The Issue Whether Petitioner's application for licensure as a health insurance agent should be granted.
Findings Of Fact By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Naomi A. Visser for licensure as a health insurance agent. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 21st day of January, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Naomi A. Visser 1617 London Grove Port Road Grove City, Ohio 43123 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether Respondent, Amelia Kay Jacobs, committed the offenses alleged in an Administrative Complaint entered by the Insurance Commissioner of the State of Florida on February 20, 1998.
Findings Of Fact Petitioner, the Department of Insurance (hereinafter referred to as the "Department"), is an agency of the State of Florida charged with the responsibility for, among other things, the licensing and discipline of insurance representatives in Florida. Chapter 626, Florida Statutes (1997). Respondent, Amelia Kay Jacobs, is currently licensed by the State of Florida as a nonresident life and health agent. Ms. Jacobs agent number is 510427789. On or about July 24, 1980, a Complaint/Information was filed in the District Court of the Eighteenth Judicial District in and for Sedgwich County, Kansas, charging Ms. Jacobs with one count of Giving a Worthless Check in violation of Section 21- 3707, Kansas Statutes, a Class E Felony. On or about April 28, 1981, Ms. Jacobs entered a plea of guilty to the charge of Giving a Worthless Check before the Kansas District Court. The Court adjudicated Ms. Jacobs guilty as charged, but withheld sentencing for a period of one year from June 26, 1981. Ms. Jacobs was subsequently released early from probation. On or about May 20, 1996, Ms. Jacobs swore to and signed an Insurance License Application (hereinafter referred to as the "Application") with the Department. Ms. Jacobs filed the Application seeking licensure as a nonresident life and health agent. On the Application Ms. Jacobs, while under oath, responded "NO" to the following questions: 13. Have you ever been convicted of, found guilty of, or pleaded no contest to a crime involving moral turpitude No (yes or no), or a felony No (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or country, whether or not a judgment of conviction has been entered? No (yes or no) If yes, give date(s): N/A Ms. Jacobs knew or should have known that her answers to question 13 were false and a material misrepresentation of fact. The Department relied upon the incorrect misrepresentation of Ms. Jacobs to question 13 on the Application in approving the Application. Ms. Jacobs was informed by the Department by letter dated August 14, 1996, that the Department had received information concerning the foregoing. The Department gave Ms. Jacobs an opportunity to explain the incident or to withdraw her Application because she was a first-time applicant still on probation. On or about February 20, 1998, the Insurance Commissioner entered an Administrative Complaint against Ms. Jacobs. The complaint was based, in part, on the incident described, supra. On or about February 28, 1998, Ms. Jacobs executed an Election of Rights form denying the factual allegations of the Administrative Complaint and requesting a formal administrative hearing. Rule 4-231.160(2), Florida Administrative Code, lists certain aggravating and mitigating circumstances which should be considered in determining the appropriate penalty for a violation of Sections 626.611(14) or 626.621(8), Florida Statutes (1997): The number of years since the criminal proceeding: It has been 18 years since Ms. Jacobs was charged with Giving a Worthless Check in violation of Section 21-3707, Kansas Statutes. Age of licensee at the time the crime was committed: Ms. Jacobs was 36 when the offense was committed. Whether licensee served time in jail: The evidence failed to prove that Ms. Jacobs served time in jail. Whether or not licensee violated criminal probation: Ms. Jacobs did not violate probation. She was released from probation early. Whether or not licensee is still on criminal probation: The evidence failed to prove that Ms. Jacobs is still on probation. Whether or not licensee's actions or behavior resulted in substantial injury to the victim: Ms. Jacobs made restitution of the amount of the worthless check. The victim, therefore, did not suffer substantial injury. Whether or not restitution was, or is being timely, paid: Ms. Jacobs made restitution. Whether or not licensee's civil rights have been restored: Ms. Jacobs' civil rights were not impacted. Other related factors: The evidence failed to prove that any other factors apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Insurance finding that Amelia Kay Jacobs has violated the provisions of Sections 626.611(2), (7), and (14), and 626.621(1) and (8), Florida Statutes (1997), as alleged in the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Jacobs violated Sections 626.611(1) and (13), and 626.621(2), Florida Statutes (1997), be dismissed. It is further RECOMMENDED that the nonresident life and health agent license issued to Ms. Jacobs be suspended for a period of six months from the date of the Final Order. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance 645A Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Amelia Kay Jacobs Post Office Box 8073 Wichita, Kansas 67268-8073 Bill Nelson State Treasurer and Insurance Commission The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, Eduardo E. Ramos was a licensed medical doctor in Florida. He is also licensed in the states of Maryland, New jersey and New York, and specializes in general surgery. On November 11, 1977 , an Information was filed against respondent alleging one count of conspiracy and eleven counts of grand larceny. On or about April 6, 1978, respondent pled guilty to Count III of the Information, which charged respondent with grand larceny. Judge Richard S. Fuller of the Circuit Court of Dade County stated that he was satisfied there was a factual basis for the plea. On May 23, 1978, Judge Fuller entered an "order withholding adjudication." Said order states, in part, "it appearing unto the court that the defendant, Eduardo Ramos, has been found guilty of the charge of grand larceny as set forth in Count Three of the Information by the Court upon the entry of a guilty plea. . . ." The Court withheld the imposition of sentence and placed the respondent on probation for a term of three years. Among the conditions of his probation, respondent was ordered to pay a fine in the amount of $2,000.00, make restitution to the insurance company in the amount of $550.00 and serve one veer of weekends In community service at the Jackson Memorial Hospital, Ward D. At the time of the hearing in this cause, respondent had completed his year of weekend service at the Jackson Memorial Hospital. He reported there every Friday at 6:00 p.m. and stayed until Sunday, 6:00 p.m. His services included acting as a physician, a consultant, an instructor to nurses, a nurse and an orderly. Dr. Ramos did fill out and sign multiple insurance forms for a patient and responded "no" to the question on the form asking if there was other insurance coverage. He did not have specific knowledge of the patient's intent to defraud the insurance companies and he received no extra compensation from the patient for filling out the form. He received no compensation or reimbursement from the insurance company. He did realize that something was not right when he was asked by the patient to fill out and sign several forms.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Board find the respondent guilty of violating Sections 458.1201(1)(c) and (1)(k), Florida Statutes, and issue a private reprimand to respondent for said offenses. Respectfully submitted and entered this day of July, 1979, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein and Wiley 666 Lewis State Bank Building Tallahassee, Florida 32301 Leonard Sussman 204 Biscayne Building 19 West Flagler Street Miami, Florida 33130 Michael Schwartz Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent's life and health insurance license should be disciplined for the reasons set forth in the Administrative Complaint filed on June 15, 1989. That Complaint alleges that Respondent has violated certain provisions of the Florida Insurance Code. Specifically, Petitioner alleges Respondent has violated Section 626.611(7), Florida Statutes as a result of a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, Section 626.611(14), Florida Statutes as a result of having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state which involves moral turpitude and/or Section 626.621(8), Florida Statutes as a result of being guilty of, or having pleaded guilty, or nolo contendere to a felony in this state.
Findings Of Fact At all pertinent times, Respondent has been licensed by Petitioner as a life and health insurance agent. In October of 1987, Respondent was arrested and formally charged by the State Attorney of the Seventeenth Judicial Circuit for the State of Florida with grand theft of over $20,000.00 and three counts of perjury in an official proceeding. The criminal charges against Respondent arose in connection with her relationship with an elderly woman who was stricken with cancer. The evidence provided only sketchy details of the circumstances that led to the criminal charges. From the evidence presented, it appears that Respondent befriended the woman a short time before she died. After the woman died, a controversy arose regarding certain transfers of property to Respondent and a will executed by the deceased woman naming Respondent as beneficiary. A civil law suit was filed contesting the will and the property transfers to Respondent. Ultimately, the will which left all of the elderly woman's property to Respondent was disallowed and certain transfers of property to Respondent were overturned. Criminal charges were initiated against Respondent by the prevailing heir. As part of a plea bargain arrangement, Respondent entered a plea of guilty to the charge of grand theft and the three perjury counts were dismissed. The Circuit Court for Broward County withheld adjudication on the grand theft count and placed Respondent on probation for ten years with a requirement that she make restitution to the victim, an heir of the estate. The restitution required as part of the criminal proceeding was intended to compensate the prevailing heir for attorney's fees incurred in connection with the civil action. While Respondent continues to deny any wrongdoing in her dealings with the deceased woman, she claims she had inadequate resources to fight the criminal matter further. In entering into the plea arrangement, Respondent anticipated that she would be able to continue in the insurance business. Her insurance business is the only source of income which Respondent can reasonably anticipate generating sufficient money to make the restitution payments. It is clear from the transcript of the sentencing proceeding that the circuit court judge withheld adjudication on the grand theft charge with the understanding that by doing so the Respondent would be able to continue to sell insurance. Respondent has been making the restitution payments required as part of her probation and she is dependent upon the continuation of her insurance business in order to make those payments in the future. As a result of the initiation of this proceeding against Respondent by Petitioner, Respondent has been cancelled by the various insurance companies for whom she used to write insurance. Thus, she has been effectively suspended from the insurance business since shortly after the initiation of this proceeding. No evidence was introduced that Respondent committed any other criminal offenses of any nature at any time, nor was any evidence produced of any other violations of the insurance code by Respondent since her initial licensure in 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure and eligibility for licensure for six- months. DONE and ORDERED this 19 day of March, 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of March, 1990. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Barbara Helen Askea 2315 Northeast 5th Avenue Pompano Beach, Florida 33064 Tom Gallagher Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact On or about September 24, 1982, the Petitioner, Donald Ray Shelton, submitted his application to the Department of Insurance in order to become licensed as an Ordinary Life including Disability agent in the State of Florida. On January 21, 1983, the Department of Insurance, by letter, notified Petitioner that his application for examination and licensure as an Ordinary Life including Disability agent had been denied. That letter, in summarizing the grounds for denial, stated: The reason for the denial is because on your application for license you failed to note that you had been charged with a felony, your record of issuing worth- less checks and your record of traffic offenses. Additionally, on a previous application for license processed by the Department of Insurance for examination, you gave false information, i.e., social security number, birthplace, residence address, employment history and license history as insurance agent. One of the grounds for denial related to an application filed with the Department by American Republic Insurance Company in March, 1981. (See Respondent's Exhibit 1.) The social security number, birthplace, residence address, employment history, and license history as an insurance agent were all false. This information had been entered on the application by the Petitioner during a job interview with American Republic. The petitioner signed the application but did not sign in the presence of a notary. Petitioner also signed an additional application form titled Application for State and County License as Life/Disability Agent. (See Joint Exhibit No. 2.) This form did not require a notary. The interview with American Republic had been arranged by a close friend and the Petitioner gave the false information in order to not appear disinterested. He, however, did not want his friends, relatives, and business associates being bothered by a background investigation for a job he was not going to accept. The Petitioner had not intended for the March, 1981, application to be filed with the Department of Insurance, because he had no intention of going to work for American Republic. He learned that the application had been filed when he received notification that he had been approved for taking the examination. He did not take the examination. He did not notify the Department of Insurance that the application was filed without his knowledge or authorization. In October, 1982, Petitioner sent a letter of explanation to the Department after inquiry was made about the March, 1981, application in connection with the processing of the current application. (See Petitioner's Exhibit No. 1.) Another ground for denial by the Department was the Petitioner's failure to disclose he had been arrested for a felony, auto theft. Petitioner unequivocally denied ever having been arrested or charged with auto theft or any other felony. The evidence offered by the Department did not establish that the Petitioner had ever been arrested for larceny of an auto or that larceny of an auto as set forth in the Index to Criminal Records (Respondent's Exhibit 3) was a felony. petitioner did not fail to disclose an arrest for or charge of larceny of an auto. The application form does not ask for nor provide a space for the disclosure of traffic, bad check offenses, or other non-felony offenses. On October 29, 1980, the Petitioner pled guilty and was found guilty of the crime of worthless checks. The offense arose out of a check written to the Army Store on June 8, 1980, in the amount of $149.46, and returned due to the account being closed. The check was signed by Petitioner and was check number 126. The face of the check reveals that the account was in the name of "Donald R. Shelton" and "Vickie Shelton". Petitioner was sentenced to six months imprisonment which was suspended for two years, two years probation, and payment of restitution, and court costs. This conviction occurred in Case Number 80 Cr 4469, 30th District Court, Baywood County, North Carolina. Also, on October 29, 1980, Petitioner pled guilty to six other worthless check charges. Court records reveal the following information with regard to those convictions. Case No. 3205 involved Check No. 107 written to Bilo in the amount of $60.57 on March 1, 1980, and returned not paid because of insufficient funds. Case No. 80 Cr 2639 arose out of Check No. 3 written to Ingles on February 22, 1980, in the amount of $37.49 and returned not paid because of insufficient funds;. This check is a counter check without the name and address of Petitioner and Vickie Shelton printed on it. The check number is written on the check rather than pre-printed. Case No. 80 Cr 4053 arose out of Check No. 108 written on March 4, 1980, to Gas & Groceries in the amount of $21.30 and returned not paid because of insufficient funds. Case No. 80 Cr 4054 involved Check No. 105 written on March 1, 1980, to Gas & Groceries in the amount of $23.60 and returned not paid because of insufficient funds. Case No. 80 Cr 6027 involved Check No. 120 written to Potts Texaco on June 7, 1980, in the amount of $25.50 and returned not paid because of account closed. Case Nos. 80 Cr 2639, 80 Cr 4053, 80 Cr 4054, and 80 Cr 6027 were consolidated and for the conviction in these four cases, Petitioner was sentenced 30 days imprisonment suspended for two years with two years probation and restitution on each check and court costs in each case. This sentence was to begin following completion of the sentence in Case No. 80 Cr 4469 discussed in Paragraph 7 above. In Case No. 3205, Petitioner was sentenced to six months imprisonment, suspended for two years with two years probation and payment of restitution and court costs. All of the checks in these cases were written on the same account. This account was a joint account with Petitioner and his ex-wife as signatures on the account. On January 9, 1981, the Petitioner pled guilty and was convicted of worthless checks. That charge arose out of Check No. 109 written on March 4, 1980, to John Graham's in the amount of $259.98 and returned not paid because of insufficient funds. He was sentenced to pay court costs plus restitution. On February 16, 1981, the Petitioner pled guilty to the crime of worthless checks. The charge involved Check No. 101 written to Sky City on February 28, 1980, in the amount of $33.58 and returned not paid because of insufficient funds. Petitioner was convicted and sentenced to pay court costs plus restitution. On February 25, 1981, after making full restitution, the two year probation was terminated by the Court. Each of the worthless checks discussed above was written in February, March, or June, 1980. During the period August, 1979, to July, 1980, the Petitioner was unemployed. During this period, Petitioner was also going through a hotly contested divorce and checks were being written on the joint account by his now ex-wife without his knowledge. During this time, Petitioner did not make an effort to determine the balance in his checking account. The Petitioner has been convicted of the following traffic offenses: September 24, 1970: Speeding. September 18, 1970: Violation of quiet zone ordinance. September 23, 1971: Expired inspection sticker. October 19, 1972: Driving under the influence. Petitioner was 17, 18, and 19 years old when the offenses occurred. From April, 1977, to August, 1979, the Petitioner was employed by Globe Life Insurance Company in the State of North Carolina. Until August 1, 1979, Petitioner was a licensed Life and Accident and Health Agent in the State of North Carolina. The Petitioner is an agent in good standing with the Department of Insurance of the State of North Carolina. He had no complaints made against him or his license while selling insurance for Globe Life. He was a good, reliable agent while with Globe Life.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner's application for licensure be granted conditioned upon passing the required examination and payment of the necessary fees. DONE and ENTERED this 15th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301 Donald Ray Shelton Post Office Box 155 Grand Island, Florida 32735 Ruth Gokel, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
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
The Issue The issues to be resolved in these proceedings concern whether the Petitioner is entitled to licensure as a non-resident life and health insurance agent in Florida in consideration of a prior history involving a criminal charge concerning a felony of moral turpitude, as well as his alleged failure to disclose prior disciplinary actions against his licenses by Florida and Wisconsin, which arose out of the same felony charge.
Findings Of Fact The Petitioner is a licensed insurance agent, who has been practicing as an insurance agent for 25 years in Minnesota, Florida and Wisconsin. His Florida licensure was suspended for a period of two years by Final Order of the Department entered on November 25, 1985. That regulatory situation is described in more detail below. The Petitioner has now applied for licensure in Florida as a non- resident life and health insurance agent. He primarily practices insurance in the State of Minnesota, his native state. He did, however, practice in Florida from approximately 1980 to 1985 but relocated to Minnesota after his prior Florida disciplinary experience. The Respondent is an agency of the State of Florida charged with enforcing the licensure standards for insurance. Those standards are embodied in Chapter 626, Florida Statutes. The Respondent is charged with insuring that licensed applicants and licensed agents comply with those standards and with conducting enforcement actions and imposing penalties up through and including licensure revocation or denial where agents or applicants fail to comply with Florida's insurance law. Upon the convening of the prior disciplinary action against the Petitioner in 1984, the Petitioner was licensed as an ordinary life and disability insurance agent, doing business as Steven Miller Insurance and Associates in Daytona Beach, Florida. On June 2, 1983, the Petitioner was charged, by criminal information in Case No. 83-2219-CC, with two felony counts, Count One being presentation of a fraudulent insurance claim in violation of Section 817.234, Florida Statutes, and Count Two being a charge of grand theft of the second degree, in violation of Section 812.014, Florida Statutes. On January 5, 1984, the Petitioner entered a plea of nolo contendere to the felony offense of grand theft, second-degree felony. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit in and for Volusia County, Florida (Circuit Court) accepted that plea and placed the Petitioner on three years of supervised probation, but withheld adjudication of guilt and imposition of sentence. On July 18, 1985, the Petitioner was discharged early from his probation, after successfully completing 18 months of the original three-year probationary period. In June of 1982, the Petitioner's wife's sister and her husband came to Florida to visit the Petitioner and his wife for a period of time. The Petitioner's brother-in-law and wife were having severe financial problems. The Petitioner owned a 24-foot boat at the time, which he kept stored in a vacant lot, behind a chain-link fence, in the vicinity of his home. Several days after his brother-in-law and sister-in-law returned to their home in Minnesota, the Petitioner noticed that his boat was missing. On June 29, 1982, he reported the boat as being stolen to the Daytona Beach Police Department. Several months after reporting the theft, he filed an insurance claim seeking reimbursement on his insurance policy for the theft of the boat. Approximately one year later, the boat was found in the possession of his brother-in-law, who had returned to his home in Minnesota shortly before the boat was reported stolen. In order to save himself from prosecution, the brother-in-law claimed that the boat had been given to him by the Petitioner and that he had not stolen it. Consequently, the Petitioner was charged with one count of insurance fraud, a felony, and the other charge referenced above involving second-degree grand theft, also a felony. According to the Petitioner, he presented adequate proof that he had not stolen the boat and the insurance fraud charges were immediately dropped. He was then informed, by his counsel in the criminal matter, with the agreement of the state attorney and the court, that, in effect, if he pled nolo contendere to the grand theft charge, the criminal matter could be put behind him with a minimum of anguish and expense. In return for such a pleading, he was assured that it would effectively be the same as pleading not guilty, that his insurance license would not be affected by the matter or the result, and that by so pleading, he could avoid the straining of his marriage because of the family relationship involved in the underlying facts. Consequently, the Petitioner pled nolo contendere to the second criminal charge involving second-degree grand theft. Adjudication and sentencing were withheld, and he was placed on three years of supervised probation, which he successfully completed in 18 months. Thereafter, on or about October 25, 1984, an Administrative Complaint was filed by the Department against the Petitioner in Case No. 84-L-360LS (DOAH Case No. 84-4124), which ultimately went to hearing before a Hearing Officer of the Division of Administrative Hearings. The issue in that proceeding concerned whether disciplinary measures provided for in Sections 626.611 and 626.621, Florida Statutes, should be imposed for the plea of nolo contendere to a felony offense involving moral turpitude. The Hearing Officer, after finding the facts as delineated above, entered a Recommended Order finding that the offense charged did involve moral turpitude and that the petitioner in that case had met its burden of proof of showing a violation which could stand independently of whether or not there had been an adjudication of guilt. Accordingly, the Hearing Officer recommended that a Final Order be entered suspending the Petitioner's licensure for a period of two years and, by Final Order entered on November 25, 1985, the Department adopted the Recommended Order as the agency's Final Order and imposed a suspension of licensure for a period of two years from that date. Thus, the suspension terminated on or about November 25, 1987. On his application for licensure, dated November 29, 1994, in response to the question concerning whether his application or licensure had ever been suspended, etc., the Petitioner answered "yes". The question requires no explanation of the circumstances on the application form. The Petitioner, however, gratuitously, drew an arrow to the margin of the form and indicated that he had been suspended in Minnesota in 1987 briefly, for two weeks, for accidentally "overlapping" a medicare supplement policy too long. He wrote no such explanation concerning his Florida suspension occurring in 1985. The Petitioner, however, established that he knew, of course, that the Department already had knowledge of that suspension, it having entered a Final Order, still in its records, suspending him for two years, as referenced in the above Findings of Fact. Moreover, the Petitioner was under the impression that since that suspension arose out of the criminal activity with which he had been charged and which record had been sealed by order of the Circuit Court, he need not respond in the affirmative to that question concerning the Florida suspension. That is the same reason he answered "no" to the question concerning any plea or conviction involving a crime of moral turpitude. This belief was based upon the fact that the sealing order of the Circuit Court, pursuant to Section 943.059, Florida Statutes, allowed him to deny that those criminal charges, and the probation imposed, had ever occurred to any employing or licensing entity not specifically enumerated in that statute. The Department is not specifically enumerated in that statute as an agency to which the protection of the sealed record for the Petitioner does not apply. Thus, the Petitioner had no intent to defraud or misrepresent, in a material way, his entitlement to licensure by his answers on the application concerning the earlier Florida prosecution. In any event, in the free-form stage of this matter, before the first denial letter and the amended denial letter were filed and served on the Petitioner, the matter had been discussed with agency personnel and thus disclosed. On or about September 11, 1987, the Petitioner's license in the State of Minnesota was suspended for four weeks for purported improper "overlapping" and duplicating of medicare supplement coverages, in violation of Minnesota statutes. The Petitioner established that that was an inadvertent violation. It occurred due to an administrative and record-keeping error in his office. He acted immediately to correct the error, and the licensure authorities in Minnesota were satisfied with his efforts to correct the error. No member of the public suffered any pecuniary or other loss as a result, nor did the Petitioner gain any pecuniary or other benefit by that mistake. It was simply a clerical or administrative error due to inadvertent mistake. On or about September 28, 1989, the Petitioner was disciplined by the State of Wisconsin, Department of Insurance, and ordered to pay a fine based upon a settlement negotiation. This occurred because of his failure to disclose on his application for licensure as an "intermediary" in Wisconsin his previous Florida disciplinary action concerning the criminal matter. Indeed, the Petitioner did not disclose that to the State of Wisconsin. The reason he did not, as he established by unrefuted testimony, was that by the time he applied for licensure in Wisconsin, the circuit court's order sealing the record concerning the criminal matter had been entered. By his lay understanding of the law concerning sealing of his record, he was allowed to decline to disclose anything concerning that criminal matter or any matter based upon it. In his mind, this included no longer being under a requirement to disclose the Florida Department of Insurance disciplinary action which arose out of that criminal matter. His belief in this regard was further buttressed by the fact that the Department itself, upon his request, issued a "letter of clearance" for him to supply to the Wisconsin Department of Insurance. This document depicted that he was in good standing in terms of his licensure in the State of Florida (this was after the lapse of his two-year suspension period) and that there was no impediment, as far as Florida was concerned, to his licensure in the other jurisdiction. Under these circumstance, the Petitioner did not believe that he had a legal obligation to disclose to Wisconsin the matters concerning the Florida suspension. Upon learning of it, the State of Wisconsin, Department of Insurance, initiated a disciplinary action. Upon negotiation and stipulation, he was required to pay a $500.00 fine. When the Petitioner was asked about any suspensions of his licensure, on the application form at issue, and since the form and the question do not provide for any written explanation, he did not disclose the Wisconsin action leading to his fine. This is because, in the first place, it was not a suspension. Moreover, he still believed that, due to the circuit court's order sealing the record, since the Wisconsin action grew out of the Florida disciplinary and criminal matter, it was all related and he was not required to disclose it. Further, he did not believe that he had actually had a disciplinary action imposed in the State of Wisconsin. This is because the $500.00 fine, which he agreed to pay, was based upon a "stipulation and order." This document clearly recites upon its face (Petitioner's Exhibit 3) that the respondent (the Petitioner herein) denied the allegation and merely wanted to resolve the matter to avoid further litigation and expense. It states that the stipulation and order did not constitute the adjudication of any issue of fact or law and would not be admissible as such in any proceeding. Thus, because no determination of any guilt had been made regarding him by the State of Wisconsin and because the $500.00 fine he paid was merely the result of a settlement negotiation to prevent litigation, the Petitioner did not deem that he had been subjected to actual disciplinary action and certainly not suspension by the State of Wisconsin. Thus, it has not been established that he failed to reveal the Wisconsin matter on his application through any intent to misrepresent or defraud the Department in Florida, in a material way, in an attempt to gain licensure. This is particularly deemed to be the case because if he had been merely seeking to conceal what he actually believed was a disciplinary action occurring in Wisconsin, it would be illogical to assume that he would disclose the Minnesota action. He freely and voluntarily disclosed the Minnesota action, however, which he knew to be a brief suspension of his license. The Department, by the amended denial letter, is also seeking to deny licensure based upon his having pled nolo contendere to the criminal charge, as referenced above. This is so even though the Department, when it could have revoked his license for that same ground in 1985, chose the two-year suspension as an appropriate penalty for that criminal infraction, which resulted from a negotiated plea of convenience. In 1985, when the Final Order was entered, only two and one-half to three years had elapsed after the infraction is supposed to have occurred. The Department, however, without any significant time for rehabilitation from the effects on his license-worthiness from the purported criminal infraction, implicitly took the position that revocation of licensure was not appropriate and only a two-year impairment to licensure entitlement was warranted. Approximately a decade has now elapsed since the prior Florida discipline and approximately 12 to 13 years since the basis of that discipline (the criminal matter). The Petitioner has substantially shown his rehabilitation from the effects of that incident. The criminal matter itself did not involve any proof of actual guilt of immoral conduct but, rather, was a negotiated plea for the convenience of the Petitioner and the avoidance of the expense and anguish of trial. Moreover, the Petitioner has been a licensed agent in Minnesota, Florida, and Wisconsin for some 25 years and has never had any disciplinary altercation other than those mentioned in the evidence and this Recommended Order which arose out of that negotiated plea. The Minnesota and Wisconsin infractions were not significant in terms of reflecting adversely on the Petitioner's character, traits of honesty and trustworthiness, nor his competence, and qualifications to practice as an insurance agent. The Florida infraction in 1985 on its face is serious; however, the actual underlying facts do not reveal that the Petitioner was actually guilty of second-degree grand theft because of the findings concerning the imposition of probation through a "plea of convenience", upon advice of counsel and the court. The unrefuted testimony is that the Petitioner practiced insurance in a manner in which the public has never been harmed. No policyholder or insurer has suffered loss by any act or omission of the Petitioner, nor has the Petitioner benefited pecuniarily from any wrongful conduct. The above facts and circumstances, taken in their totality, show that the public in the State of Florida will not be harmed by licensure of the Petitioner. The total circumstances represented by the above Findings of Fact show that any adverse implication on his qualifications or worthiness for licensure has long since been rehabilitated by the passage of time and by the appropriate and proper conduct of his business as an insurance agent in the states where he has been licensed. In 25 years, he has continuously handled money and financial affairs of insurers and insureds with honesty and integrity. It has not been demonstrated that the Petitioner lacks fitness or trustworthiness to engage in the practice of insurance or that he is incompetent to engage therein. It has not been demonstrated that he made a misrepresentation or other fraudulent act in the obtaining of a license or appointment or in the initiation of an attempt to obtain a license or appointment.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered granting the Petitioner's application for licensure as a non-resident health and life agent. DONE AND ENTERED this 6th day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3363 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 6-14. Accepted. 15. Accepted, but not as to its entire purported legal import. Respondent's Proposed Findings of Fact 1-5. Accepted. 6. Accepted, but not for its entire purported material import. 7-9. Accepted, but not in themselves materially dispositive. COPIES FURNISHED: Thomas F. Woods, Esquire 1709-D Mahan Drive Tallahassee, Florida 32308 Allen R. Moayad, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner, Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue Whether the Respondent violated Chapter 626, Florida Statutes, by entering a plea of nolo contendere of grand theft of the third degree; whether he was placed on probation without an adjudication of guilt for grand theft of the third degree; and whether he lacks the fitness and trustworthiness to engage in the insurance business contrary to Chapter 626, Florida Statutes.
Findings Of Fact The Respondent, Ronald David Lewis, holds various licenses to sell insurance contracts issued by the Petitioner, which is charged by statutes to regulate licensees. The Respondent misappropriated over $10,000 from Audrey M. Walker, who was a client of the Respondent. The State's Attorney for the Seventh Judicial Circuit filed an information against the Respondent charging him with grand theft of the third degree. The Circuit Court Judge Shawn L. Briese entered an order of probation which reflects that the Respondent entered a plea of nolo contendere, and was placed on 60 months' probation by order withholding adjudication of guilt. The deposition of Audrey M. Walker establishes that the Respondent misappropriated funds from Ms. Walker, whose trust he had gained by virtue of his licensed status.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order revoking all the licenses Respondent holds to sell insurance contracts. DONE AND ENTERED this 9th day of March, 2001, 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 9th day of March, 2001. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Ronald David Lewis 3800 South Atlantic Avenue Apartment 304 Daytona Beach, Florida 32127 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
