STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) Case No. 97-0723

)

SERGIO RAMON GARCIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 24, 1997, at Fort Lauderdale, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Felicia Washington, Esquire

Joseph A. Robles, Esquire1 Department of Insurance

200 East Gaines Street 612F Larson Building

Tallahassee, Florida 32399-0333

For Respondent: Charles J. Grimsley, Esquire

Charles J. Grimsley & Associates, P.A. 1880 Brickell Avenue

Miami, Florida 33129 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

By an Administrative Complaint dated November 26, 1996, the Department of Insurance and Treasurer (Petitioner) charged Sergio Ramon Garcia (Respondent) with five violations of Chapter 626, Florida Statutes. Petitioner charged Respondent with: (1) violating Subsection 626.611(1), Florida Statutes, by lacking one or more of the qualifications for the license or permit as specified in the Insurance Code; (2) violating Subsection 626.611(7), Florida Statutes, by demonstrating lack of fitness or trustworthiness to engage in the business of insurance; (3) violating Subsection 626.611(14), Florida Statutes, by having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of one year or more under the laws of the United States or of any state thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgment or conviction has been entered by the court having jurisdiction of such cases; (4) violating Subsection 626.621(1), Florida Statutes, by committing any cause for which issuance of the license or permit could have been refused had it then existed and been known to Petitioner; and (5) violating Subsection 626.621(8), Florida Statutes, by having been found guilty of or having pleaded guilty or nolo contendere to a felony or crime punishable by imprisonment of one year or more under the laws of the United States or of any state

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

By an Election of Rights, Respondent disputed the allegations of fact and requested a formal hearing.

On February 13, 1997, this matter was referred to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of one witness and entered two exhibits into evidence. Respondent testified in his own behalf, presented the testimony of three witnesses, and entered no exhibits into evidence.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

The parties submitted proposed recommended orders which have been considered in this recommended order.

FINDINGS OF FACT

1. At all times material hereto, Sergio Ramon Garcia (Garcia) was licensed by the State of Florida as a life and variable annuity contracts agent, life agent, life and health agent, general lines agent, health insurance agent, and legal expense insurance agent, having been issued license number 266253905.

2. On the evening of July 20, 1991, while leaving his insurance office in Dade County, Florida, Mr. Garcia was the

   victim of a violent crime. Two individuals with firearms attempted to rob Mr. Garcia. He was shot five times. As a result of his injuries, Mr. Garcia was in surgery for several hours, in intensive care for two weeks, and in the hospital for approximately two months. He was paralyzed from the waist down.

3. Mr. Garcia received rehabilitation for a considerable amount of time. At first, there was no expectation that he was going to walk again. Mr. Garcia was confined to a wheelchair. Through physical therapy, he progressed from the wheelchair to a walker, to crutches, and to a cane. Now, Mr. Garcia is able to walk without any assistance.

4. During his rehabilitation period, Mr. Garcia used a bicycle for therapy that he had purchased for his personal pleasure years before the shooting. His physical therapist had recommended using the bicycle to exercise his legs. Mr. Garcia rode the bicycle every morning and every evening. He became very sentimental toward the bicycle and referred to the bicycle as his “friend.”

5. The bicycle had distinct features. It was specially modified to accommodate his therapy needs (a specially wide seat for his hip problems) and was white, including the handle bars.

6. Mr. Garcia has undergone 12 operations and more are expected. He has screws in his hips, and the screws will have to be replaced through surgery. Mr. Garcia experiences pain daily and continues to take medication for pain. Furthermore,

   Mr. Garcia continues to attend physical therapy.

   
   

7. After the shooting, Mr. Garcia’s then business partner purchased a handgun, a .22 caliber Derringer, and gave it to Mr. Garcia for protection. The handgun was a small weapon which would fit within the palm of Mr. Garcia's hand. Mr. Garcia obtained a license to carry a concealed weapon.

8. Subsequently, Mr. Garcia and his wife decided to move to Broward County, Florida. Mr. Garcia did not receive the renewal for his concealed weapons license when they moved; notwithstanding, approximately three weeks prior to the incident, Mr. Garcia renewed his concealed weapons license. It is inferred and a finding is made that, at the time of the incident,

   Mr. Garcia had renewed his concealed weapons license, and the license was valid.2

9. In January 1996, Mr. Garcia’s bicycle was stolen. The theft was reported to the proper law enforcement agency which requested the bicycle's serial number; however, the Garcias were unable to provide the serial number to the law enforcement agency.

10. On a cold morning on or about February 21, 1996, after driving his children to school, Mr. Garcia observed a male riding, what Mr. Garcia determined to be, his bicycle. He drove alongside the male and tried to get the male to stop, but to no avail. Finally, Mr. Garcia pulled his vehicle in front of the male and stopped, forcing the male to stop. The male got off the

    bicycle and reached into his jacket.

    
    

11. Mr. Garcia had his handgun in the pocket of his pants. He believed that his concealed weapons license was valid.3

12. Believing that the male was reaching for a handgun,

    
    

    Mr. Garcia became fearful for his life. Mr. Garcia reached into his pocket and pulled out his own handgun. However, the handgun, having a hair-trigger, accidentally discharged while he was pulling it from his pocket. Mr. Garcia did not point the handgun at the male. The projectile from the handgun hit the ground.

    The male got back on the bicycle and rode away. Not being able to run after the male because of his physical condition,

    Mr. Garcia returned to his vehicle, placed the handgun under the seat of his vehicle, and drove after the male.

13. Mr. Garcia saw the male talking with a traffic assistance officer and stopped. Mr. Garcia approached them, explained that the bicycle belonged to him and demanded the bicycle from the male. Mr. Garcia put the bicycle in his car and took the bicycle home. An investigation by the local law enforcement agency ensued.

14. As part of the investigation, Mr. Garcia was requested to provide the serial number for the bicycle. He was unable to provide a serial number and had no documents showing a serial number. However, Mr. Garcia did provide photographs of his bicycle and a receipt, identifying the same type of bicycle.

15. On or about February 21, 1996, an information was filed

    against Mr. Garcia in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Case No. 96-5453CF. Mr. Garcia was charged with one count of aggravated assault with a firearm, which is a felony, and one count of carrying a concealed weapon, which is also a felony.

16. On or about March 25, 1996, Mr. Garcia was arrested and charged with aggravated assault and carrying a concealed weapon.

17. Mr. Garcia obtained counsel who strongly advised him to plead nolo contendere to the charges. His counsel advised him that, even though the prosecution’s case was very weak, a jury was unpredictable,4 and, therefore, an acquittal could not be guaranteed. Further, Mr. Garcia’s counsel advised him that, if he was convicted, he could be sentenced to a mandatory three-year prison sentence. In return for the plea of nolo contendere, the State Attorney's office waived the primary offense which carried a mandatory minimum three-year sentence.

18. Mr. Garcia’s wife agreed with his counsel and recommended and encouraged her husband to plead nolo contendere to the charges. She did not want to face the possibility of her husband being convicted of the charges and going to prison.

19. On or about July 22, 1996, Mr. Garcia entered a plea of nolo contendere to both felonies. The Circuit Judge withheld adjudication and sentenced Mr. Garcia to one year of community service and one year of probation for both felonies.

20. Taking the initiative, Mr. Garcia voluntarily notified

    the Department of Insurance (Department) of the criminal charges against him, the nolo contendere plea, and the sentence imposed.

21. At the hearing, neither the male who was riding the bicycle nor any alleged eye-witnesses testified.

22. A finding is made that Mr. Garcia was in fear for his life and was defending himself when he pulled his handgun from the pocket of his pants.

23. Since the incident on February 21, 1996, the bicycle has remained in Mr. Garcia’s possession. No claim for the bicycle has been made by the male who was riding it that day. It is inferred and a finding is made that Mr. Garcia is the owner of the bicycle.

24. Mr. Garcia and his wife are partners in the insurance business. Mrs. Garcia is a licensed insurance agent by the Department. They have over 5,000 clients.

25. Mr. Garcia and his wife employ over 30 people. Their workforce includes individuals who are in work release programs, and the Garcias attempt to assist them in getting their lives back together.

26. The Vice President of the Dade County Board of Specialty Agencies testified as a character witness for

    Mr. Garcia. In the Vice President’s opinion, Mr. Garcia is, among other things, a very dedicated, conscientious, and responsible person.

27. Mr. Garcia has been licensed since 1985.

28. The Department has taken no prior disciplinary action against Mr. Garcia.

    CONCLUSIONS OF LAW

    
    

29. Pursuant to Section 120.569, Florida Statutes (Supp. 1996), and Subsection 120.57(1), Florida Statutes (Supp. 1966), the Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto.

30. License revocation proceedings are penal in nature. The burden of proof is on the Department of Insurance to establish the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

31. Section 626.611, Florida Statutes, provides in pertinent part:

    The department shall deny any application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, solicitor, adjuster, customer representative, service representative, managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee, any one or more of the following applicable grounds exist:

    
    

    1. Lack of one or more of the qualifications for the license or appointment as specified in this code.

       
       

       * * *

       (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 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 judgment of conviction has been entered by the court having jurisdiction of such cases.

       For offenses enumerated in Section 626.611, the suspension or revocation of a license is mandatory.

32. Section 626.621, Florida Statutes, provides in pertinent part:

    The department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, solicitor, adjuster, customer representative, service representative, managing general agent, or claims investigator, and it may suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee 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 issuance of the license or appointment 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 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, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

       For the offenses enumerated in Section 626.621, the suspension or revocation of a license is discretionary.

33. Section 784.011, Florida Statutes, provides in pertinent part:

    1. 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.

       
       

34. Section 784.021, Florida Statutes, provides in pertinent part:

    1. An "aggravated assault" is an assault:

       
       

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

          
          

          * * *

          
          

    2. Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

       
       

35. Section 790.001, Florida Statutes, provides in pertinent part:

    (2) "Concealed firearm" means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.

    * * *

    
    

    (6) "Firearm" means any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.

36. Section 790.01, Florida Statutes, provides in pertinent part:

    (2) Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

    
    

37. Section 790.06, Florida Statutes, provides in pertinent part:

    1. The Department of State is authorized to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section. . . Such licenses shall be valid throughout the state for a period of 3 years from the date of issuance. Any person in compliance with the terms of such license may carry a concealed weapon or concealed firearm notwithstanding the provisions of s. 790.01. . .

       
       

    2. The Department shall issue a license if the applicant:

       
       

       * * *

       
       

       1. Desires a legal means to carry a concealed weapon or firearm for lawful self- defense;

          
          

       2. Demonstrates competence with a firearm

       . . . .

38. There is no dispute that Mr. Garcia’s .22 caliber Derringer is a firearm.

39. Moreover, there is no dispute that the criminal offenses of aggravated assault and carrying a concealed weapon are felonies and that Mr. Garcia pled nolo contendere to the criminal offenses.

40. Both Subsections 626.611(14) and 626.621(18) are identical, except that, under Subsection 626.611(14), the crimes must involve "moral turpitude."

1. The Supreme Court of Florida addressed the definition of moral turpitude in State ex rel. Tullidge v. Hollingsworth,

   146 So. 660, 661 (Fla. 1933), involving the revocation of a medical license, and defined it as follows:

   Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted). It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. (citation omitted).

2. The Supreme Court of Florida in The Florida Bar v. Davis, 361 So. 2d 159, 161 (Fla. 1978) expounded on identifying crimes involving moral turpitude. One, where the act committed is, in all circumstances, vile and depraved, the illegal conduct involves moral turpitude. Two, where the act committed is violative of the law and is contrary to honesty, justice, or good morals, and where intent is present, the illegal conduct involves

   moral turpitude. Three, where the act committed is violative of the law and is contrary to honesty, justice, or good morals, but where intent is absent, the attendant circumstances must be considered to determine if the illegal conduct involves moral turpitude. See also, Pearl v. Florida Board of Real Estate,

   394 So. 2d 189, 191 (Fla. 3d DCA 1981), citing Tullidge, supra.

   
   

3. The criminal acts to which Mr. Garcia pled nolo contendere are not vile and depraved. However, the acts are violative of the law and contrary to good morals, but intent is absent. Examining the circumstances surrounding Mr. Garcia's actions in the absence of intent, his conduct does not involve moral turpitude. Consequently, the Department failed to demonstrate that Mr. Garcia violated Subsection 626.611(14).

4. As the illegal conduct to which Mr. Garcia pled nolo contendere does not involve moral turpitude, the Department has demonstrated that Mr. Garcia violated Subsection 626.621(8). The Department's discretionary power to suspend or revoke

   Mr. Garcia's license is, therefore, applicable.

   
   

5. Further, contrary to the Department's position, it has failed to demonstrate that Mr. Garcia committed the crimes of aggravated assault and carrying a concealed weapon.

6. The Department has failed to demonstrate that Mr. Garcia violated Subsections 626.611(1) and (7), and Subsection 626.621(1).

7. As to penalty, Rule 4-231.150, Florida Administrative

   Code, provides that, if a licensee is found to have violated Subsection 626.621(8) and if the conduct is not related to the insurance license, a two-month suspension shall be imposed. The felony charges to which Mr. Garcia pled nolo contendere arose from a single incident. No compelling reason exists to apply the penalty, under this Rule, to each felony separately.

8. Additionally, pursuant to Rule 4-231.160, Florida Administrative Code, other factors which may mitigate or aggravate a penalty shall be considered. As to mitigation of penalty, the following factors are considered: (1) At the time of the hearing, almost one year had elapsed since Mr. Garcia's plea and the imposition of the sentence, and Mr. Garcia had less than three months remaining on his one year of community service and one year of probation, with no violations of his probation;

   1. There was no substantial injury to the alleged victim;

      
      

   2. Adjudication was withheld by the court; (4) Mr. Garcia has been licensed for approximately 12 years, and no disciplinary action has been taken against him by the Department; and (5) Mr. Garcia fully cooperated with the Department in this action.

9. As to aggravation of penalty, the following factor is considered: (1) Even though Mr. Garcia knew that his firearm had a hair-trigger, he took no steps to correct the condition of his firearm, thereby endangering himself and others around him, as evidenced by the unintended discharge of his firearm. By having a concealed weapons license, a special responsibility of safety

was placed upon Mr. Garcia.

RECOMMENDATION

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

RECOMMENDED that the Department of Insurance and Treasurer issue a final order suspending the license of Sergio Ramon Garcia for one month.

DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997.

ENDNOTES

1/ Subsequent to the hearing, Joseph A. Robles, Esquire was substituted as counsel of record for Felicia Washington, Esquire.

2/ At the time of the incident on or about February 21, 1996, when Mr. Garcia had the handgun in his pocket, he believed that his concealed weapons license was valid. Mr. Garcia testified that he had renewed his license approximately three weeks "before this happening." No contrary evidence was presented regarding whether Mr. Garcia's concealed weapons license was renewed or valid at the time of the incident.

3/ See Finding of Fact 8.

4/ Mr. Garcia requested a jury trial on the felony charges.

COPIES FURNISHED:

Felicia Washington, Esquire Joseph A. Robles, Esquire Department of Insurance

200 East Gaines Street 612 Larson Building

Tallahassee, Florida 32399-0333

Charles Grimsley, Esquire 1880 Brickell Avenue

Miami, Florida 33129

Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level-26 Tallahassee, Florida 32399-0300

Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000723

Orders for Case No: 97-000723