STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-0852

)

JOSEPH ANTHONY ISABELLA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a formal hearing in the above-styled case on April 13, 1999, by video teleconference, at sites in Tallahassee and Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert F. Langford, Jr., Esquire

Erhraim Livingston, Esquire Department of Insurance

645-A Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0307

For Respondent: No appearance at hearing

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 23, 1998, Petitioner issued a one-count Administrative Complaint whereby it alleged that Respondent, a licensed life insurance agent, violated various provisions of Sections 626.611 and 626.621, Florida Statutes, and was therefore subject to disciplinary action based on the following factual allegations:

1. On or about July 26, 1989, an Information was filed in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, charging you, JOSEPH ANTHONY ISABELLA, with one count of Obtaining Property in Return for Worthless Check in an amount over $150.00.

2. On or about March 8, 1991, in the Circuit Court in and for Palm Beach County, Florida, you, JOSEPH ANTHONY ISABELLA, pled guilty to one felony count of Obtaining Property in Return for Worthless Check in an amount over $150.00. Adjudication of guilty and sentence was withheld.

Respondent filed an election of rights which disputed the factual allegations contained in the Administrative Complaint, and Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes. Such a hearing was duly-noticed for April 13, 1999, and held as scheduled.1

At hearing, Petitioner called no witnesses; however, Petitioner's Exhibits A1-A6, and B were received into evidence.

Neither Respondent nor anyone on his behalf appeared at hearing, and no proof was offered on his behalf.

The transcript of hearing was filed on May 10, 1999, and the parties were accorded ten days from that date to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly-considered.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Joseph Anthony Isabella, was licensed by Petitioner, Department of Insurance (Department), as a life insurance agent, having been issued license number A128269.

2. On July 26, 1989, an Information was filed in the Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Florida, Case No. 89-10384CF A02, charging Respondent with one count of obtaining property or services in return for a worthless check, contrary to Section 832.05(4), Florida Statutes. Specifically, the Information alleged that:

   . . . JOSEPH ANTHONY ISABELLA on or about the 15th day of DECEMBER, 1988 in the County of Palm Beach and State of Florida, did unlawfully obtain services, goods, wares or other things of value from ABE GREEN, by means of a check in the amount of $8,515.00 drawn on the CAPITAL BANK, a banking corporation, bearing account number 4203001757, knowing at the time of the drawing, making, uttering, issuing or delivering of the said check that the said JOSEPH ANTHONY ISABELLA had not sufficient funds on deposit in or credit with such

   bank with which to pay the same on presentation. . . .

   
   

   Such offense constituted a felony of the third degree.

   
   

3. On or about March 8, 1991, Respondent pled guilty to the charge, and on March 20, 1991, the court entered an order (nunc pro tunc to March 8, 1991) withholding adjudication of guilt and placing Respondent on probation for a period of one year under the supervision of the Department of Corrections. The conditions of probation included the following:

   1. PROBATION TO TERMINATE ONCE RESTITUTION IS PAID IN FULL.

   2. PAY $7,000.00 RESTITUTION TO ABE GREEN.

      
      

4. Respondent failed to make restitution to Mr. Green, and on January 6, 1992, an affidavit of violation of probation was filed and a warrant was issued; however, the warrant was not executed, returned, and filed until September 22, 1994. Ultimately, by April 16, 1995, restitution had been paid, the notice of violation of probation was withdrawn, and Respondent's probation was "terminated successfully."

5. At no time did Respondent inform the Department in writing of having pled guilty to the aforesaid crime.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

7. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). That standard requires that "the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

8. Regardless of the disciplinary action sought to be taken, it may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984). Moreover, in determining whether Respondent violated the provisions of Sections 626.611 and 626.621, Florida Statutes, as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. This

   being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977). Munch v. Department of Professional Regulation, 592 So.

   2d 1136, 1143 (Fla. 1st DCA 1992)("[A]pplying the words used [in Section 626.611(13)] their usual and natural meaning, it is apparent that it is contemplated that an intentional act be a proved before a violation may be found").

9. Here, the Department contends Respondent's conduct violated the provisions of Sections 626.611(1), (7), (13) and

   (14) and 626.621(2), (8), and (11), Florida Statutes.

   
   

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

    . . . The department shall . . . suspend [or] revoke . . . the license . . . of any

    . . . agent . . . 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 . . . 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.

    
    

    * * *

    
    

    1. Willful failure to comply with, or willful violation of, any proper order or

       rule of the department or willful violation of any provision of this code.

    2. 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.

11. Section 626.621, Florida Statutes, provides in pertinent part, as follows:

    The department may, in its discretion,

    . . . suspend,[or] revoke . . . the license or appointment of any . . . agent . . . 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 . . . licensee, or appointee any one or more of the following applicable grounds exist under circumstances for which such . . . suspension [or] revocation . . . is not mandatory under s. 626.611:

    
    

    * * *

    
    

    (2) Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment.

    
    

    * * *

    
    

    (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.

    * * *

    (11) Failure to inform the department in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States 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 the case.

12. Here, the proof demonstrated, with the requisite degree of certainty, that Respondent's conduct directly violated the provisions of Section 626.611(14)2 and Section 626.621(8) and (11), Florida Statutes, as alleged in the Administrative Complaint. Respondent's conduct may also be considered a violation of Sections 626.611(1) and (7) and 626.621(2), Florida Statutes; however, it is not reasonable to conclude that Respondent's conduct violated the provisions of Section 626.611(13), Florida Statutes. Munch v. Department of Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992) ("[A]pplying the words used [in Section 626.611(13)] their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found").

13. Having reached the foregoing conclusions, it remains to resolve the appropriate penalty that should be imposed. Here, the Department's Proposed Recommended Order suggests, as a penalty for the violations, that Respondent's license be suspended for a period of 12 months. That proposal is consistent with Sections 626.611 and 626.621, Florida Statutes; the penalty

guidelines established by Rules 4-231.030(2) and (6), 4-

231.040(1), 4-231.080(14), and 4-231.150(2)(b), Florida

Administrative Code; and the mitigation and aggravation factors established by Rule 4-231.160, Florida Administrative Code. C.f. Williams v. Department of Transportation, 531 So. 2d 994 (Fla.

1st DCA 1988) (Agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees.) Consequently, there being no apparent reason to deviate from the Department's recommendation, its proposed penalty is accepted as appropriate. Walker v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998) (Penalty imposed was within Florida Real Estate Commission's statutory authority and would not be disturbed.)

RECOMMENDATION

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

RECOMMENDED that a final order be rendered which finds Respondent guilty of violating the foregoing provisions of law and that, for such violation, the final order suspend Respondent's license for a period of 12 months.

DONE AND ENTERED this 25th day of May, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1999.

ENDNOTES

1/ The file reflects that the Administrative Complaint was mailed to Respondent at "1500 N. Ocean Blvd., Apt. 205, Pompano Beach, Fl. 33062-3444," and at "c/o New York Life Insurance Co., 100 W. Cypress Creek Road, 5th Floor, Ft. Lauderdale, Fl. 33309-2181." Respondent's Election of Rights, dated October 18, 1998, was signed by Respondent and reflected an address of "4250 Galt Ocean Dr. PHR, Ft. Lauderdale, Fla. 33308." The Initial Order of the Division of Administrative Hearings (DOAH) was mailed to Respondent at the address on his Election of Rights on March 1, 1999, and was returned by the Post Office marked "Moved Left No Address," "Unable to Forward," and "Return to Sender." The Notice of Hearing issued March 30, 1999, as well as the Order Rescheduling Hearing to Video issued April 8, 1999, were mailed to Respondent at all three addresses. The mailing to the Galt Ocean Drive address was returned and marked identically to the return of the Initial Order. The mailing to the "N. Ocean Blvd." address was returned "Not Deliverable as Addressed, Unable to Forward." None of the mailings addressed to Respondent "c/o New York Life Insurance Company" were returned; however, there is no reflection that such was a reliable address for Respondent. Here, it was Respondent's obligation to maintain a current address of record at which he could receive notice regarding matters related to this proceeding, and his failure to do so could reasonable be construed as a lack of interest or as an abandonment of his request for hearing. See e.g., W. J. E. v. Department of Children and Family Services, 24 Fla. L. Weekly D1143a (Fla. 3d DCA 1999).

2/ By Rule 4-211.031(25)(c)9, Florida Administrative Code, the Department has designated the crime of "passing bad checks" as one of moral turpitude.

COPIES FURNISHED:

Robert F. Langford, Jr., Esquire Erhraim Livingston, Esquire Department of Insurance

645-A Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0307

Joseph Anthony Isabella 4250 Galt Ocean Drive Apartment PHR

Fort Lauderdale, Florida 33308

Joseph Anthony Isabella

c/o New York Life Insurance Company

100 West Cypress Creek Road, Fifth Floor Pompano Beach, Florida 33309-2181

Joseph Anthony Isabella 1500 North Ocean Boulevard Apartment 205

Pompano Beach, Florida 33062-3444

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 99-000852

Orders for Case No: 99-000852