ROY T. GELBER,
vs.
Respondent.
) Case No. 02-2206
Pursuant to Notice, this cause came on for hearing before Diane Cleavinger, Administrative Law Judge for the Division of Administrative Hearings, on August 27, 2002, in Jacksonville, Florida.
For Petitioner: John R. Forbes, Esquire
For Respondent: Matthew A. Nowels, Esquire
Whether Petitioner is entitled to a legal expense insurance agent's license.
On October 17, 2001, Petitioner submitted an application for licensure as a legal expense insurance agent to the Department of Insurance (Department). On December 20, 2001, the Department denied Petitioner's application for licensure based upon his lack of fitness and trustworthiness because on April 9, 1992, Petitioner pled guilty to conspiracy to engage in racketeering in Federal District Court for the Southern District of Florida for behavior that occurred while he was a sitting circuit court judge. Petitioner disputed the Department's denial and requested a hearing. The Department timely received Petitioner's Election of Rights form which requested an informal proceeding pursuant to Section 120.57(2), Florida Statutes. On May 23, 2002, Petitioner filed a Notice of Amending Election of Proceedings in which he requested the hearing be transferred to the Division of Administrative Hearings (DOAH) and be held pursuant to Section 120.57(1), Florida Statutes, in order to dispute the factual allegations of the Department. The matter was referred to DOAH.
At the hearing, Petitioner testified in his own behalf and offered two exhibits into evidence. Respondent did not call any witnesses, but offered eight exhibits into evidence.
After the hearing, Petitioner filed a Proposed Recommended Order on September 24, 2002, and Respondent filed a Proposed Recommended Order on September 23, 2002.
On October 17, 2001, Petitioner applied for licensure as a legal expense insurance agent.
On December 20, 2001, the Department denied Petitioner's application for licensure based upon his unfitness and untrustworthiness due to Petitioner's guilty plea to conspiracy to engage in racketeering, for conduct which occurred while he was a sitting circuit court judge and which was related to his judicial duties. Petitioner had fully disclosed the plea and the details of the crime in his application to the Department.
Petitioner received a juris doctorate degree in 1975 and a master's in criminal law in 1977.
After being admitted to the Florida Bar, Petitioner worked as an assistant state attorney, as an associate with a private firm, as a practitioner in his own law firm, and finally was elected to a judgeship at the county court level. Petitioner served two years as a county court judge. In 1988, Petitioner was elected to the circuit court.
As such, Petitioner was required to read, know, and abide by the Code of Judicial Conduct. He swore to uphold the
Code of Judicial Conduct and voluntarily assumed an office that encompassed the highest level of responsibility and fiduciary duty to the public found in any public office in the United States of America.
Petitioner was assigned to the criminal law division of the circuit court.
Petitioner knowingly took bribes while he was a sitting circuit court judge. Because Petitioner was in debt, he approached an attorney named Raymond Takiff for a loan. Petitioner admitted that Mr. Takiff agreed to give him money in exchange for Petitioner's helping him out some time in the future. At that time, Mr. Takiff was being used by the Federal Bureau of Investigations (FBI) to set up an undercover bribery investigation.
In return for Mr. Takiff's financial help, Petitioner ruled in favor of Mr. Takiff and ordered the return of some property that was the subject matter of one of the false criminal/forfeiture cases used by the FBI in their investigation.
Petitioner knowingly helped Mr. Takiff establish a group of judges who would also take bribes. Petitioner stated that he introduced Mr. Takiff to ten other judges and that these instructions included Petitioner's saying that Mr. Takiff was trustworthy, that he could make it worth their while, and
convincing the judges that Mr. Takiff was not working for the government.
Petitioner continued to be involved in the on-going scheme to bribe multiple judges. One of the judges who received money from Mr. Takiff proceeded to send a portion of this bribe back to Respondent.
Petitioner ultimately received $88,000.00 from
Mr. Takiff in exchange for actions such as ruling for Mr. Takiff in one case and for knowingly establishing Mr. Takiff with other judges in an attempt to perpetuate the bribery scheme.
Petitioner also accepted money from friends in exchange for setting them up with some appointments.
Eventually, Petitioner was caught and arrested by the FBI. Petitioner agreed to help the FBI in the on-going investigation and multiple trials stemming from the FBI sting operation.
As a result of the aforementioned acts on April 9, 1992, Petitioner pled guilty to conspiracy to engage in racketeering in Federal District Court in the Southern District of Florida and was sentenced to 12 years and seven months in federal prison.
Petitioner's actions violated the fiduciary duty he had voluntarily assumed upon becoming a circuit court judge, and by introducing other judges to Mr. Takiff, he was promoting and
causing a continuous and increasing breach of the judiciary's fiduciary duty to the public. The offense for which Petitioner was convicted did not have any relation either directly or indirectly upon the insurance business.
Petitioner was disbarred on September 26, 1991. While in prison, Petitioner continued to live up to his agreement to help the FBI in the prosecution of criminal cases stemming from the sting operation, even though he did not have to, and was in grave danger because of his continued help. Petitioner had numerous threats made on his life, including contracts to kill him. Petitioner was nearly beaten to death in the attempted execution of one of the contracts on his life. He continued to help the FBI and felt it was one way to make up for his absolute breach of conscience and faith in committing the crime for which he was imprisoned.
Subsequent to an unusual Rule 35 hearing held on
June 9, 1995, Petitioner's sentence was shortened to five years' incarceration followed by three years' supervised release. The Rule 35 hearing was unusual in that the FBI agents and prosecutors were strongly in favor of Petitioner's release from prison and testified in his favor.
Petitioner has completed his supervision and has since tried to pick up the pieces of his life. As a result of his conduct, Petitioner lost everything--family, friends, reputation
and property. He clearly has learned the value of integrity and trustworthiness. He helps in various community organizations and serves as a mentor to others who might follow a less than trustworthy life.
Petitioner had his civil rights, except the specific authority to possess or own a firearm, restored by the Office of Executive Clemency on August 31, 2002.
Petitioner did not lie, mislead, or attempt to conceal in any way his past felony conviction.
Petitioner has shown remarkable achievements in rehabilitating himself. Multiple witnesses testified as to his many deeds and rehabilitative achievements in ameliorating his admitted misdeeds in the face of actual death threats and brutal physical attacks resulting in severe and permanent bodily injury. Given this rehabilitation, Petitioner is entitled to be licensed as a legal expense insurance agent.
CONCLUSIONS OF LAW
The Division of Administrative hearing has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Department has jurisdiction over Petitioner's application for a legal expense insurance agent license. Chapter 642, Florida Statutes.
Prior to a license being issued, it is merely a privilege. Once issued, it is a property right. See Wilson v.
Pest Control Commission of Florida, 199 So. 2d 777, 779 (Fla. 4th DCA 1967).
As an applicant, Petitioner bears the burden of proving entitlement to a license. Florida Department of
Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). He bears this burden at each and every step of the licensure proceedings. Department of Banking and Finance v.
Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996). Petitioner must show by a preponderance of the evidence that he meets all of the relevant statutory criteria to satisfy this burden. Id.
The Department has particularly broad discretion in determining the fitness of applicants. Osborne, 670 So. 2d at 934; See also Astral Liquors, Inc. v. Department of Business and Professional Regulation, 463 So. 2d 1230, 1132 (Fla. 1985)(stating that "discretionary authority is necessary for agencies involved in the issuance of licenses and the determination of fitness of applicants for licenses" and that "this discretion is particularly necessary where an agency regulates 'occupations which are practiced by privilege rather than right and which are potentially injurious to the public welfare.'")
The Department, under Section 626.6115, Florida Statutes, provides:
Grounds for compulsory refusal, suspension, or revocation of insurance agency
license.--The department shall deny, suspend, revoke, or refuse to continue the license of any insurance agency if it finds, as to any insurance agency or as to any majority owner, partner, manager, director, officer, or other person who manages or controls such agency, that either one or both of the following applicable grounds exist:
Lack by the agency of one or more of the qualifications for the license as specified in this code.
Material misstatement, misrepresentation, or fraud in obtaining the license or in attempting to obtain the license.
The Department, under Section 626.621, Florida Statutes, provides:
Grounds for discretionary refusal, suspension, or revocation of agent's, adjuster's, customer representative's, service representative's, or managing general agent's license or
appointment.--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, adjuster, customer representative, service representative, or managing general 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 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:
Any cause for which issuance of the license or appointment could have been refused had it then existed and been known to the department.
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.
Violation of any lawful order or rule of the department.
Failure or refusal, upon demand, to pay over to any insurer he or she represents or has represented any money coming into his or her hands belonging to the insurer.
Violation of the provision against twisting, as defined in s. 626.9541(1)(l).
In the conduct of business under the license or appointment, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part IX of this chapter, or having otherwise shown himself or herself to be a source of injury or loss to the public or detrimental to the public interest.
Willful overinsurance of any property or health insurance risk.
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.
If a life agent, violation of the code of ethics.
Cheating on an examination required for licensure or violating test center or examination procedures published orally, in writing, or electronically at the test site by authorized representatives of the examination program administrator. Communication of test center and examination procedures must be clearly established and documented.
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.
Knowingly aiding, assisting, procuring, advising, or abetting any person in the violation of or to violate a provision of the insurance code or any order or rule of the department.
An action which violates one's duties in dealing with members of society may be classified as a crime of moral turpitude. See Pearl v. Florida Board of Real Estate, 394
So. 2d 189, 191 (Fla. 3rd DCA 1981). Undoubtedly, conspiracy to engage in racketeering involves violating one's duties in dealings with a member of society and is a crime of moral turpitude. More particularly, a judge taking a bribe violates that judge's duty to the public and represents a crime of moral turpitude.
Section 642.041, Florida Statutes, states in pertinent part:
642.041 Grounds for compulsory refusal, suspension, or revocation of license or appointment of contracting sales representatives.--The department shall, pursuant to the insurance code, deny, suspend, revoke, or refuse to renew or continue the license or appointment of any sales representative or the license or appointment of any general lines agent if it finds that, as to the sales representative or general lines agent, any one or more of the following applicable grounds exist:
Material misstatement, misrepresentation, or fraud in obtaining or attempting to obtain a license or appointment.
The license or appointment is willfully used, or to be used, to circumvent any of the requirements or prohibitions of
ss. 642.011-642.049.
Willful misrepresentation of any legal expense contract or willful deception with regard to any such contract, performed either in person or by any form of dissemination of information or advertising.
In the adjustment of claims, material misrepresentation to a contract holder or other interested party of the terms and coverage of a contract, with the intent and for the purpose of settling such claim on less favorable terms than those provided in and contemplated by the contract.
Demonstrated lack of fitness or trustworthiness to engage in the business of legal expense insurance.
Demonstrated lack of adequate knowledge and technical competence to engage in the
transactions authorized by the license or appointment.
Fraudulent or dishonest practices in the conduct of business under the license or appointment.
Misappropriation, conversion, or unlawful withholding of moneys belonging to an insurer or other person and received in the conduct of business under the license or appointment.
Unlawfully rebating, or attempting to unlawfully rebate, or unlawfully dividing, or offering to divide, his or her commission with another.
Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of ss. 642.011-642.049.
Being found guilty of, or pleading 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.
Section 642.043, Florida Statutes, states in pertinent part:
642.043 Grounds for discretionary refusal, suspension, or revocation of license or appointment of sales representatives.--The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license or appointment of any sales representative if it finds that, as to the representative, 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. 642.041:
Any cause for which granting of the license or appointment could have been refused had it been known to the department at the time of application.
Violation of any provision of ss. 642.011-642.049, or of any other law applicable to the business of legal expense insurance in the course of dealings under the license or appointment.
Violation of any lawful order or rule of the department.
Failure or refusal to pay over, upon demand, to any insurer he or she represents, or has represented, any money which belongs to the insurer.
In the conduct of business under the license or appointment, having engaged in unfair methods of competition or in unfair or deceptive acts or practices, as such methods, acts, or practices are defined under part IX of chapter 626, or having otherwise shown himself or herself to be a source of injury or loss to the public or detrimental to the public interest.
Having been found guilty of, or having pled 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, whether or not a judgment of conviction has been entered.
Section 112.011(1)(b), Florida Statutes, states in pertinent part:
112.011 Felons; removal of disqualifications for employment, exceptions.--
* * *
(b) Except as provided in s. 775.16, a person whose civil rights have been restored shall not be disqualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or certificate is required to be issued by the state, any of its agencies or political subdivisions, or any municipality solely because of a prior conviction for a crime. However, a person whose civil rights have been restored may be denied a license, permit, or certification to pursue, practice, or engage in an occupation, trade, vocation, profession, or business by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profession, or business for which the license, permit, or certificate is sought.
When a person who has been convicted of a crime has his or her civil rights restored, Section 112.011(1)(b), Florida Statutes, acts to remove the absolute bar to licensure found in a statute such as Section 642.041(11), Florida Statutes. Once the absolute bar is removed by Section 112.011, Florida Statutes, the Department must examine an applicant in an attempt to determine, in the Department's discretion, if that applicant is fit and trustworthy as required by Section 642.041(5), Florida Statutes. Section 112.011, Florida Statutes, does not prevent the Department from taking into account a conviction or
plea agreement, in addition to relying upon the underlying behavior that led to a conviction or plea agreement in determining an applicants fitness and trustworthiness.
Padgett v. The Estate of Gilbert, 676 So. 2d 440, 444 (Fla. 1st DCA 1996); See also Sandlin v. Criminal Justice Standards and Training, 531 So. 2d 1344 (Fla. 1988); See also Calhoun v.
Department of Health and Rehabilitative Services, 500 So. 2d 674 (Fla. 3rd DCA 1987).
In this case, Petitioner did meet his burden to show entitlement to a license. Petitioner testified concerning his cooperation with the FBI and Unites States Attorney's Office. Even though Petitioner's conduct is of the most repugnant and serious nature, given the time that has passed, the exemplary manner in which Petitioner has conducted his life since his crime, the fact that he now understands that integrity and honesty should not be disregarded, and the grave danger he has endured to maintain his bargain with the FBI, Petitioner has rehabilitated himself.
That a final order be entered granting Petitioner's application for licensure as a legal expense agent in the State of Florida.
DONE AND ENTERED this 2nd day of December, 2002, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2002.
John R. Forbes, Esquire
Matthew A. Nowels, Esquire Department of Insurance
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.
