STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MALCOLM ALFRED FELDMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0725

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on April 12, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Malcolm Alfred Feldman, Pro se

4820 Southwest 12th Court

Fort Lauderdale, Florida 33317

For Respondent: James A. Bossart, Esquire

Department of Insurance

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUES

The ultimate issue for determination in this proceeding is whether Petitioner's application for licensure as a General Lines insurance agent should be approved.

PRELIMINARY STATEMENT

Respondent denied Petitioner's application for licensure as a General Lines insurance agent by letter dated December 3, 1990. Petitioner requested a formal hearing by letter dated December 26, 1990.

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on February 4, 1991, assigned to Hearing Officer Rigot on February 7, 1991. A formal hearing was scheduled for April 12, 1991, pursuant to a Notice of Hearing issued on March 1, 1991. The matter was transferred to the undersigned prior to the formal hearing.

At the formal hearing, Petitioner testified in his own behalf and submitted one exhibit which was admitted in evidence without objection. Respondent called one witness and submitted 16 exhibits for admission in evidence. Respondent's

Exhibits 1, 4-6, and 8-16 were admitted in evidence without objection. Respondent's Exhibits 2, 3, and 7 were admitted in evidence over objection.

A transcript of the record of the formal hearing was filed with the undersigned on May 10, 1991. Proposed findings of fact and conclusions of law were timely filed by Respondent on May 20, 1991. Petitioner did not file proposed findings of fact and conclusions of law. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is the administrative agency charged with responsibility for administering and enforcing the provisions of Chapter 626, Florida Statutes. /1 Petitioner is an adult male in his 60's who applied for licensure by Respondent on August 28, 1990.

   
   

2. Prior to February 5, 1987, Petitioner was licensed by Respondent as an Ordinary Life and Insurance Agent. The license status included the designations of Health Insurance Agent and General Lines Agent.

   
   

3. Respondent filed an Administrative Complaint against Petitioner on or about February 5, 1987 in Case No. 87-L-06RET. Petitioner was charged by the state with criminal violations on or about March 20, 1987. An Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, in Case No. 87-4964. The Information charged Petitioner with first degree grand theft in violation of Sections 812.014(1)(b) and (2(b), Florida Statutes.

   
   

4. The facts alleged in both the Administrative Complaint and the criminal Information were essentially the same. Between August 1, 1985, and February 28, 1986, Petitioner received funds from James DeVita in Petitioner's fiduciary capacity as Mr. DeVita's insurance agent. The funds were delivered to Petitioner as premium payments on commercial liability insurance policies Mr. DeVita wished to purchase.

   
   

5. A portion of the funds given to Petitioner were paid over to the insurance company and some of the policies were issued. The remaining portion of the funds were never delivered to the insurance company. The remaining policies were never issued, and the issued policies eventually lapsed. Mr. DeVita was not insured even though Petitioner represented to Mr. DeVita that he was insured.

   
   

6. Petitioner entered into a Settlement Stipulation and Consent Order with Respondent on or about June 16, 1987 (the "Consent Order"). Pursuant to the Consent Order, Petitioner surrendered his insurance license and eligibility for licensure.

   
   

7. Petitioner entered a plea of nolo contendere in the criminal case on or about December 21, 1987. Adjudication of guilt was withheld, and Petitioner was placed on probation for 10 years. Petitioner was also ordered to pay restitution to Mr. DeVita in the amount of $35,000.

   
   

8. Petitioner satisfactorily completed his probation and was released from the terms of the probation prior to the date of the formal hearing in this proceeding. However, Petitioner made no payments of restitution to Mr. DeVita.

9. Petitioner has been financially unable to make restitution payments to Mr. DeVita. Petitioner went through bankruptcy after his criminal prosecution. Without his insurance license, Petitioner was unable to earn the level of income needed to make such payments. Petitioner has supported himself with various jobs that he could find from time to time.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

11. The burden of proof is on Petitioner. Petitioner must show by a preponderance of the evidence that he is entitled to the relief requested. Florida Administrative Code Rule 28-6.008(3). See also James Allen Reynolds v. Department of Insurance and Treasurer, 10 F.A.L.R. 251 at 254.

    
    

12. Respondent is required by Section 626.611, Florida Statutes, to refuse to issue a license to Petitioner if Petitioner has been found guilty of a felony which involves moral turpitude or has pled nolo contendere to such a crime without regard to whether judgment has been withheld. See Section 626.611(14), Florida Statutes. Respondent may refuse to issue a license to Petitioner under the same circumstances pursuant to Section 626.621(8), Florida Statutes. Grand theft is crime that involves moral turpitude. Soetarto v. Immigration and Naturalization Service, 516 F.2d 778 (7th Cir. 1975).

    
    

13. Respondent has discretion under Section 626.641(2), Florida Statues, to refuse to issue a license to Petitioner if Respondent finds that the circumstances for which Petitioner's license eligibility or license revocation still exist or are likely to recur. Petitioner's voluntary surrender of his license in 1987 has the same force and effect as if it had been revoked. Section 626.641(2), Florida Statutes.

    
    

14. The circumstances for which Petitioner's license eligibility or license was revoked do not still exist and are not likely to recur. The difficult circumstances facing Petitioner in 1987, including the death of his wife and personal bankruptcy, are now behind him. Petitioner successfully completed his probation much earlier than scheduled. Except for the payment of restitution to Mr. DeVita, Petitioner has paid the penalty imposed upon him for his prior mistakes. Petitioner has supported himself with any job he could secure. However, he has not been able to work in the insurance industry and has not been able to earn the income necessary to make restitution payments to Mr. DeVita. Petitioner would willingly make restitution payments to Mr. DeVita if Petitioner had the financial ability to do so. Regrettably, Respondent is precluded by Section 626.611(14), Florida Statutes, from exercising its discretion to grant Petitioner's application for licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure should be DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June 1991.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of June 1991.

ENDNOTE

1/ All statutory references are to Florida Statutes (1989)as amended by Florida Statutes (Supp. 1990) unless provided otherwise.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-0725

Petitioner did not submit proposed findings of fact.

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Respondent did not submit proposed findings of fact.

Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 and 2 Accepted in Finding 1

1. Accepted in Finding 2

2. Accepted in Finding 3

3. Accepted in Finding 4, 5

4. Accepted in Findings 6

5. Accepted in Finding 7

6. Accepted in Finding 8

COPIES FURNISHED:

The Honorable Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, Esquire General Counsel

Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

James A. Bossart, Esquire Department of Insurance

412 Larson Building Tallahassee, Florida 32399-0300

Malcolm Alfred Feldman 4820 S.W. 12th Court

Fort Lauderdale, Florida 33317

Docket for Case No: 91-000725

Orders for Case No: 91-000725