02-002206 Roy T. Gelber vs. Department Of Insurance Status: Closed Recommended Order on Monday, December 2, 2002.

Summary: Evidence showed former judge who took bribes while sitting ten years ago has rehabilitated himself and is therefore entitled to licensure as legal expense agent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROY T. GELBER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2206

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, thi s cause came on for hearing before

Diane Cleavinger, Administrative Law Judge for the Division of

Administrative Hearings, on August 27, 2002, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: John R. Forbes, Esquire

8825 Perimeter Park Boulevard

Suite 102

Jacksonville, Florida 32216

For Respondent: Matthew A. Nowels, Esquire

Department of Insurance

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to a legal expense insu rance

agent's license.

PRELIMINARY STATEMENT

On October 17, 2001, Petitioner submitted an application

for licensure as a legal expense insurance agent to the

Department of Insurance (Department). On December 20, 2001, the

Department denied Petitioner's application for licensure based

upon his lack of fitness and trustworthiness because on April 9,

1992, Petitioner pled guilty to conspiracy to engage in

racketeering in Federal District Court for the Southern District

of Florida for behavior that occurred while he was a sitting

circuit court judge . Petitioner disputed the Department's

denial and requested a hearing. The Department timely received

Petitioner's Election of Rights form which requested an informal

proceeding pursuant to Section 120.57(2), Fl orida Statutes. On

May 23, 2002, Petitioner filed a Notice of Amending Election of

Proceedings in which he requested the hearing be transferred to

the Division of Administrative Hearings (DOAH) and be held

pursuant to Section 120.57(1), Florida Statutes, in order to

dispute the factual allegations of the Department. The matter

was referred to DOAH.

At the hearing, Petitioner testified in his own behalf and

offered two exhibits into evidence. Respondent did not call any

witnesses, but offered eight exhib its into evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order on September 24, 2002, and Respondent filed a Proposed

Recommended Order on September 23, 2002.

FINDINGS OF FACT

1. On October 17, 2001, Petitioner applied for licensure

as a legal expense insurance agent.

2. On December 20, 2001, the Department denied

Petitioner's application for licensure based upon his unfitness

and untrustworthiness due to Petitioner's guilty plea to

conspiracy to engage in racketeering, for conduc t which occurred

while he was a sitting circuit court judge and which was related

to his judicial duties. Petitioner had fully disclosed the plea

and the details of the crime in his application to the

Department.

3. Petitioner received a juris doctorate degree in 1975

and a master's in criminal law in 1977.

4. After being admitted to the Florida Bar, Petitioner

worked as an assistant state attorney, as an associate with a

private firm, as a practitioner in his own law firm, and finally

was elected to a judgeship at the county court level.

Petitioner served two years as a county court judge. In 1988,

Petitioner was elected to the circuit court.

5. As such, Petitioner was required to read, know, and

abide by the Code of Judicial Conduct. He swore to uphold the

Code of Judicial Conduct and voluntarily assumed an office that

encompassed the highest level of responsibility and fiduciary

duty to the public found in any public office in the United

States of America.

6. Petitioner was assigned to the crim inal law division of

the circuit court.

7. Petitioner knowingly took bribes while he was a sitting

circuit court judge. Because Petitioner was in debt, he

approached an attorney named Raymond Takiff for a loan.

Petitioner admitted that Mr. Takiff agree d to give him money in

exchange for Petitioner's helping him out some time in the

future. At that time, Mr. Takiff was being used by the Federal

Bureau of Investigations (FBI) to set up an undercover bribery

investigation.

8. In return for Mr. Takiff's financial help, Petitioner

ruled in favor of Mr. Takiff and ordered the return of some

property that was the subject matter of one of the false

criminal/forfeiture cases used by the FBI in their

investigation.

9. Petitioner knowingly helped Mr. Takiff es tablish a

group of judges who would also take bribes. Petitioner stated

that he introduced Mr. Takiff to ten other judges and that these

instructions included Petitioner's saying that Mr. Takiff was

trustworthy, that he could make it worth their while, an d

convincing the judges that Mr. Takiff was not working for the

government.

10. Petitioner continued to be involved in the on - going

scheme to bribe multiple judges. One of the judges who received

money from Mr. Takiff proceeded to send a portion of this bribe

back to Respondent.

11. Petitioner ultimately received $88,000.00 from

Mr. Takiff in exchange for actions such as ruling for Mr. Takiff

in one case and for knowingly establishing Mr. Takiff with other

judges in an attempt to perpetuate the brib ery scheme.

12. Petitioner also accepted money from friends in

exchange for setting them up with some appointments.

13. Eventually, Petitioner was caught and arrested by the

FBI. Petitioner agreed to help the FBI in the on - going

investigation and multipl e trials stemming from the FBI sting

operation.

14. As a result of the aforementioned acts on April 9,

1992, Petitioner pled guilty to conspiracy to engage in

racketeering in Federal District Court in the Southern District

of Florida and was sentenced to 12 years and seven months in

federal prison.

15. Petitioner's actions violated the fiduciary duty he

had voluntarily assumed upon becoming a circuit court judge, and

by introducing other judges to Mr. Takiff, he was promoting and

causing a continuous and increasing breach of the judiciary's

fiduciary duty to the public. The offense for which Petitioner

was convicted did not have any relation either directly or

indirectly upon the insurance business.

16. Petitioner was disbarred on September 26, 1991. W hile

in prison, Petitioner continued to live up to his agreement to

help the FBI in the prosecution of criminal cases stemming from

the sting operation, even though he did not have to, and was in

grave danger because of his continued help. Petitioner had

numerous threats made on his life, including contracts to kill

him. Petitioner was nearly beaten to death in the attempted

execution of one of the contracts on his life. He continued to

help the FBI and felt it was one way to make up for his absolute

bre ach of conscience and faith in committing the crime for which

he was imprisoned.

17. Subsequent to an unusual Rule 35 hearing held on

June 9, 1995, Petitioner's sentence was shortened to five years'

incarceration followed by three years' supervised relea se. The

Rule 35 hearing was unusual in that the FBI agents and

prosecutors were strongly in favor of Petitioner's release from

prison and testified in his favor.

18. Petitioner has completed his supervision and has since

tried to pick up the pieces of his life. As a result of his

conduct, Petitioner lost everything -- family, friends, reputation

and property. He clearly has learned the value of integrity and

trustworthiness. He helps in various community organizations

and serves as a mentor to others who might follow a less than

trustworthy life.

19. Petitioner had his civil rights, except the specific

authority to possess or own a firearm, restored by the Office of

Executive Clemency on August 31, 2002.

20. Petitioner did not lie, mislead, or attempt to conceal

in any way his past felony conviction.

21. Petitioner has shown remarkable achievements in

rehabilitating himself. Multiple witnesses testified as to his

many deeds and rehabilitative achievements in ameliorating his

admitted misdeeds in the fac e of actual death threats and brutal

physical attacks resulting in severe and permanent bodily

injury. Given this rehabilitation, Petitioner is entitled to be

licensed as a legal expense insurance agent.

CONCLUSIONS OF LAW

22. The Division of Administra tive hearing has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

23. The Department has jurisdiction over Petitioner's

application for a legal expense insurance agent license.

Chapter 642 , Florida Statutes.

24. Prior to a license being issued, it is merely a

privilege. Once issued, it is a property right. See Wilson v.

Pest Control Commission of Florida , 199 So. 2d 777, 779 (Fla.

4th DCA 1967).

25. As an applicant, Petitioner bears the burden of

proving entitlement to a license. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981). He bears this burden at each and every step of the

licensure proceedings. Department of Banking and Finance v.

Osborne Stern and Co ., 670 So. 2d 932, 934 (Fla. 1996).

Petitioner must show by a preponderance of the evidence that he

meets all of the relevant statutory criteria to satisfy this

burden. Id.

26. The Department has particularly broad discretion in

det ermining the fitness of applicants. Osborne , 670 So. 2d at

934; See also Astral Liquors, Inc. v. Department of Business and

Professional Regulation , 463 So. 2d 1230, 1132 (Fla.

1985)(stating that "discretionary authority is necessary for

agencies involved in the issuance of licenses and the

determination of fitness of applicants for licenses" and that

"this discretion is particularly necessary where an agency

regulates 'occupations which are practiced by privilege rather

than right and which are potentiall y injurious to the public

welfare.'")

27. The Department, under Section 626.6115, Florida

Statutes, provides:

Grounds for compulsory refusal, suspension,

or revocation of insurance agency

license. -- The department shall deny,

suspend, revoke, or refuse to continue the

license of any insurance agency if it finds,

as to any insurance agency or as to any

majority owner, partner, manager, director,

officer, or other person who manages or

controls such agency, that either one or

both of the following applica ble grounds

exist:

(1) Lack by the agency of one or more of

the qualifications for the license as

specified in this code.

(2) Material misstatement,

misrepresentation, or fraud in obtaining the

license or in attempting to obtain the

license.

28. T he Department, under Section 626.621, Florida

Statutes, provides:

Grounds for discretionary refusal,

suspension, or revocation of agent's,

adjuster's, customer representative's,

service representative's, or managing

general agent's license or

appointm ent. -- The department may, in its

discretion, deny an application for,

suspend, revoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, adjuster, customer

representative, service representative, or

managing general agent, and it may suspend

or revoke the eligibility to hold a license

or appointment of any such person, if it

finds that as to the applicant, licensee, or

appointee any one or more of the following

applicable grounds exist under circumstances

for which such deni al, suspension,

revocation, or refusal is not mandatory

under s. 626.611:

(1) Any cause for which issuance of the

license or appointment could have been

refused had it then existed and been known

to the department.

(2) Violation of any provision of t his code

or of any other law applicable to the

business of insurance in the course of

dealing under the license or appointment.

(3) Violation of any lawful order or rule

of the department.

(4) Failure or refusal, upon demand, to pay

over to any insur er he or she represents or

has represented any money coming into his or

her hands belonging to the insurer.

(5) Violation of the provision against

twisting, as defined in s. 626.9541(1)(l).

(6) In the conduct of business under the

license or appointm ent, engaging in unfair

methods of competition or in unfair or

deceptive acts or practices, as prohibited

under part IX of this chapter, or having

otherwise shown himself or herself to be a

source of injury or loss to the public or

detrimental to the publi c interest.

(7) Willful overinsurance of any property

or health insurance risk.

(8) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by imprisonment

of 1 year or more under the law of the

Unite d States of America or of any state

thereof or under the law of any other

country, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such cases.

(9) If a life agent, violation of the code

of ethics.

(10) Cheating on an examination required

for licensure or violating test center or

examination procedures published orally, in

writing, or electronically at the test site

by authorized representatives of the

examination program administrator.

Communicat ion of test center and examination

procedures must be clearly established and

documented.

(11) Failure to inform the department in

writing within 30 days after pleading guilty

or nolo contendere to, or being convicted or

found guilty of, any felony or a crime

punishable by imprisonment of 1 year or more

under the law of the United States or of any

state thereof, or under the law of any other

country without regard to whether a judgment

of conviction has been entered by the court

having jurisdiction of th e case.

(12) Knowingly aiding, assisting,

procuring, advising, or abetting any person

in the violation of or to violate a

provision of the insurance code or any order

or rule of the department.

29. An action which violates one's duties in dealing wit h

members of society may be classified as a crime of moral

turpitude. See Pearl v. Florida Board of Real Estate , 394

So. 2d 189, 191 (Fla. 3rd DCA 1981). Undoubtedly, conspiracy to

engage in racketeering involves violating one's duties in

dealings wit h a member of society and is a crime of moral

turpitude. More particularly, a judge taking a bribe violates

that judge's duty to the public and represents a crime of moral

turpitude.

30. Section 642.041, Florida Statutes, states in pertinent

part:

642.04 1 Grounds for compulsory refusal,

suspension, or revocation of license or

appointment of contracting sales

representatives. -- The department shall,

pursuant to the insurance code, deny,

suspend, revoke, or refuse to renew or

continue the license or appoint ment of any

sales representative or the license or

appointment of any general lines agent if it

finds that, as to the sales representative

or general lines agent, any one or more of

the following applicable grounds exist:

(1) Material misstatement,

misr epresentation, or fraud in obtaining or

attempting to obtain a license or

appointment.

(2) The license or appointment is willfully

used, or to be used, to circumvent any of

the requirements or prohibitions of

ss. 642.011 - 642.049.

(3) Willful mi srepresentation of any legal

expense contract or willful deception with

regard to any such contract, performed

either in person or by any form of

dissemination of information or advertising.

(4) In the adjustment of claims, material

misrepresentation to a contract holder or

other interested party of the terms and

coverage of a contract, with the intent and

for the purpose of settling such claim on

less favorable terms than those provided in

and contemplated by the contract.

(5) Demonstrated lack of fi tness or

trustworthiness to engage in the business of

legal expense insurance.

(6) Demonstrated lack of adequate knowledge

and technical competence to engage in the

transactions authorized by the license or

appointment.

(7) Fraudulent or dishonest pr actices in

the conduct of business under the license or

appointment.

(8) Misappropriation, conversion, or

unlawful withholding of moneys belonging to

an insurer or other person and received in

the conduct of business under the license or

appointment.

(9) Unlawfully rebating, or attempting to

unlawfully rebate, or unlawfully dividing,

or offering to divide, his or her commission

with another.

(10) Willful failure to comply with, or

willful violation of, any proper order or

rule of the department or willful violation

of any provision of ss. 642.011 - 642.049.

(11) Being found guilty of, or pleading

guilty or nolo contendere to, a felony or a

crime punishable by imprisonment of 1 year

or more under the law of the United States

of America or any state thereof or under the

law of any other country which involves

moral turpitude, without regard to whether a

judgment of conviction has been entered.

31. Section 642.043, Florida Statutes, states in pertinent

part:

642.043 Grounds for discretionary refusa l,

suspension, or revocation of license or

appointment of sales representatives. -- The

department may, in its discretion, deny,

suspend, revoke, or refuse to renew or

continue the license or appointment of any

sales representative if it finds that, as to

th e representative, any one or more of the

following applicable grounds exist under

circumstances for which such denial,

suspension, revocation, or refusal is not

mandatory under s. 642.041:

(1) Any cause for which granting of the

license or appointment c ould have been

refused had it been known to the department

at the time of application.

(2) Violation of any provision of ss.

642.011 - 642.049, or of any other law

applicable to the business of legal expense

insurance in the course of dealings under

the l icense or appointment.

(3) Violation of any lawful order or rule

of the department.

(4) Failure or refusal to pay over, upon

demand, to any insurer he or she represents,

or has represented, any money which belongs

to the insurer.

(5) In the conduc t of business under the

license or appointment, having engaged in

unfair methods of competition or in unfair

or deceptive acts or practices, as such

methods, acts, or practices are defined

under part IX of chapter 626, or having

otherwise shown himself or herself to be a

source of injury or loss to the public or

detrimental to the public interest.

(6) Having been found guilty of, or having

pled guilty or nolo contendere to, a felony

or a crime punishable by imprisonment of 1

year or more under the law of the United

States of America or any state thereof or

under the law of any other country, whether

or not a judgment of conviction has been

entered.

32. Section 112.011(1)(b), Florida Statutes, states in

pertinent part:

112.011 Felons; removal of

disqua lifications for employment,

exceptions. --

* * *

(b) Except as provided in s. 775.16, a

person whose civil rights have been restored

shall not be disqualified to practice,

pursue, or engage in any occupation, trade,

vocation, profession, or business for which

a license, permit, or certificate is

required to be issued by the state, any of

its agencies or political subdivisions, or

any municipality solely because of a prior

conviction for a crime. However, a person

whose civil rights have been restore d may be

denied a license, permit, or certification

to pursue, practice, or engage in an

occupation, trade, vocation, profession, or

business by reason of the prior conviction

for a crime if the crime was a felony or

first degree misdemeanor and directly

r elated to the specific occupation, trade,

vocation, profession, or business for which

the license, permit, or certificate is

sought.

33. When a person who has been convicted of a crime has

his or her civil rights restored, Section 112.011(1)(b), Florida

Statutes, acts to remove the absolute bar to licensure found in

a statute such as Section 642.041(11), Florida Statutes. Once

the absolute bar is removed by Section 112.011, Florida

Statutes, the Department must examine an applicant in an attempt

to dete rmine, in the Department's discretion, if that applicant

is fit and trustworthy as required by Section 642.041(5),

Florida Statutes. Section 112.011, Florida Statutes, does not

prevent the Department from taking into account a conviction or

plea agreement , in addition to relying upon the underlying

behavior that led to a conviction or plea agreement in

determining an applicants fitness and trustworthiness.

Padgett v. The Estate of Gilbert , 676 So. 2d 440, 444 (Fla. 1st

DCA 1996); See also Sandlin v. Cri minal Justice Standards and

Training , 531 So. 2d 1344 (Fla. 1988); See also Calhoun v.

Department of Health and Rehabilitative Services , 500 So. 2d 674

(Fla. 3rd DCA 1987).

34. In this case, Petitioner did meet his burden to show

entitlement to a license. Petitioner testified concerning his

cooperation with the FBI and Unites States Attorney's Office.

Even though Petitioner's conduct is of the most repugnant and

serious nature, given the time that has passed, the exemplary

manner in which Petitioner has conducted his life since his

crime, the fact that he now understands that integrity and

honesty should not be disregarded, and the grave danger he has

endured to maintain his bargain with the FBI, Petitioner has

rehabilitated himself.

RECOMMENDATION

Ba sed on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That a final order be entered granting Petitioner's

application for licensure as a legal expense agent in the State

of Florida.

DONE AND ENTERED this 2nd day of December , 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUN COM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of December, 2002.

COPIES FURNISHED :

John R. Forbes, Esquire

8825 Perimeter Park Boulevard

Suite 102

Jacksonville, Florida 32216

Matthew A. Nowels, Esquire

Department of Insurance

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner

Department of Insurance

The Capitol, Plaza Level 02

Tallahassee, Flor ida 32399 - 0300

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399 - 0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the dat e of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.