STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICTOR RUDOLPH COBHAM, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2077

)

DEPARTMENT OF INSURANCE )

AND TREASURER )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final formal hearing in Miami, Florida, on July 23, 1987, before Ella Jane P. Davis, duly assigned Hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Angelo A. Ali, Esquire

400 Roberts Building

26 West Flagler Street Miami, Florida 33130

For Respondent: Lealand L. McCharen, Esquire

Department of Insurance and Treasurer 413-B Larson Building

Tallahassee, Florida 32399-0300 ISSUE

Whether or not Petitioner may be licensed as an insurance agent.

BACKGROUND AND PROCEDURE

Petitioner testified on his own behalf but offered no exhibits. Respondent presented no oral testimony but had two exhibits admitted. One joint exhibit was admitted. Respondent filed the transcript of proceedings on August 5, 1987, and timely filed its proposed findings of fact, 1-8, all of which have been accepted but modified and amplified to more closely conform to the evidence contained in the record as a whole. Petitioner has to date filed no post- hearing proposals.

FINDINGS OF FACT

1. Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application").

2. Question 8 of that application and Petitioner's answers thereto read as follows:

   
   

   Have you ever been charged with a felony?

   Yes

   If YES, give date(s): Dec. 16, 1983

   1. What was the crime? Possession of cocaine & cannabis

   2. Where and when were you charged?

      Dade County, Dec. 16, 1983

   3. Did you plead guilty or nolo contendere? Nolo Contendere on Appeal

   4. Were you convicted? Yes -

      Conviction reversed by 3rd District Court of Appeal

   5. Was adjudication withheld? See attachments to application

   6. Please provide a brief description of the nature of the offense charged.

      See attachments to application

      If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required.

      
      

3. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions.

   
   

4. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld.

   
   

5. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld.

   
   

6. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear.

   
   

7. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra.

   
   

8. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He

   further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well.

   Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor.

   
   

9. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.

11. The controlling statutes are set out as follows: 626.621 Grounds for discretionary

    refusals 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 own 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.

    and,

    626.611 Grounds far 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:

    * * *

    (2) Material misstatement, mis- representation, 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.

    
    

12. Although Section 626.621(8) provides that a plea of guilty to any felony, whether or not a judgment of conviction has been entered is discretionary grounds for the denial of an application, the other statutes mandate denial of the application under the facts as found. Since a plea of guilty to any felony constitutes discretionary grounds for denial and a plea of guilty to a felony involving moral turpitude constitutes mandatory grounds for denials. Petitioner's deliberate omission from his application of three charges, at least two of which involved pleas of guilty to felonies, is clearly material. Such deliberate omission/concealment is a material misstatement, misrepresentation, or fraud and further demonstrates a lack of fitness and trustworthiness to engage in the business of insurance. Having so determined, it is not necessary to explore which, if any, of Petitioner's several previous felony charges involved moral turpitude nor is it necessary to set forth the intricacies of whether a plea of guilty to a felony charge constitutes an admission in the absence of ultimate conviction or adjudication.

13. It is unfortunate and ironic that had Petitioner freely admitted the nature and extent of his many legal problems, rather than unsuccessfully attempting to conceal them, he might have been able to demonstrate his reform and current good moral character based upon proof of successful completion of all terms of his probations under the withheld adjudications, upon the staleness of the nine-year-old charges, and upon the elapse of time. However, instead, he made a material omission on his application and offered no results of his probation and no significant or compelling current character evidence.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent.

DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 10th day of September, 1987.

COPIES FURNISHED:

William Gunter Commissioner Department of Insurance

and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Angelo A. Ali, Esquire

400 Roberts Building

26 West Flagler Street Miami, Florida 33130

Lealand L. McCharen, Esquire Department of Insurance

and Treasurer

1. Larson Building Tallahassee, Florida 32399-0300

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

   
   

   IN THE MATTER OF

   
   

   VICTOR RUDOLPH COBHAM CASE NO. 87-L-410LLM DOAH CASE NO. 87-2077

   Denial of Application for Examination

   
   

   Life and Health Insurance Agent

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the Insurance Commissioner of the State of Florida for consideration and final agency action. On February 12, 1987, Petitioner, VICTOR RUDOLPH COBHAM, filed an application with the Department of Insurance for examination as a Life and Health insurance agent. On March 31, 1987, the Department of Insurance denied the application on the grounds that the Petitioner had been charged with and entered a guilty plea to the following felonies: Possession of Controlled Substance, Unlawful Possession of Cannabis, Unlawful Possession or Sale of Controlled Substance, and Failure to Redeliver Hired Vehicle.

   
   

   The Petitioner filed a request for a formal hearing pursuant to Section 120.57(1), Florida Statutes, and on July 23, 1987, a formal hearing was held in Miami, Florida before the Honorable Ella Jane P. Davis, Hearing Officer for the Division of Administrative Hearings. After consideration of the evidence and argument presented at the hearing, and after further consideration of Proposed Finding of Facts and Conclusions of Law submitted by the Respondent, Petitioner having failed to submit a post-hearing Proposal, the Hearing Officer, on September 10, 1987, issued a Recommended Order (attached as Exhibit "A") to the Insurance Commissioner in which it was recommended that the application of Petitioner be denied. Neither party filed exceptions to the Recommended Order.

   
   

   Upon the consideration of the foregoing and the record, and being otherwise fully advised in the premises, it is ORDERED:

   
   

   1. The Hearing Officer's Findings of Fact are adopted in to as this agency's Findings of Fact.

      
      

   2. The Hearing Officer's Conclusions of Law are adopted in toto as this agency's Conclusions of Law.

      
      

   3. The Hearing Officer's Recommendation that the application of the Petitioner, VICTOR RUDOLPH COBHAM, be denied, is approved and accepted as being appropriate to the disposition of this case.

Accordingly, the application of the Petitioner, VICTOR RUDOLPH COBHAM, for examination as a Life and Health insurance agent is DENIED.

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order Pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla.R.App.P. Review proceedings must be instituted by filing a petition or Notice of Appeal with the General Counsel, acting as the agency clerk, at 413-B Larson Building, Tallahassee, Florida 32399-0300, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of the Order.

DONE and ORDERED this 15th day of October, 1987 at Tallahassee, Florida.

BILL GUNTER

Insurance Commissioner and Treasurer

ANN WAINWRIGHT

Assistant Insurance Commissioner and Treasurer

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by Certified Mail to: ANGELO A. ALI, Esquire, 400 Roberts Building, 26 West Flagler Street, Miami, Florida 33130; VICTOR R. COBHAM, 482

N.W. 165 St. Road, #A601, Miami, Florida 33169; HONORABLE ELLA JANE P. DAVIS, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32399-1550; and hand-delivered to: LEALAND L. McCHAREN, Esquire, Department of Insurance, Office of Legal Services, 413-B Larson Building, Tallahassee, Florida 32399-0300 and RICHARD E. TURNER, Esquire, Department of Insurance, Office of Legal Services, 413-B Larson building, Tallahassee, Florida 32399-0300 this 15th day of October, 1987.

RICHARD E. TURNER

Attorney

Office of Legal Services 413-B Larson Building

Tallahassee, Florida 32399-0300

(904) 488-4540

Docket for Case No: 87-002077

Orders for Case No: 87-002077