded the allegation that Subsection 626.611(14) was violated must fail.

   
   

10. Next, petitioner contends that Brady's conduct equates to a lack of "fitness or trustworthiness to engage in the business of insurance." To conclude that this violation occurred, it is necessary to find that the solicitation of business by Brady renders him unfit and untrustworthy to use his license. But, as noted above, Brady did not engage in the making of a fraudulent or false insurance claim, but only with soliciting business. Moreover, the solicitation appears to be benign, 1/ and has not been shown to involve fraud, deception, misrepresentation and the like. Therefore, the conduct does not equate to a lack of fitness or trustworthiness and this portion of the complaint must fail.

    
    

11. Finally, petitioner has asserted that the objectionable conduct constitutes a fraudulent or dishonest practice in the conduct of business under Brady's license. However, there was nothing "fraudulent" in what Brady did, nor did his actions constitute a "dishonest practice." Indeed, the words spoken by Brady were straightforward, and simply suggested to a motorist that he was available to render services if the motorist found them necessary. Further, there is no contention here that Brady solicited business for the purpose of filing fraudulent tort claims. This being so, it is concluded the final charge must also fail.

    
    

12. Since Brady has committed a violation under Section 626.621, Florida Statutes (1985), suspension or revocation of his license is not mandatory. Given the circumstances herein, an appropriate penalty is for Brady's license and qualifications to be placed on probation for two years from date of final order.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violation of Subsection

626.621(8), Florida Statutes (1985), and that his license and qualifications be placed on probation for two years. All other charges should be dismissed.

DONE AND ORDERED this 27th day of August, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 27th day of August, 1987.

ENDNOTE

1/ "Benign solicitation" has been defined in an attorney disbarment setting as "solicitation that is truthful and presented in a non-coercive, non-deceitful and dignified manner to a potential client who is physically and emotionally capable of making a rational decision either to accept or reject the representation with respect to a legal claim or matter that is not frivolous." Ohralik v. Ohio State Bar Association, 98 S.Ct. 1893 at 1927, 436 U.S. 447 at

473 (197).

APPENDIX

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 4.

3. Covered in finding of fact 2.

Respondent:

1. Covered in finding of fact 1.

2. Covered in findings of fact 2 and 3.

3. Rejected as being a conclusion of law.

4. Covered in finding of fact 2.

5. Covered in finding of fact 4.

6. Rejected as being unnecessary.

7. Rejected as being unnecessary since the governing statute makes the described conduct unlawful.

8. Covered in finding of fact 4.

9. Rejected as being argument of counsel.

COPIES FURNISHED:

Lealand L. McCharen, Esquire 413-B Larson Building Tallahassee, Florida 32399-0300

Jan M. Levy, Esquire

6041 Southwest 87th Avenue Suite 200

Miami, Florida 33173

Honorable Bill Gunter State Treasurer and

Insurance Commission The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Donald A. Dowdell, Esquire The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Docket for Case No: 87-001961

Orders for Case No: 87-001961