The Issue Whether Respondent's licenses as a health insurance agent, a life and health insurance agent, and a life including variable annuity agent should be suspended or revoked based on the allegations set forth in the Department's Administrative Complaint.
Findings Of Fact Respondent Gary L. Koniz (Respondent) is currently licensed by the Department as a health insurance (2-40) agent, a life and health insurance (2-18) agent, and a life including variable annuity (2-14) agent. On August 17, 1988, Respondent plead guilty to operating a vehicle while under the influence of alcohol (DUI), a felony, in the County Court in and for Ulster County, New York, Case No. 88-57. Respondent was sentenced to five years' probation, license revocation, and payment of a fine. On or about September 30, 2000, Respondent submitted an application to the Department for licensure as health agent, a life and health agent, and a life including variable annuity agent, on which he was asked the following two questions: Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere to a crime punishable by imprisonment of one year or more under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered? Respondent answered each of the aforementioned questions, "no." On the application dated September 30, 2000, Respondent signed and swore to the statement that read: Under penalty of perjury, I declare that I have read the foregoing application for licensure, related information and related attachments, and that the facts as stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Code and may result in the denial of my application and/or the revocation of my insurance license. Respondent testified at hearing. Respondent made a court appearance at which he entered a plea as part of a plea bargain to a misdemeanor. He did not comply with one of the conditions and the matter was called back up before the court. At this second hearing, the court asked how he plead. Respondent indicated he had already plead. The court took this response as a plea to the DUI felony and imposed the aforementioned penalties. Respondent did not knowingly answer the questions on the application for licensure incorrectly.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order finding Respondent Gary L. Koniz guilty of violating Sections 626.611 and 626.621, Florida Statutes, and suspending his licensure as a health insurance agent, a life and health insurance agent, and a life including variable annuity agent for a period of up to 18 months. DONE AND ENTERED this 23rd day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 23rd day of April, 2002. COPIES FURNISHED: Gary L. Koniz 9480 Princeton Square Boulevard, South Apartment 815 Jacksonville, Florida 32256 Matthew A. Nowels, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 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
Findings Of Fact On October 19, 1982, the Petitioner Mikal Talib Hamin applied for licensure as a general lines insurance agent. The Respondent Department of Insurance denied the Petitioner's application on March 29, 1983, due to his failure to inform the Department on other applications for insurance licensure that he had been charged with or convicted of a felony. This denial was based on the Petitioner's previous applications for licensure as an ordinary life insurance and health insurance agent in which the Petitioner informed the Department that he had neither been charged with nor convicted of a felony. On March 3, 1973, the Petitioner, then known as Michael Thomas Hanks was convicted of robbery in the criminal court of record, Dade County, Florida, and sentenced to 15 years in prison. The Petitioner was released from prison on October 25, 1977 and was on parole supervision until October 25, 1979. When the Petitioner was convicted, he was 17 years old. Since his release from prison, the Petitioner has obtained his GED, been steadily employed and has encountered no other problems with the criminal justice system. The Petitioner is married and is three semesters away from obtaining a college degree in Business Administration. Due to the Petitioner's positive adjustment to parole, Martin Carroll, the Petitioner's parole officer recommended that the Parole Commission terminate the Petitioner's parole ahead of schedule. The Parole Commission granted early termination and the Petitioner's civil rights were restored effective March 22, 1979, by the Office of Executive Clemency. On January 24, 1982 and March 26, 1982, the Petitioner applied for licensure as a disability and ordinary life agent, respectively. Both of these applications asked the Petitioner whether he had been charged with or convicted of a crime and on both applications he stated "no". The Petitioner subsequently sat for these exams, passed the exams and was licensed as a disability and ordinary life agent. In completing these applications, the Petitioner consulted Jeff Dickerson, an insurance agent for whom be worked at the time, who advised the Petitioner that he need not disclose his previous conviction because of the length of time that had passed and the fact the Petitioner was only 17 when the conviction occurred. The Petitioner followed this advice and did not disclose his past felony conviction on his applications. Subsequently, the Petitioner went to work for another insurance agent, Hakim Shaeed, and applied for licensure as a general lines agent. In completing this application, the Petitioner consulted Shaeed, who informed him that the prior felony conviction should be disclosed to the Department. The Petitioner informed the Department of the misstatement on his prior applications, pending application and his felony conviction by letter to Joe Crutchfield, dated March 21, 1983. On November 15, 1978, the Petitioner changed his name from Michael Thomas Hanks, the name under which he was convicted, to Mikal Talib Hamin. The Petitioner submitted letters from Nashid Sabir, Esquire, Lorrett Duffy, Personnel Administrator, Broward Cablevision, Alphonse Wright, Coordinator Drug Abuse and Prevention Program, Liberty City Youth, Hakim Fakir, P.U.L.S.E. Coordinator, and B. W. Smith, an insurance agent, attesting to his good character and reputation in the community.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint in Case No. 83-1435 dated July 13, 1983, be dismissed. Mikal Talib Hamin be allowed to sit for examination as a general lines agent. DONE and ENTERED this 29th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th this day of September, 1983.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, as amended at hearing, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a 46-year-old man who holds the following Florida insurance licenses: a 2-16 life agent license (with an original issue date of July 25, 1987); a 2-18 life and health agent license (with an original license date of July 25, 1987); and a 2-20 general lines property and casualty agent license (with an original issue date of October 2, 1986). At no time during the period that he has held these licenses has he ever been disciplined by the Department or its predecessor. For the past 20 years, Respondent has worked as an agent for State Farm. On or about November 3, 2006, a criminal information was filed against Respondent in Palm Beach County (Florida) Circuit Court Case No. 06-CF013354AMB. The information alleged that Respondent, "on or between September 22, 2006, and October 8, 2006, . . . did willfully, maliciously, and repeatedly follow, harass or cyberstalk AIMEE NADELHOFFER and did make a credible threat, with the intent to place AIMEE NADELHOFFER or AIMEE NADELHOFFER'S child, sibling, spouse, parent or dependent in reasonable fear of death or bodily injury, contrary to Florida Statute 784.048(3) [Florida Statutes]." Aimee Nadelhoffer, the person named as the alleged victim in the information, is Respondent's former wife. She and Respondent are the parents of a three-year-old child for whom Respondent is paying child support. On November 30, 2006, pursuant to a plea agreement, Respondent (who had no previous criminal record) pled guilty to the crime alleged in the criminal information filed against him. At the time he entered into the plea agreement, Respondent was in jail awaiting trial and concerned that he would "lose [his] State Farm agency" if he remained incarcerated until his trial was held. Adjudication of guilt was withheld,1 and Respondent was placed on probation for three years, with conditions that included: not "associat[ing], communicat[ing], or hav[ing] any contact [except for contact by e-mail in reference to child custody issues] with [the] victim," Aimee Nadelhoffer, who had suffered substantial emotional distress as a result of Respondent's admitted2 criminal wrongdoing,3 nor "com[ing] within 200 f[eet]t of her residence or place of employment"; undergoing a "psychological evaluation" and completing any "recommended treatment"; and submitting to random drug testing at his own expense. It was furthered ordered that Respondent could "request early termination of probation after 2 years if [he] successfully complete[d] all conditions and [there were] no violations." In computing Respondent's "lowest permissible sentence" pursuant to Section 921.0024, Florida Statutes,4 the sentencing judge assessed no additional points in any of the following categories set forth on the Criminal Punishment Code Worksheet: "additional offenses," "victim injury," "prior record," "legal status violation," "community sanction violation," "firearm/semi-automatic or machine gun," "prior serious felony," and "enhancements." For his commission of the "primary offense" he was assessed 36 points.5 On September 19, 2007, in accordance with a request made by Aimee Nadelhoffer, the conditions of Respondent's probation were "modified to provide [that Respondent] may have 'No Violent Contact' [as opposed to no contact of any kind] with Aimee Nadelhoffer." Respondent presently has contact with Aimee Nadelhoffer, dealing with her cooperatively concerning "issues associated with [child] visitation and the like." Since the entry of his guilty plea, Respondent has not spent any time in jail. Respondent is still on probation. No proceedings have been brought seeking to revoke his probation. In November 2006, two other criminal informations were filed against Respondent. One was filed in Palm Beach County Court on November 7, 2006, and charged, in its two counts, that Respondent, on October 19, 2006, did: "willfully, after having been served with an Injunction for Protection Against Domestic Violence issued pursuant to section 714.30 . . . , knowingly and intentionally come within 100 feet of AIMEE NADELHOFFER's motor vehicle, contrary to Florida Statute 741.31(4)(a)6." (Count 1); and "leav[e] the scene of a crash involving damage, in violation of Section 316.061, Florida Statutes" (Count 2). The other criminal information was filed in Palm Beach County Court on November 17, 2006, and charged Respondent with two counts of violating an injunction for protection (of Aimee Nadelhoffer) against domestic violence, in violation of Section 741.31(4)(a)5., Florida Statutes.6 After the Department learned of Respondent's guilty plea in Palm Beach County (Florida) Circuit Court Case No. 06- CF013354AMB, it filed the two-count Administrative Complaint against Respondent described in the Preliminary Statement of this Recommended Order. At Respondent's request, the matter was subsequently referred to DOAH for hearing. During the discovery phase of the proceeding, Respondent, through his attorney, took the deposition of Kathy Spencer, whom the Department had designated under Fla. R. Civ. P. 1.310 as its representative for purposes of "explain[ing] the Department's decision as to what disciplinary action should be imposed on [Respondent] for the charges set forth in the Administrative Complaint [in this case]." In her deposition testimony, Ms. Spencer clarified what the Department had stated in the Administrative Complaint regarding the disciplinary action it intended to take against Respondent. She testified that the Department was seeking to impose a three-month suspension for the violations alleged in Count I and an additional three-month suspension for the wrongdoing alleged in Count II. She further testified that, with respect to Count I, it was the Department's position that the crime to which Respondent had pled guilty in Palm Beach County (Florida) Circuit Court Case No. 06-CF013354AMB was a "felony involving moral turpitude."7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order finding Respondent guilty of the violations alleged in Count I of the Administrative Complaint and suspending his licenses for three months for committing these violations. DONE AND ENTERED this 4th day of February, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of February, 2008.
Findings Of Fact Petitioner applied to the Respondent for licensure as a general lines, and a life and health insurance agent on or about February 8, 1990. By letter dated May 17, 1990, the Petitioner was informed that his applications for examination were denied based upon a finding that he lacked fitness or trustworthiness to engage in the insurance business. Petitioner timely requested a hearing to determine if he is qualified to take these licensure examinations. On or about January 3, 1986, the Petitioner entered a plea of guilty to two counts in a superseding indictment filed in Case Number 84-00603(S)-05 in the United States District Court for the Eastern District of New York. Based upon this plea, the Petitioner was found guilty of conspiracy to defraud an insurance company and filing a false insurance claim, each count being a felony involving moral turpitude. He was sentenced to three years probation, and ordered to pay a fine of $10,000. Special conditions of probation included prohibiting the Petitioner from engaging in the insurance business, and requiring that he make restitution to the Hartford Insurance Group in the sum of $1,778.08. On or about August 15, 1986, the Insurance Department of the State of New York revoked the Petitioner's insurance broker's license, based upon his felony conviction as set forth above. The Petitioner successfully completed his period of probation in New York on January 2, 1989, including payment of the $10,000 fine and restitution in the amount of $1,778.08. On or about September 22, 1989, the Board of Parole of the State of New York issued a Certificate of Relief from Disabilities to the Petitioner which removes bars to employment and licensure automatically imposed by the laws of the State of New York as a result of his conviction. However, this Certificate specifies that it shall not prevent any administrative or licensing body or board from relying upon this conviction as a basis for the exercise of its discretionary power to refuse to issue a license. The Petitioner failed to disclose on his applications for examination that his insurance broker's license in New York had been revoked. In fact, he specifically answered "no" to the question on these applications concerning whether his license had ever been revoked in another state. The Petitioner did disclose on his applications for examination that he had been charged with a felony in New York, and indicated that he had entered a plea to a single charge. He stated on his applications, however, that he had not been convicted by any court. The Petitioner claims that he did not know that his New York license had been revoked. Rather, he testified that he had sought to surrender his license in New York after his conviction in 1986, and thought that the administrative action had been concluded with his license surrender. He claims he never was notified of any hearing, and did not receive a copy of the order of revocation issued by the Insurance Department in New York. The Petitioner also claims that he entered his plea of guilty as a matter of convenience in order to avoid a long and expensive trial, and on the advise of his counsel. He maintains that he did not file a false insurance claim and did not conspire to defraud any insurance company. Rather, he testified that he was very ill at the time, and did not expect to live. In order to avoid the strain and expense of a trial, and since he did not believe he would ever again be physically able to engage in the insurance business, he agreed to resolve the criminal charges against him with a plea of guilty to two counts in the superseding indictment issued against him. Finally, he testified that he indicated on his applications that he had not been convicted by any court since he had not had a jury trial, and he was under the impression that a person can be convicted only if found guilty by a jury. Based upon his demeanor at hearing, it is found that the Petitioner is a credible witness and that his claims that he did not know his New York license had been revoked and that he thought a person could only be convicted if found guilty by a jury are truthful. Nevertheless, the Petitioner was in error regarding both claims, and as a result, he answered questions on his applications in a false and incomplete manner. He was convicted on two felony counts, and his license was revoked in New York based on those convictions.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified to take the examination for licensure as a general lines, and a life and health insurance agent. DONE AND ENTERED this 2nd day of April, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Rejected as a summary of the evidence (Exhibit P-2) and not a proposed finding of fact. Adopted in Finding 1. Adopted and Rejected, in part, in Finding 6. Adopted, in part, in Finding 2, but otherwise rejected as unnecessary, simply a summation of testimony, and as not based on competent substantial evidence. Adopted in Finding 8. Rejected in Finding 9. Rejected as a comment on the record and not a proposed finding of fact. Rulings on the Respondent's Proposed Findings of Fact. COPIES FURNISHED: Mark E. Berman, Esquire 2450 Hollywood Boulevard Suite 401 Hollywood, FL 33020 Gordon Thomas Nicol, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Bill O'Neil, Esquire General Counsel The Capitol, PLaza Level Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
