STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. O7-4541

)

HUGH MAXWELL ESTESS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 29, 2008, by video teleconference, with the parties appearing in Fort Lauderdale, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: William Gautier Kitchen, Esquire

Department of Financial Services Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Hugh Maxwell Estess, pro se

1926 1/2 Tyler Street Post Office Box 2428 Hollywood, Florida 33020

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in the Administrative Complaint dated August 30, 2007, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In a one-count Administrative Complaint dated August 30, 2007, the Department of Financial Services ("Department") charged that Hugh Maxwell Estess was unfit to hold a license as an insurance agent in Florida. The charge was based on allegations that Mr. Estess was instrumental in the planning, preparation, and conspiracy to murder the former wife of a client and former co-worker. Mr. Estess timely requested a formal administrative hearing, and the Department transmitted the matter to the Division of Administrative Hearings for the assignment of an administrative law judge. Pursuant to notice, the final hearing was held on February 29, 2008.

At the hearing, the Department presented the testimony of Mr. Estess, and Petitioner's Exhibits 1 through 8 were offered and received into evidence. Mr. Estess testified in his own behalf but did not offer any exhibits.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on March 12, 2008, and the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department is the state agency that is authorized to take administrative action against persons holding licenses as insurance agents in the State of Florida and to impose discipline on the licensees when warranted. See §§ 626.016 and 626.611, Fla. Stat. (2007).1

2. At the times material to this proceeding, Mr. Estess was licensed by the State of Florida as a life insurance agent, a life and health insurance agent, a general lines insurance agent, and a health insurance agent. Mr. Estess held license number A079117.

3. At the times material to this proceeding, Mr. Estess was the director of Estess Insurance, located in Hollywood, Florida.

4. Mr. Estess has been licensed as an insurance agent in Florida for 34 years and has never had any disciplinary action taken against him.

5. In or about August 1997, Mr. Estess was approached by Ronald Samuels, a client of his insurance business and a former

   co-worker. Mr. Samuels offered Mr. Estess $5,000.00 to kill Mr. Samuels' former wife.

6. Mr. Estess accepted the money and agreed to kill Mr. Samuels' former wife. Even though he took the money,

   Mr. Estess did not intend to commit the murder. He took the money because he was heavily involved in drugs and alcohol and needed money to support his drug habit.

7. After taking the money from Mr. Samuels, Mr. Estess introduced Mr. Samuels to a person who was known by the street name "T" as a person who could help him accomplish the murder of his former wife.

8. The first meeting between Mr. Samuels and "T" took place at Mr. Estess's condominium, and Mr. Samuels told

   Mr. Estess that he paid "T" $5,000.00 to murder Mr. Samuels' former wife.

9. Mr. Estess drove "T" to Boca Raton, Florida, and pointed out the location where Mr. Samuels's former wife worked; this was the location at which the murder was to take place.

   "T" asked Mr. Estess about the kind of car Mr. Samuels's former wife drove, and Mr. Estess gave "T" this information.

10. Mr. Estess also introduced Mr. Samuels to Eddie Stafford, known by the street name of "Slim," as a person who could accomplish the murder of Mr. Samuels's former wife.

11. Eddie Stafford and a man named Ryan Runyon attempted to murder Mr. Samuels's former wife by shooting her on or about October 14, 1997. She was wounded, but the wound was not fatal. Rather, it rendered her a quadriplegic.

12. Mr. Estess's automobile was used in the attempted murder. Mr. Estess had taken it to be detailed on the day of the attempted murder, and Mr. Samuels apparently took the car and gave it to Eddie Stafford. Mr. Estess was angry because Eddie Stafford did not change the license plates on his car when he drove it to the location where they attempted to murder

    Mr. Samuels's former wife.

    
    

13. On the night of the day the attempted murder took place, Mr. Samuels went to Mr. Estess's condominium. Mr. Estess told him to stay away.

14. Mr. Samuels called Mr. Estess's office the day after the attempted murder and told Mr. Estess that he was very angry because his former wife had not been killed.

15. Between the time Mr. Estess took the $5,000.00 from Mr. Samuels and the time the attempt to murder Mr. Samuels's former wife occurred, Mr. Samuels telephoned Mr. Estess "all the time" to find out when the murder would take place.

16. Mr. Estess left town two days after the attempted murder and entered a drug rehabilitation program. He was instrumental in effecting the Mr. Samuels's arrest in Mexico,

    and he was granted immunity from prosecution and ultimately testified against Mr. Samuels in Palm Beach County, Florida.

17. Even though Mr. Estess may have taken the $5,000.00 from Mr. Samuels with no intention of committing the murder of Mr. Samuels's former wife, he introduced Mr. Samuels to persons he thought could accomplish the murder, and he was involved in planning the murder with "T". Eddie Stafford, one of the men Mr. Estess introduced to Mr. Samuels, was an accomplice to the attempted murder and was present when Mr. Samuels' former wife was shot. Mr. Estess also must have given Mr. Samuels reason to believe he was involved in planning the murder because

    Mr. Samuels regularly contacted Mr. Estess to find out when the murder was to take place.

18. Regardless of his intention not to murder

    
    

    Mr. Samuels's former wife, Mr. Estess did participate in the attempted murder because he was instrumental in planning and making preparations for the murder. Mr. Estess's participation in such a vile act at the request of a client of his insurance business renders Mr. Estess unfit to hold a license as an insurance agent.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of

    the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

20. In its Administrative Complaint, the Department seeks to revoke Mr. Estess's insurance agent's license. Therefore, the Department has the burden of proving by clear and convincing evidence that Mr. Estess committed the violations alleged in the Administrative Complaint. Department of Banking & Finance, Division of Securities & Investor Protection v. Osbourne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

21. As the Florida Supreme Court recently explained, clear and convincing evidence is the proper standard in license revocation proceedings because they are penal in nature and implicate significant property rights. Osbourne Stern & Co., 670 So. 2d at 935; Walker v. Florida Department of Business & Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

22. Section 626.611(7), Florida Statutes, gives the Department the power to revoke the license of an insurance agent if that agent has "[d]emonstrated [a] lack of fitness or trustworthiness to engage in the business of insurance." Based on the findings of fact herein, the Department has proven by clear and convincing evidence that Mr. Estess lacks the fitness and trustworthiness to hold a license as an insurance agent.

23. Consideration has been given to Mr. Estess's contentions that his actions with respect to the attempted murder of Mr. Samuels's former wife were unrelated to the conduct of his business as an insurance agent and that his ability to engage in business as an insurance agent has not been impaired by the part he played in facilitating the attempt to murder Mr. Samuels's former wife. Consideration has also been given to the facts that Mr. Estess is no longer abusing alcohol and drugs, that he testified against Mr. Samuels in the trial for the attempted murder, and that he has never been the subject of a disciplinary action against his insurance agent's license. Nonetheless, the actions Mr. Estess took in facilitating the attempt to murder Mr. Samuels' former wife are so serious that revocation of Mr. Estess's insurance agent's license is the only appropriate penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Hugh Maxwell Estess has demonstrated a lack of unfitness and trustworthiness to engage in the business of insurance and revoking Mr. Estess's insurance agent's license pursuant to Section 626,611(7), Florida Statutes.

DONE AND ENTERED this 1st day of May, 2008, in Tallahassee, Leon County, Florida.

PATRICIA M. HART

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 1st day of May, 2008.

ENDNOTE

1/ References to the Florida Statutes herein are to the 2007 edition unless otherwise indicated.

COPIES FURNISHED:

William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Hugh Maxwell Estess 1926 1/2 Tyler Street Post Office Box 2428

Hollywood, Florida 33020

Honorable Alex Sink Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 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: 07-004541PL

Orders for Case No: 07-004541PL