STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1602

)

RICHARD FISHBEIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in the above-styled case by telephone conference call on August 24, 1992 by Joyous D. Parrish, a hearing officer with the Division of Administrative Hearings. The parties to the conference call included:

APPEARANCES

For Petitioner: Joseph D. Mandt

Division of Legal Services Department of Insurance and

Treasurer

412 Larson Building Tallahassee, FL 32399-0300

For Respondent: Richard Fishbein, pro se

2815 Caribbean Isle Boulevard, #506

Melbourne, FL 32953 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated January 21, 1992; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on January 21, 1992, when the Department of Insurance and Treasurer (Department) filed an administrative complaint against the Respondent, Richard Fishbein, that alleged violations of Sections 634.181(1) and 634.191(1), Florida Statutes. More specifically, the administrative complaint alleged Respondent had, under oath, failed to accurately disclose information in the completion of his application for state registration as a service warranty association salesman. Such failure was alleged to be in connection with question #8 in the application form wherein Respondent was asked the question: "Have you ever been charged with a felony?"

Respondent disputed the allegations of the administrative complaint, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on March 10, 1992.

During the hearing, Respondent testified as to the matters at issue and Petitioner's exhibits numbered 1 through 3 were admitted into evidence. A transcript of the proceedings has not been filed. Rulings on the proposed findings of fact submitted by the Department are included in the appendix to this order.

FINDINGS OF FACT

1. At all times material to this case, Respondent is and has been registered as a service warranty association salesman.

   
   

2. In order to become registered as a service warranty association salesman Respondent completed, under oath, an application for state registration.

   
   

3. That application was executed by Respondent on October 19, 1989, and included the following question:

   
   

   Have you ever been charged with a felony?

   
   

4. The handwritten response entered by Respondent to the foregoing question was "no".

   
   

5. Following completion of the application, and, presumably based upon the information contained therein, Respondent was registered by the Department as a service warranty association salesman.

   
   

6. On June 2, 1989, Respondent was charged with a felony, aggravated battery, and by information was subjected to prosecution for committing an act contrary to Sections 784.03(1)(a)(b) and 784.045(1)(a)(2), Florida Statutes.

   
   

7. On September 29, 1989, Respondent entered a plea of guilty to the charge described above and was placed on probation for thirty months. Adjudication of guilt for the above-described crime was withheld.

   
   

8. As of the time of hearing, Respondent had not sought, nor obtained, an expungement of the foregoing criminal record.

   
   

9. Respondent did not truthfully answer the application question pertaining to his past felony charge.

   
   

10. Respondent has not offered a credible explanation as to why he entered a false response on the application for state registration.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this matter.

12. Section 634.181, Florida Statutes, provides, in pertinent part: The department shall deny, suspend, revoke,

    or refuse to renew or continue the license

    or appointment of any such salesman if it finds that as to the salesman any one or more of the following applicable grounds exist:

    
    

    1. Material misstatement, misrepresentation, or fraud in obtaining or attempting to obtain the license or appointment.

       
       

13. Section 634.181(5), Florida Statutes, provides:

    
    

    (5) For demonstrated lack of fitness or trustworthiness to engage in the service

    agreement business.

    
    

14. Section 634.181(11), Florida Statutes, provides:

    
    

    (11) 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 any state thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the cases.

15. Section 634.191, Florida Statutes, provides; in pertinent part: The department may, in its discretion, deny,

    suspend, revoke, or refuse to renew or continue the license or appointment of any salesman if it finds that as to the salesman 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.634.181:

    
    

    1. For any cause for which granting of the license or appointment could have been refused had it then existed and been known to the department.

       
       

16. Section 634.191(6), Florida Statutes, provides:

    
    

    (6) 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 any state thereof or under the law of any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the cases.

    
    

17. In this case the Department has established, by clear and convincing evidence, that the Respondent submitted false information on his application for

state registration. Respondent offered no credible excuse for the misrepresentation. The question posed and Respondent's answer were directly in conflict with Respondent's criminal history. As a result, Respondent violated Section 346.181(1), Florida Statutes.

RECOMMENDATION

Based upon the foregoing it is recommended that the Department of Insurance and Treasurer enter a final order suspending Respondent's registration for a period of three months.

DONE and ENTERED this 21st day of October, 1992, at Tallahassee, Florida.

JOYOUS D. PARRISH

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 21st day of October, 1992.

APPENDIX

Rulings on the proposed findings of fact submitted by Petitioner.

1. Paragraphs 1 through 9 are accepted.

Rulings on the proposed findings of fact submitted by Respondent.

1. None submitted.

COPIES FURNISHED TO:

Tom Gallagher, State Treasurer and Insurance Commissioner

Department of Insurance and Treasurer The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance

The Capitol, PL-11

Tallahassee, Florida 32399-0300

Joseph D. Mandt

Division of Legal Services Department of Insurance and

Treasurer

412 Larson Building

Tallahassee, Florida 32399-0300

Richard Fishbein, pro se

2815 Caribbean Isle Boulevard, #506

Melbourne, Florida 32953

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 consult with 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: 92-001602

Orders for Case No: 92-001602