STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1148

) EDWARD WILLISON CARROLL, III, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on June 6, 1988, in Tallahassee, Florida.

APPEARANCES

For Petitioner: S. Marc Herskovitz, Esquire

Office of Legal Services 413-B Larson Building

Tallahassee, Florida 32399-0300

For Respondent: Thomas L. Neilson, Esquire

105 West Fifth Avenue Tallahassee, Florida 32302

PRELIMINARY STATEMENT

By administrative complaint dated February 11, 1988, petitioner charged that respondent, a licensed insurance agent, violated the provisions of Chapter 626, Florida Statutes. The gravamen of petitioner's charge is that respondent pled guilty to a felony involving moral turpitude and that he failed to disclose such charge on his applications for licensure.

At hearing, petitioner offered its exhibits 1-6, and they were received into evidence. Respondent testified on his own behalf, and his exhibits 1 and 2 were received into evidence. The record remained open, however, pending a ruling by the Circuit Court of Leon County on petitioner's motion to vacate an order of expungement (Respondent's exhibit 1). By order of July 7, 1988, the court vacated its prior order of expungement, and a copy of such order was received in evidence as petitioner's exhibit 7.

The transcript of hearing was filed August 1, 1988, and the parties were granted leave until August 11, 1988, to file proposed findings of fact.

Petitioner elected to file such proposals, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Edward Willison Carroll, III, is currently eligible for licensure and is licensed in this state as a Credit Life, including Credit Disability Insurance Agent; General Lines - Property, Casualty, Surety and Miscellaneous Lines Agent; General Lines - Motor Vehicle Physical Damage and Mechanical Breakdown Agent; Ordinary Life, including Health Insurance Agent; Health Insurance Agent; and Automobile and Inspection and Warranty Association Salesman.

   
   

2. On March 10, 1980, respondent filed a verified application with petitioner for examination as a General Lines Agent (Property, Casualty, and Miscellaneous Lines) . Question number 13 of the application asked the following:

   
   

   Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet.

   
   

   Date Name of Court

   
   

   Address of Court Nature of Charge and

   Outcome Respondent answered no to this question.

3. On May 28, 1982, respondent filed a verified application with petitioner for examination as an Ordinary Life including Disability Agent. Question number 15 of the application asked the following:

   
   

   Have you ever been charged with or convicted of a felony? If so, complete the following and submit a full and detailed report on a separate sheet.

   
   

   Date Name of Court

   
   

   Address of Court Nature of Charge and

   Outcome Respondent answered no to this question.

4. Respondent's answers to question 13 on the March 10, 1980, application and question 15 on the March 28, 1982, application were false.

   
   

5. On December 11, 1970, the State Attorney for the Second Judicial Circuit of the State of Florida, filed an information with the circuit court which charged that respondent did on December 3, 1970, in Leon County, Florida

   
   

   ... knowingly commit a lewd or lascivious act in the presence of Alice Leigh Divita, a female child under the age of fourteen years, to-wit: of the age of six years, without intent to commit rape upon said child, contrary to Section 800.04, F.S.

6. On March 9, 1971, respondent entered a plea of guilty to the crime of fondling, as charged in the information. The court withheld adjudication of guilty and imposition of sentence, and placed respondent on probation for a period of three years.

   
   

7. At hearing, respondent conceded that he had been charged with the aforementioned felony. He averred, however, that his failure to disclose such charge on his applications was not intended to be deceitful but was premised on his belief that he could properly answer no to such inquiries because adjudication of guilty had been withheld.

   
   

8. While respondent may reasonably have believed that he could respond in the negative to an inquiry concerning felony convictions, his contention that he held an honest belief that he could also respond in the negative to inquiries about whether the had ever been charged with a felony is not persuasive.

   
   

9. But for the foregoing charge, respondent has not been charged or convicted of any other felonies. Nor, has the respondent been shown to have engaged in any improprieties as an insurance agent.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The administrative complaint charges that respondent's conduct violated the following provisions of Section 626.611, Florida Statutes:

    
    

    ... 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, it if finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:

    (2) Material misstatement, misrepresentation, 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.

    
    

    The administrative complaint also charges that respondent's conduct violated the following provisions of Section 626.621, Florida Statutes:

    
    

    ... 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, supervision 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:

    (1) Any cause for which

    insurance 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.

    
    

12. In the instant case, the proof is clear and convincing that respondent pled guilty to a felony in this state which involves moral turpitude, and that his failure to disclose such charge on his applications for licensure was a material misstatement or misrepresentation. Petitioner has therefore sustained its burden to demonstrate that respondent violated the provisions of Section 626.611(2) and (14), and Section 626.621(1) and (8), Florida Statutes.

    
    

13. Petitioner's charge that respondent's conduct violated the provisions of Section 626.611(7) has not, however, been sustained. This conclusion is premised on the lack of any proof by the agency to demonstrate a nexus between such conviction or failure to disclose and a "demonstrated lack of fitness or trustworthiness to engage in the business of insurance."

    
    

14. In considering an appropriate penalty in this case, I have considered, among other things, the nature of the crime with which respondent was charged, the passage of time since the crime was perpetrated, the absence of any subsequent untoward conduct, and the length of time respondent has been licensed as an insurance agent. While respondent's failure to disclose the felony charge that was lodged against him in 1970, as well as his plea of guilty to that felony, constitute a violation of Sections 626.611 and 626.621, Florida Statutes, such acts are not, under the circumstances, of a sufficiently current

nature as to mandate the revocation of his license. Rather, an appropriate penalty in this case is a three-month suspension.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending respondent's licensure

and eligibility for licensure for three months.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1988.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2 & 3. Addressed in paragraph 2.

4 & 5. Addressed in paragraph 3.

6. Addressed in paragraph 5.

7 & 8 Addressed in paragraph 6.

9 & 10. Addressed in paragraphs 7 and 8.

11. Addressed in paragraph 9. 12-14. Rejected as not relevant.

COPIES FURNISHED:

S. Marc Herskovitz, Esquire Office of Legal Services 413-B Larson Building

Tallahassee, Florida 32399-0300

Thomas L. Neilson, Esquire

105 West Fifth Avenue Tallahassee, Florida 32303

The Honorable William Gunter State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Don Dowdell, Esquire General Counsel

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Docket for Case No: 88-001148

Orders for Case No: 88-001148