STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE ) AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1374

)

LAZARO JESUS TOYOS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 18, 1988, in Miami, Florida.

Petitioner Department of Insurance and Treasurer was represented by Robert

1. Byerts, Esquire, Tallahassee, Florida; and Respondent Lazaro Jesus Toyos was represented by Leslie L. Florez, Esquire, Miami, Florida.

   
   

   Petitioner filed an Administrative Complaint against Respondent alleging that Respondent had committed several violations of the Florida Insurance Code for which disciplinary action should be taken. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained within that Administrative Complaint, and, if so, what disciplinary action should be taken, if any.

   
   

   The Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-5 were admitted in evidence.

   
   

   Although both parties requested leave to file post-hearing proposed findings of fact, only the Petitioner did so. A ruling on each of Petitioner's proposed findings of fact can be found in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent is and has been eligible for licensure and licensed as a life insurance agent, a an ordinary life including health insurance agent, as a general lines insurance agent, and as a health insurance agent.

      
      

   2. On July 25, 1986, Respondent pled guilty and was found guilty in the United States District Court for the Southern District of Florida of conspiracy to possess with intent to distribute cocaine, a felony. He was sentenced to serve one year and one day in a penal institution and was fined $50.

   3. On September 10, 1986, Respondent pled guilty and was convicted in the United States District Court for the Southern District of Florida of conspiracy to import marijuana, a felony. He was given a five year sentence to run concurrent with his other sentence, with the requirement that six months be served in a jail-type institution, and with the execution of the remainder of the sentence of imprisonment being suspended. Additionally, Respondent was placed on probation for a period of five years to commence upon his release from confinement, was assessed a fine of $50, and was required to perform 250 hours of community service work during his first year of probation, 200 hours of community service work during his second year of probation, and 100 hours of community service work during his third year of probation.

      
      

   4. Other charges involving either the sale or possession of machine guns were dismissed.

      
      

   5. No underlying facts regarding the marijuana conviction were offered in evidence.

      
      

   6. Respondent and a companion negotiated with federal undercover agents for the sale of approximately 4700 automatic weapons (machine guns). Those discussions ultimately lead into negotiations for the sale of 15 kilos of cocaine. The final agreement was that the first transaction would involve 10 kilos of cocaine. On July 10, 1985, Respondent and two companions sold to the undercover agents 2 kilos of cocaine, Respondent explaining to the undercover agents that there would be a delay in him supplying the additional 8 kilos.

      
      

   7. The actual sale took place at Respondent's insurance office, as had many of the telephone contacts between Respondent and the federal agents.

      
      

   8. Respondent and his companions were arrested at Respondent's insurance office immediately following Respondent's sale of the 2 kilos of cocaine to the federal agents. Three firearms were seized from Respondent and his companions at the time of their arrests.

      
      

   9. No evidence was offered to show that Respondent has completed serving his probation or that his civil rights have been restored.

      
      

   10. Respondent has been licensed by Petitioner since 975. None of his insurance licenses have been previously revoked.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

       
       

   12. Section 626.611, Florida Statutes, requires Petitioner to suspend or revoke the license of any agent and the eligibility to hold a license of any person who has

       
       

       (7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

       * * *

       (14) . . . 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.

       
       

       Section 626.621, Florida Statutes, allows Petitioner, in its discretion, to suspend or revoke the license of any agent and the eligibility to hold a license as an agent on the following grounds:

       
       

       (1) Any cause for which issuance 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.

       
       

       Although the Administrative Complaint filed herein charges Respondent with being guilty of the four subsections set forth above, Petitioner failed to rely on section 626.621(1), Florida Statutes, at the final hearing in this cause and in its proposed recommended order. Accordingly, Petitioner has abandoned its allegation that Respondent is guilty of violating that subsection.

       
       

   13. As to the allegations that Respondent is guilty of violating section 626.611(14) and 626.621(8), Florida Statutes, the Administrative Complaint filed herein charges Respondent with having pled guilty to, or having been guilty of, felonies in the United States District Court, and Respondent has filed an answer admitting those allegations. Petitioner offered no proof that those federal felonies are felonies "in this state or any other state . . ." The judgments of conviction admitted in this cause show that Respondent was convicted of violations of Title 21, United States Code, but no further evidence was offered to show that those federal charges constitute a felony in this state or in any other state.

       
       

   14. The law is clear, however, that a federal conviction of criminal conspiracy to traffic in illicit drugs demonstrates a lack of fitness or trustworthiness to engage in the business of insurance and therefore invokes the provisions of section 626.611(7), Florida Statutes, which makes suspension or revocation of an agent's licenses and eligibility for licensure mandatory. Paisley v. Department of Insurance, So.2d (Fla. 1st Dist. 1988)(Opinion filed May 25, 1988); Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st Dist. 1984).

       
       

   15. The only evidence offered in mitigation in this cause is the fact that Respondent has been licensed as an insurance agent since 1975 and his licenses have not yet been revoked. In aggravation of any penalty, Petitioner has shown both through Respondent's own admissions at the final hearing in this cause and through the Criminal Complaint and supporting Affidavit admitted in evidence in this cause without objection that Respondent agreed to sell 10 kilos of cocaine out of his insurance agency office and did in fact sell 2 kilos to undercover agents, that the cocaine transaction arose from prior negotiations whereby Respondent conspired to sell 4700 machine guns to undercover agents but was unable to obtain possession of them, that Respondent used his telephone at his

insurance office for some of the contacts with the undercover agents, and that Respondent was armed while selling cocaine from his insurance agency office.

Although no evidence was offered to show the amount of marijuana Respondent also conspired to sell, the evidence is clear that Respondent is simply a person who cannot be trusted to abide by laws including those contained within the Florida Insurance Code. An insurance agent stands in a fiduciary position between the public purchasing insurance and the insurance companies themselves. Respondent has clearly shown that he is unable to occupy such a fiduciary position. An insurance agent constantly deals with funds belonging to others. Accordingly, the public must be protected from individuals who have demonstrated their inability to respect the law and who have exhibited their vulnerability to succumb to temptation involving unlawful financial gain.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent guilty of the factual allegations contained within the Administrative Complaint filed herein, revoking Respondent's licenses, and revoking Respondent's eligibility for licensure as an insurance agent in this state.

DONE and RECOMMENDED this 30th day of June, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 30th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER DOAH Case No. 88-1374

1. Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues under consideration herein.

   
   

3. Petitioner's proposed findings of fact numbered 7 and 8 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

COPIES FURNISHED:

William Gunter State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Robert C. Byerts, Esquire Department of Insurance 413-B Larson Building

Tallahassee, Florida 32399-0300

Leslie L. Florez, Esquire Ocean Bank Building, Suite 604 780 N.W. LeJune Road

Miami, Florida 33126

Don Dowdell, Esquire Department of Insurance 413-B Larson Building

Tallahassee, Florida 32399-0300

Docket for Case No: 88-001374

Orders for Case No: 88-001374