STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-2593

)

JUAN FRANCISCO BERENGUER, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on September 28, 2001, with the parties appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dickson E. Kesler, Esquire

Division of Legal Services Department of Insurance

401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128

For Respondent: Howard J. Hochman, Esquire

7695 Southwest 104th Street, Suite 210

Miami, Florida 33156 STATEMENT OF THE ISSUE

Whether there are mitigating circumstances to support the imposition of a lesser penalty as a result of the entry of a plea of nolo contendere.

PRELIMINARY STATEMENT

On April 29, 1999, the Department of Insurance (Department) filed an Administrative Complaint against the Respondent, Juan Francisco Berenguer, that set forth two counts. Count I of the action alleged that the Respondent lacked one or more of the qualifications for licensure, demonstrated a lack of fitness or trustworthiness to engage in the business of insurance, had willfully failed to comply with a proper order or rule of the Department, had pled nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more, and had violated a provision of the insurance code or other law applicable to the business of insurance in the course of dealing under the license. Count II of the Administrative Complaint alleged that the Respondent had failed to inform the Department of a guilty plea within thirty (30) days of such plea.

As to all charges, the Respondent denied the factual

allegations and timely filed an Election of Rights requesting a formal adversarial proceeding. The case was then forwarded to the Division of Administrative Hearings for formal proceedings on June 10, 1999.

The Respondent's Motion to Dismiss Administrative Complaint or for More Definite Statement was denied by order

entered June 18, 1999. Thereafter, the parties prepared for hearing based upon the allegations of the instant case and a subsequent rule challenge case that was presented by the Respondent. The rule challenge (DOAH Case No. 99-3010RX) was subsequently resolved in favor of the Department.

At the hearing of this case, the issue became whether or not the Respondent is entitled to present evidence in mitigation of the alleged violation. By order entered

June 25, 2001, ruling on the Department's request to relinquish jurisdiction was reserved. Implicit in that ruling was the determination that the Respondent would be granted an opportunity to present evidence in support of the mitigation if factual matters surrounding the entry of a plea remained unresolved. When the parties were unable to stipulate to the facts surrounding such mitigation, the matter was rescheduled for final hearing.

The Department has stipulated that Count II of the Administrative Complaint is dismissed. Therefore, the only unresolved allegations pertain to Count I. More specifically, the unresolved allegations deal with the circumstances surrounding the entry of a plea of nolo contendere and whether or not the factual circumstances of the underlying matter constitute a crime of moral turpitude.

The Respondent testified in his own behalf and presented testimony from Philip Carlton, the Respondent's former attorney; Rebecca Berenguer, the Respondent's wife; and Joel Hirschorn, an attorney. The Respondent's exhibits numbered 1-

4 were admitted into evidence. The deposition testimony of William Tharpe was late-filled on November 13, 2001.

The Petitioner presented testimony from Jose Berenguer Mesere, the Respondent's father; and Marta Gomez de Cordova, the Respondent's sister. The Petitioner's exhibits numbered 1 and 2 were also received in evidence.

The transcript of these proceedings was filed on October 15, 2001. The Respondent's Motion for Extension of Time to File a Proposed Recommended Order was granted. Both

parties timely filed proposed orders that have been considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the responsibility of regulating insurance licensure within the State of Florida.

2. At all times material to the allegations of this case, the Respondent was a licensed insurance agent.

3. Prior to February 11, 1997, the Respondent and his father participated in a family insurance agency that was dissolved when the Respondent, his brother, and father were

   unable to agree on business matters. The exact nature of the disagreements are unknown but led to the dissolution of the partnership.

4. At the time the business was dissolved the Respondent's father and his brother remained with one insurance entity and the Respondent's insurance office was split off. The formal, written dissolution of the business was executed by all parties and was drafted at the direction of the Respondent's brother (a lawyer). This dissolution occurred many months in advance of February 11, 1997.

5. Notwithstanding the written agreement, the Respondent's father claimed that the Respondent owed him additional monies based upon an account that the two had procured together. When the Respondent did not agree with his father, a family divide resulted. Those on the father's side of the dispute were directed to refrain from interacting with the Respondent and his family.

6. The Respondent's father immigrated to South Florida from Cuba in 1960. He is a strong-willed individual who determined that the Respondent should submit to the father's authority and opinion regarding the business and family matters.

7. The Respondent did not agree. When the Respondent refused to remit monies to his father (beyond the terms of the

   written dissolution of the company), the father in effect disowned him.

8. To that end the Respondent's father wrote letters to family and friends to let them all know of his opinions regarding the Respondent's inappropriate behavior. The letters were hurtful to the Respondent, embarrassing, and continuing. The father sent several copies of the same letter to various family members as well as the Respondent.

9. Family efforts to cure the rift between the Respondent and his father were unsuccessful. Basically since the Respondent did not acquiesce to his father's wishes, the two were unable to resolve their differences

10. The family divide continued for month after month.

    
    

    The Respondent, his wife, and children were excluded from family functions.

11. As a result of the family tensions both the Respondent and his wife sought counseling. The Respondent attempted to make peace with his father on more than one occasion.

12. Finally, on February 11, 1997, the Respondent's sister arranged a meeting between the Respondent and his father at her house. She knew that the Respondent wanted to resolve the disagreement with his father. She knew that the Respondent did not want to rehash old issues regarding the

    business. She coordinated with both the Respondent and his father a time convenient for them to meet and go forward.

13. When the Respondent arrived at his sister's home the father was already there. The two men were left in a room alone. It was the Respondent's desire to re-establish a rapport with his father. The Respondent has repeatedly stated his love for his father and a desire to be accepted back into the family's good graces.

14. Contrary to what the Respondent had envisioned for the meeting with his father, the elder launched into a tirade of the past and a restatement of his claim that the Respondent owed him. This breach of what the Respondent had understood to be the basis for the meeting (to look only forward) sent him over the emotional edge.

15. When the Respondent rose from his seat to exit his sister's home (he intended to walk out on his father), he stumbled over an ottoman. On impulse he picked up the ottoman (a rattan or cane-type device with a soft pillow top) and struck his father with the pillow portion. He leveled 2 perhaps 3 blows to the father before the shouting from the room led to the return of the Respondent's sister.

16. The Respondent's sister saw the Respondent kicking at the father's leg. The kick(s) resulted in a slight injury that caused the father to temporarily limp.

17. None of the injuries sustained by the father were life-threatening, permanent, or severe.

18. When his sister told him to stop, the Respondent immediately came to his senses and left the home. The outburst lasted only a matter of moments and capped the father's demand that the Respondent resolve the past dispute over money allegedly owed.

19. The next day the father contacted police and filed a formal criminal complaint against the Respondent. Accordingly, the Respondent was charged with aggravated battery and battery on a person 65 years of age or older.

20. The Respondent did not intend to commit great bodily harm to his father. It is unlikely a pillow would inflict great bodily harm to anyone, even a person 65 years of age or older.

21. It is undisputed that the Respondent and his father were emotional and verbally confrontational regarding the past business dealings.

22. The Respondent was warned by his attorney and the judge presiding over the criminal case that incarceration could be expected if a conviction resulted.

23. The Respondent is the father and sole support of three young children. At the time of the criminal charges the children were 6, 3 and 2 years of age.

24. The Respondent's wife did not want the Respondent to face the possibility of jail time in the event the jury found the Respondent guilty.

25. The state offered the Respondent the option of a plea and guaranteed no jail time. Reluctantly, the Respondent accepted the plea. On October 26, 1998, the Respondent plead nolo contendere to two counts of aggravated battery and one count of battery on a person 65 years of age or older.

26. As a result, the Respondent had no jail time, was able to continue to support his family, and was placed on probation.

27. The Respondent successfully completed all terms of his probation, including the completion of an anger management class, and was discharged from probation by the court early.

28. The Respondent had no prior criminal history and has had no subsequent incident regarding the dispute with his father.

29. The father's insistence on disowning the Respondent over the past alleged business matters has continued.

30. The Respondent has demonstrated sincere and continuing remorse over the incident that occurred with his father. He has continued to express a desire to make peace within his family. And he has continued to support his wife and young children.

31. The imposition of a penalty in this cause that would interrupt the Respondent's ability to continue in business would severely impact the family's financial stability.

32. The Respondent has already incurred the financial expenses of defending the criminal and administrative proceedings. He has been embarrassed with family and friends and continues to be ostracized by his father. His friends have received letters from the father announcing that the Respondent, his wife, and his children "are all dead."

33. Under the facts and circumstances of this case the imposition of a suspension or revocation of the Respondent's insurance license would serve no public purpose.

34. The Respondent is fit and trustworthy to engage in the business of insurance.

35. The Respondent has not willfully or intentionally violated any provision of the insurance code.

36. The Respondent is not a danger to the insurance public and can successfully and appropriately conduct the business of insurance within this state.

37. The alleged criminal incident which was the subject matter of the underlying nolo contendere plea was unique, spontaneous, and unlikely to reoccur.

38. The alleged criminal activity does not demonstrate under the facts of this case a debase nature nor constitute an

    act of moral turpitude. The Respondent's behavior was provoked by the father's unrelenting demands. The conduct was not related to the insurance license and did not relate to activities involving the Respondent's insurance license.

    CONCLUSIONS OF LAW

    
    

39. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

40. It is concluded that the Respondent pled nolo contendere to a crime punishable by imprisonment of 1 year or more. He was not, however, "convicted" of a crime as adjudication was withheld. He successfully completed the terms of his probation and has thoroughly and adequately explained the underlying circumstances of the incident giving rise to the criminal charges.

41. The emotional state of the Respondent at the time of the incident, the pressures to accept a plea, as well as his continuing concerns regarding the support of his family must be considered. The conduct complained of in this case is not likely to reoccur. The public is not at risk. The imposition of a suspension of Respondent's license would serve no beneficial purpose to protect the public or punish this Respondent.

42. Under the circumstances of this case, the Department should accept the mitigation as presented by the Respondent and seek an alternative penalty for the technical violation established by this record.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order imposing an administrative fine against the Respondent in an amount sufficient to cover the Department's expenses of prosecution of this case.

DONE AND ENTERED this 2nd day of January, 2002, in Tallahassee, Leon County, Florida.

______________________________

J. D. PARRISH 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 2nd day of January, 2002.

COPIES FURNISHED:

Dickson E. Kesler, Esquire Division of Legal Services Department of Insurance

401 Northwest 2nd Avenue, Suite N-321 Miami, Florida 33128

Howard J. Hochman, Esquire

7695 Southwest 104th Street, Suite 210

Miami, Florida 33156

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

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: 99-002593

Orders for Case No: 99-002593