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
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
Findings Of Fact At all times relevant hereto, respondent, Jack Michael Schwartz, held a life and health agent and ordinary combination life including health agent license issued by petitioner, Department of Insurance and Treasurer. Respondent presently resides at 2027 Northeast 172nd Street, North Miami Beach, Florida. On November 30, 1981 respondent submitted an application to petitioner for licensure as an ordinary life including disability agent. Question 15 on the application asked the following: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." The application was subsequently approved by petitioner in February, 1982 after respondent successfully completed a written examination. On June 18, 1985 respondent submitted an application to petitioner for licensure as a general lines agent. Question 11 on the application asked the following question: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." During the course of a routine background check of Schwartz, petitioner later learned that respondent had pled guilty to grand larceny by fraudulent representation on August 3, 1977 in circuit court in and for Broward County, Florida. The offense is a felony. Schwartz was thereafter placed on probation for five years under the direct supervision of the Department of Offender Rehabilitation. He was released from probation after two and one-half years. Schwartz acknowledged that he had pled guilty to a felony. However, after his probation was ended, Schwartz interpreted advice from his probation officer to mean he did not have to acknowledge on job or licensure applications that he had been convicted of a felony. He had no further explanation for his answers.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the license and eligibility for licensure of respondent be REVOKED. DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1809 PETITIONER: Covered in finding of fact 4. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 3. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Wilbur W. Anderson, Esquire 413-B Larson Bldg. Tallahassee, Florida 32301 Jack Michael Schwartz 2027 N.E. 172nd Street North Miami Beach, Florida 33162
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
The Issue The issue in this proceeding is whether Petitioner, Daniel James Bradley's, application for licensure as a resident life including variable annuity and health insurance agent should be denied for the reasons stated in Respondent, Department of Financial Services', Notice of Denial dated April 26, 2004.
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to the authority granted in Chapter 626, Florida Statutes (2004). On January 3, 2004, Mr. Bradley filed an on-line application with the Department seeking licensure as a resident life including variable annuity and health insurance agent. The on-line application form included the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) 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?. Mr. Bradley answered "No," which was a false answer. The Department conducted an internal investigation during the application process, and the criminal history check obtained by the Department revealed that in 1995 Mr. Bradley was charged with two counts of Obtaining Property for Worthless Check(s) (one check in an amount over $150 and one check in an amount less than $150). On May 31, 1995, in State of Florida v. Daniel J. Bradley, Case No. 94-2473F, in the Circuit Court in and for Sarasota County, Florida, Mr. Bradley appeared before Judge Robert B. Bennett and entered a plea of nolo contendere to the charge of Obtaining Property For a Worthless Check (over $150), which is a third degree felony in violation of Subsection 832.05(4)(a), Florida Statutes (1995). Judge Bennett withheld adjudication of guilt and imposed a fine and court cost in the amount of $250 that was paid by Mr. Bradley. Mr. Bradley testified that during the 1995 period, he was in the midst of a domestic dispute that was finalized in a dissolution of marriage, when he wrote two checks to Sears. He explained further that at the time the checks were written, sufficient funds were in the joint checking account at the bank, but his then-estranged wife withdrew all bank funds without his knowledge or consent resulting in the overdrafts. Explaining his "no" response to the criminal history question on his on-line licensure application form, Mr. Bradley asserted a lack of fully understanding the (intended) meaning of the term "punishable by imprisonment of one (1) year or more." Mr. Bradley testified that he "did not know, and had no reason to know, [or be concerned] that the worthless check charge to which he pled nolo contendere was punishable by imprisonment of one year or more," even though he knew the crime was a third- degree felony. Continuing, Mr. Bradley explained in detail his ongoing domestic entanglement then, as well as his financial obligations now. Mr. Bradley explained that he has undertaken the obligation to care for his parent(s) and his need for income to pay for his children's education. In effect, Mr. Bradley offered an "excusable neglect and a lack of knowledge" explanation for the "no" answer on his on-line licensure application form. Mr. Bradley earnestly insisted that it was not his "intent" to mislead, conceal, or lie about the criminal background question. He explained in detail that he "did not understand nor was he advised by his attorney, Susan Maulucci, or the Sarasota County Circuit Court that any offense that he had been accused or pled guilty to was punishable by a term of incarceration of one or more years." In conclusion, Mr. Bradley stated, "[I]f I had previous knowledge of such information I would never have answered incorrectly. If the question had addressed a felony charge punishable by one or more years, I would have certainly answered yes based on the assumption of a felony being the subject of the question not the period of punishment." It appears from his post-hearing submittal that he was under the impression that the term "felony" is missing from the question and that by the omission, he was somehow misled. The blame-shifting inference Mr. Bradley sought is that it was the omission by the Department to include the word "felony" in its application form that misled him. This suggestion is rejected. Mr. Bradley's explanation becomes even more suspect when one considers: his knowledge and experience as a military police officer; at the time he signed the plea document, it was clear that he was facing up to five years in prison for the crime(s) with which he was charged; when arrested on both misdemeanor and felony check charges, he spent the night in jail; and finally, he signed two bonds, one for the misdemeanor charge and a separate bond for the felony charge before he was released from jail. Mr. Bradley was individually and personally responsible for the accuracy of his answer. His misrepresentation of the truth by answering "no," if not intentional, supports the inference of a reckless or careless disregard as to the truth of the matter asserted. At the time he answered "no" on his application form, Mr. Bradley knew, without a doubt, that he had pled "no contest" to a felony worthless check charge in the Sarasota County Circuit Court in Florida. During his court appearance, he was identified and was personally informed by the presiding judge that he faced a felony charge, and he agreed to enter his plea of nolo contendere to that felony charge. On May 31, 1995, in open court, Mr. Bradley signed an "Acknowledgement and Waiver of Rights" form that contained in paragraph 1, the following statement: "I am pleading to the charge of worthless check (2 counts), and I understand the maximum penalty provided by law is five (5) years prison." (Emphasis added.) After the court accepted his plea, sentenced him, and imposed court costs, Mr. Bradley signed the court's acknowledgement reflecting the disposition of the proceeding. Only after completion of the foregone process was Mr. Bradley free to leave the courtroom.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein filed by Petitioner, without prejudice, for Petitioner to reapply as provided in the Florida Administrative Code Rule 69B-211.042(4). DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 31st day of August, 2004.
Findings Of Fact On January 20, 1986, Petitioner, Paul A. Cusmano, filed an application for Filing for Examination as an Independent, Public or Company Employee Adjuster with the Department of Insurance. Because of the conviction mentioned below, the Department of Insurance denied Petitioner the opportunity to take the examination by letter dated May 29, 1986. The records of the Circuit Court for Palm Beach County, Florida reflect that on August 29, 1984, a criminal Information was filed in Case No. 84-6169F charging Petitioner with Grand Theft in violation of Section 812.014 (1)(2)(b), Florida Statutes based on his alleged theft of a check in the amount of $9,557.30. Grand Theft is an offense involving moral turpitude. Petitioner was found guilty as alleged by the court on April 22, 1985 and on June 3, 1985, the Judge withheld adjudication of guilt and placed him on probation for a period of 18 months. In comments made in open court at the time of the sentencing, the Judge indicated in his opinion the situation arose out of a legitimate dispute over a debt owed by the victim of the theft to the Petitioner, and should be the subject of civil litigation. He indicated he had no choice but to find Petitioner guilty because of the way Petitioner chose to handle the situation. The Judge commented he felt the Petitioner was not a criminal, and since the question of restitution was discretionary, chose not to order restitution. Petitioner's business associates and friends are uniform in their favorable assessment of him and are convinced he is neither of a criminal bent nor dishonest. All feel he would be no risk to the public and, with his qualifications in the construction business, would be an asset to the industry. If permitted to sit for examination and successful in taking it, Petitioner intends to work as an adjuster in the field of construction insurance. He feels he can work properly there, knows it well, and can prevent unethical contractors from taking unfair advantage of the insurance companies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED: That Petitioner's application for examination for licensure as an Independent, Public or Company Employee Adjuster be denied. DONE and ORDERED this 23rd day of October, 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 23rd day of October, 1986. COPIES FURNISHED: William W. Tharpe, Jr., Esquire Legal Division Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32301 Paul A. Cusmano 6912 S.W. 18th Court Pompano Beach, Florida 33065 Honorable William Gunter State Treasurer and Ins. Comr. The Capitol, Plaza Level Tallahassee, Florida 32301
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 At all times material hereto, Respondent has been licensed in the State of Florida as a life and health insurance agent. His licensure as a life and variable annuity contracts agent occurred on April 5, 1993. On September 9, 1994, Respondent pled nolo contendere to criminal charges pending before the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. The charges were third degree grand theft, a felony, and practicing law while his license was suspended, a misdemeanor. Upon entry of his plea, adjudication was withheld, and Respondent was placed on probation for two years and ordered to make restitution in the amount of $400. Respondent did not notify Petitioner in writing within 30 days after pleading nolo contendere to that felony. Respondent's plea and criminal charges related to a fee in the amount of $l,000 which Respondent collected from a client to perform legal services at a time when Respondent's license to practice law was suspended. Although Respondent refunded $600 of that fee to the client, Respondent determined that the client had received $400 worth of services and refused to refund that amount until after the client filed litigation and obtained a civil judgment against Respondent. On or about October 20, 1995, the Florida Department of Corrections filed with the Broward County Circuit Court an affidavit alleging that Respondent had violated the Circuit Court's Order of Probation in a number of different ways. Based upon that affidavit, the Circuit Court issued a Warrant for Respondent's arrest on October 24, 1995. On January 11, 1996, Respondent was disbarred, effective immediately, by the Supreme Court of Florida. At the time of the final hearing in this cause, Respondent was not actively engaged in the insurance business. Rather, Respondent had been employed at the Miami Market for approximately 1-1 years, taking inventory and supervising crews.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the First Amended Administrative Complaint filed against him and revoking his licenses and his eligibility for licensure as an insurance agent. DONE and ENTERED this 5th day of March, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 5th day of March, 1996. APPENDIX TO RECOMMENDED DOAH CASE NO. 95-4700 Petitioner's proposed findings of fact numbered 1, 4-12, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed finding of fact numbered 14 has been rejected as being subordinate to the issues herein. COPIES FURNISHED: Ross S. Burnaman, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mr. David Felix Monaco Apartment 207E 7610 Stirling Road Hollywood, Florida 33024 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
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.
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: 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 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. At the times material to this proceeding, Mr. Estess was the director of Estess Insurance, located in Hollywood, Florida. Mr. Estess has been licensed as an insurance agent in Florida for 34 years and has never had any disciplinary action taken against him. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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.
Findings Of Fact At all times here involved Respondent was licensed by the Florida Insurance Department as a general lines agent to represent Cotton Belt Insurance Company, Inc. and Industrial Fire and Casualty Insurance Co. (Exhibit l). In November, 1977 George Moore, Jr. contacted agent Hopkins to obtain a full coverage policy for his automobile. His previous policy had been cancelled (or would soon be cancelled). The application was filled out by Hopkins and on November 15, 1977 Moore executed the application (Exhibit 2) and gave Hopkins a check as down payment on the premium in the amount of $199.80. This check was negotiated by Hopkins on December 18, 1977. Several weeks later Moore had not received his policy and he asked Hopkins about the delay. Hopkins replied that he (Moore) should have his policy in another two or three weeks. At no time prior to Moore's January 9 automobile accident did Hopkins tell Moore that his application did not include collision coverage or that the application had never been submitted to the carrier. On January 9, 1978 Moore was involved in an automobile accident in which he was the responsible party. Upon informing Hopkins of the accident the latter advised Moore that he was covered. Hopkins later told Moore that he was not covered for collision but he came and took Moore's car to be repaired, stating that the repairs would not have to be paid for by Moore. When Moore contacted Insurance Company of North America (INA) he learned they had no policy covering him. He subsequently had to pay $300 for the repairs to his car. On February 2, 1978 INA received Moore's application from Hopkins with a check for down payment on the premium signed by Hopkins. Because rules of the Florida Joint Underwriters Association require applications be promptly submitted, INA denied Moore's application and so advised Hopkins. In the summer of 1978, Hopkins refunded to Moore the $199.80 payment Moore had made on November 15, 1977. By Order entered 18 January 1973 (Exhibit 4), Respondent was found guilty of six counts involving failure to remit collected premiums to the insurer, and failure to submit applications with premium payments received from clients. As a result thereof he was placed on probation for a period of two years and ordered to make restitution to all parties suffering loss from his unlawful acts.
