STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1178

)

RONALD J. WIERENGA, JR., )

)

Respondent. )

) RONALD J. WIERENGA, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 91-1502

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on April 18, 1991, in Tallahassee, Florida. The following appearances were entered:

APPEARANCES

For Department: S. Marc Herskovitz, Esquire of Insurance 412 Larson Building

and Treasurer: Tallahassee, Florida 32399-0300

For Ronald J. Ronald L. Jones, Esquire

Wierenga: 1367 East Lafayette Street, Suite C

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues for determination are whether the Department of Insurance and Treasurer (Petitioner) properly denied the application of Ronald J. Wierenga (Respondent) for licensure as an insurance adjuster; and whether there exists an adequate basis in the form of violations of Chapter 626, Florida Statutes, sufficient to subject Respondent's existing licensure as an adjuster to disciplinary action.

PRELIMINARY STATEMENT

On November 6, 1990, Petitioner issued an Administrative Complaint charging Respondent with violation of various provisions of Chapter 626, Florida Statutes. The gravamen of those charges are that Respondent entered a plea of nolo contendere to four counts of aggravated assault in response to charges filed against him in the Circuit Court for the Second Judicial Circuit in Leon County, Florida.

Issuance of the Administrative Complaint followed Petitioner's November 1, 1990, denial of Respondent's application for further licensure as an adjuster on the same facts and circumstances.

Respondent requested a formal administrative hearing on the charges contained in the Administrative Complaint and, later, upon Petitioner's denial of the licensure application.

Subsequently, both matters were transferred to the Division Of Administrative Hearings for conduct of formal hearings pursuant to Section 120.57(1), Florida Statutes. By order of the hearing officer dated March 26, 1991, the two cases were consolidated for purpose of further proceedings.

At the hearing, Petitioner presented the testimony of one witness, Daniel W. Buie of the Tallahassee Police Department, and four evidentiary exhibits. Respondent offered no testimony or exhibits.

The transcript of the hearing was filed with the Division of Administrative Hearings on April 30, 1991. Proposed findings of fact submitted by the parties are addressed in the appendix attached to this recommended order.

FINDINGS OF FACT

1. Respondent is Ronald J. Wierenga, currently licensed by Petitioner as a Company Employee Adjuster - Motor Vehicle Physical Damage and Mechanical Breakdown Insurance and a Company Adjuster- Casualty.

   
   

2. At all times pertinent to the dates and occurrences referred to in the Administrative Complaint, Respondent was eligible for licensure or licensed as an insurance agent in the State of Florida.

   
   

3. On May 8, 1990, Tallahassee Police Officer Daniel Buie investigated an incident at an establishment known as Breaktime Billiards, where an individual with a firearm was reportedly detaining patrons.

   
   

4. When Buie arrived at the scene, he observed two individuals straightening up from lying in a prone position over the front of a motor vehicle. Respondent was walking away from a position behind the two individuals and in a direction that took him past Buie.

   
   

5. Buie reached out to make contact with Respondent's body and keep Respondent in his field of vision. As Buie's arm made contact with Respondent's back, Buie discovered Respondent was carrying a .380 caliber semiautomatic pistol.

   
   

6. Respondent was wearing a blue jacket emblazoned with the words "Department of Justice, Federal Bureau of Prisons" printed on the back. Just below that wording was printed the words "federal officers".

   
   

7. Subsequently, Respondent was transported to the Leon County Jail where, after being advised of his Miranda rights, he told Buie that he had put on the jacket and gotten the pistol from his vehicle in order to effect the arrest of the other two individuals at the scene because he suspected them of trafficking in cocaine. At the time, Respondent was not an employee of the Department of Justice, Federal Bureau of Prisons.

   
   

8. At the time he was taken into custody, Respondent was lucid and did not appear to be under the influence of any behavior modifying substances.

   
   

9. On June 12, 1990, Respondent was charged by Information filed in the Circuit Court for the Second Judicial Circuit in Leon

   County, Florida, with four counts of Aggravated Assault with a Deadly Weapon, as well as other charges.

   
   

10. On August 14, 1990, Respondent entered a plea of nolo contendere to four courts of Aggravated Assault, a felony of the third degree. Other charges against Respondent were dropped, and he was placed on probation for a period of five years. Adjudication of guilt was withheld.

CONCLUSIONS OF LAW

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

   
   

2. The Administrative Complaint alleges Respondent committed violations of Section 626.611(7), Section 626.611(14), and Section 626.621(8), Florida Statutes, as a result of his arrest and subsequent plea to the charges leveled against him.

   
   

3. Section 626.611(7), and Section 626.611(14), Florida Statutes, set forth grounds where Petitioner must suspend or revoke a licensee or deny an applicant for licensure. Those sections read as follows:

   
   

   626.611 Grounds for compulsory refusal, suspension of 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.

   * * * * *

   (7) Demonstrated lack of fitness to 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 or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgement of conviction has been entered by the court having jurisdiction of such cases.

4. In similar fashion, Section 626.621(8), Florida Statutes, authorizes the suspension, revocation or denial of a license in Petitioner's discretion where the felony offense committed by the licensee or applicant does not contain the element of "moral turpitude".

   
   

5. Respondent entered a plea of no contest or nolo contendere to four counts of aggravated assault. With regard to that charge, Section 784.021, Florida Statutes, provides:

   
   

   Aggravated Assault.

   1. An "aggravated assault" is an assault:

      1. With a deadly weapon without intent to kill; or

      2. With an intent to commit a felony.

   2. Whosoever commits an aggravated assault shall be guilty of a felony in the third degree.

      
      

6. The elements of aggravated assault necessarily include those of the crime of simple misdemeanor assault, which are set forth in Section 784.011(1), Florida Statutes, as follows:

   
   

   784.011 Assault.--

   An "assault" is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

   
   

7. As egregious as his conduct was, the proof establishes only that Respondent seized the moment, through his own vigilante action, to prevent the perpetuation of what he perceived to be a drug trafficking crime. His intention appears to negate the existence of "moral turpitude" in the circumstances of this case as that term was defined in State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So.2d 660, 661 (Fla. Sup. Ct. 1938), when the Court stated that:

   
   

   [Moral turpitude] often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. Pullman's Palace-Car Company v. Central Transport Co. (C.C.) 65 F. 158. (Emphasis Supplied).

8. Petitioner has not shown clearly and convincingly that Respondent intended to act illegally with regard to the rights of others. What Petitioner has shown is that Respondent acted from a position of good intention, although with considerable recklessness and error in judgement.

   
   

9. Petitioner bears the burden of proving by "clear and convincing evidence" the allegations of the administrative complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. Petitioner has met this burden with regard to Respondent's nolo contendere plea to a felony in violation of Section 626.621(8), Florida Statutes. A circumstance authorizing the suspension, revocation or denial of a license in Petitioner's discretion where the felony offense committed by the licensee or applicant does not contain the element of "moral turpitude".

    
    

11. Further, Respondent's failure to present evidence in support of his application dictates that his application for further licensure by Respondent should be denied. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981)

    
    

12. In arriving at a determination of appropriate discipline to be recommended in this matter, attention has been given to Section 626.681, Florida Statutes, which authorizes Petitioner to impose an administrative penalty of $500 in lieu of suspension of Respondent's license. Further, Section 626.691, Florida Statutes, authorizes the imposition of probation upon a individual's licensure status for a period not to exceed two years.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying Respondent's application for licensure; placing his present license on probation for a period of one year upon such reasonable terms and conditions as may be determined by the Department of Insurance and Treasurer; and requiring Respondent to pay an administrative penalty of $500.

DONE AND ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeS6to Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991.

COPIES FURNISHED:

S. Marc Herskovitz, Esq.

412 Larson Building Tallahassee, FL 32399-0300

Ronald L. Jones, Esq.

1367 East Lafayette Street, Suite C Tallahassee, FL 32301

Honorable Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol

Tallahassee, FL 32399-0300

Bill O'Neil, Esquire

The Capitol, Plaza Level Tallahassee, FL 32399-0300

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

Adopted in substance.

Respondent's Proposed Findings.

1. Adopted in substance.

2. Adopted, except that exhibits presented indicate that Respondent plea no contest with regard to four counts of aggravated assault.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-001178

Orders for Case No: 91-001178