New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Howard Mills
Acting Superintendent

The Office of General Counsel issued the following opinion on February 09, 2005, representing the position of the New York State Insurance Department.

RE: Permissibility of Issuing an Insurance Agent's License to an Individual with a Misdemeanor Conviction

Question Presented:

May the Superintendent of Insurance issue a property/casualty insurance agent's license to an individual with a prior misdemeanor conviction of forgery in the third degree?

Conclusion:

There is nothing in the New York Insurance Law that would prevent the Superintendent from issuing an insurance agent's license to such an individual. The Superintendent may issue the license if, in his judgment, he finds the individual to be trustworthy and competent to act as an insurance agent and the individual has met the prerequisites for licensing.

Facts:

The inquirer's insurance agency has an applicant that is interested in becoming licensed as a property/casualty insurance agent. However, this applicant committed forgery when he was 19 years old and was tried as an adult. He was subsequently convicted of forgery in the third degree, a misdemeanor under N.Y. Penal Law § 170.05. The inquirer would like to know whether the Superintendent of Insurance may issue an insurance agent's license to such an individual, assuming that the individual has met all of the prerequisites for licensing.

Analysis:

The Superintendent of Insurance has broad discretion in licensing individuals as insurance agents. N.Y. Ins. Law § 2103(h) (McKinney Supp. 2005) provides, in relevant part, as follows:

(h) The superintendent may refuse to issue any insurance agent's license if, in his judgment, the proposed licensee or any sub-licensee is not trustworthy and competent to act as such agent, or has given cause for the revocation or suspension of such a license, or has failed to comply with any prerequisite for the issuance of such license.

Thus, the Superintendent may issue an insurance agent's license to the individual that the inquirer described if, in his judgment, he finds the individual to be trustworthy and competent to act as an insurance agent, and the individual has met all the prerequisites for licensing.

Additionally, please note that an application for licensing submitted by an individual with a prior criminal conviction is also governed by N.Y. Correct. Law § 752 (McKinney 2003) which provides, in relevant part, as follows:

No application for any license or employment, to which the provisions of this article are applicable, shall be denied by reason of the applicant's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless:

(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or

(2) the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

In making its determination, the Department must also consider the factors enumerated in N.Y. Correct. Law § 753(1) (McKinney 2003), including the time which has elapsed since the occurrence of the criminal offense, the age of the person at the time the crime was committed and what bearing the prior criminal offense will have on the individual's fitness or ability to perform one or more duties or responsibilities of employment or licensure.

Pursuant to N.Y. Correct. Law § 753(2) (McKinney 2003), the Department would also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which would create a presumption of rehabilitation in regard to the offense specified therein.

Lastly, the inquirer also expressed concern regarding whether there is anything that her agency needs to do to get the individual licensed and whether there are any monetary implications to the agency assuming that she hires him. Pursuant to the Insurance Law, the agency is not required to do anything else to get the individual licensed and there are no additional costs to the agency.

For further information you may contact Senior Attorney Pascale Jean-Baptiste at the New York State City Office.