STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK HAROLD GRANTHAM, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3196

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard pursuant to notice on March 2, 1983, in Fort Lauderdale, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter arose on the denial by the Department of Insurance of the Petitioner's application for examination for qualification as a limited surety agent.

APPEARANCES

For Petitioner: Young T. Tindall, Esquire

1244 South East Third Avenue Fort Lauderdale, Florida 33316

For Respondent: Clark R. Jennings, Esquire

Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301 ISSUES

The issues in this case are as follow:

1. Whether the conviction of a felony is disqualifying pursuant to Section 648.45(1)(e), Florida Statutes;

   
   

2. Whether the failure to report a conviction on an application is grounds for denying the application pursuant to Section 648.45(1)(c), Florida Statutes;

   
   

3. Whether, by virtue of the conviction and the failure to report the matter on his application, the Petitioner is disqualified further pursuant to Section 648.27(1), Florida Statutes.

Respondent submitted post hearing findings of fact in the form of a proposed recommended order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Petitioner, Jack Harold Grantham, is an applicant for qualification and licensure as a limited surety agent, having filed his application there for with the Department of Insurance on or about June 7, 1982.

   
   

2. By letter dated October 7, 1982, the Department denied Petitioner's application, citing as the reason for its denial numerous sections of the Florida Statutes.

   
   

3. Petitioner was born on March 1, 1942.

   
   

4. On or about October 24, 1957, when the Petitioner was 15 years of age, a court proceeding was held in the Circuit Court, Third Judicial District, in and for Suwannee County. In that proceeding, the Petitioner was charged with larceny of an automobile upon an information filed by the State Attorney. The Petitioner pled guilty and was placed upon probation for a period of five years.

   
   

5. On June 16, 1976, the Petitioner received a full pardon for the aforementioned conviction, to include the use of firearms.

   
   

6. On his application for licensure, the Petitioner answered negatively the question had he ever been charged or convicted of a felony and did not list the conviction of October 1957 on his application, based upon his receipt of a full pardon.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Department of Insurance has jurisdiction over the issuance of licenses for limited surety agents pursuant to Chapter 648 Florida Statutes. The Division of Administrative Hearings has authority to enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes.

   
   

8. The Department denied the Petitioner's application on three grounds, stated in its letter of denial dated October 7, 1981, as follow:

   
   

   Section 648.27(1), F.S., requires that the Department shall not issue a license for any individual found to be untrustworthy.

   
   

   Section 648.45(1)(c), F.S., provides that the Department may deny licensure due to a material misstatement, misrepresentation or fraud in obtaining the license, or failure to pass any examination required under this chapter.

   
   

   Section 648.45(1)(e), F.S., provides that the Department may deny licensure for conviction of a felony.

   
   

9. The facts reveal that in 1957, while the Petitioner was 15 years old, he was sentenced to five years' probation on his plea of guilty to the offense of larceny of an auto. In 1976, the Petitioner received a full pardon from the Governor and Cabinet, to include having restored his right to use firearms.

10. The grounds for denial contained in Section 648.45(1)(e), Florida Statutes, are substantially limited by the provisions of Section 112.011(1)(b), Florida Statutes. Unless some direct relationship exists between the crime and the license involved, the conviction is not disqualifying. No such relationship exists here.

    
    

11. Regarding the denial of the application based upon Section 648.27(2) and Section 648.24(1)(c), Florida Statutes, the Petitioner did not report his 1957 conviction on his application. However, in its brief the Department concedes that the Petitioner lacked any intent to misrepresent his qualification based upon his testimony concerning his pardon. The Department then argues that intent or scienter is not required. This is clearly wrong. Section 648.27(2), Florida Statutes, requires a finding that the applicant is not trustworthy.

This is directly tied to scienter. Section 648.45(1)(c), Florida Statutes, provides in pertinent part that the Department may deny licensure due to "a material misstatement of fact, misrepresentation, or fraud. . . " Again, this language addresses intentional acts designed to deceive. Scienter is required by both provisions to substantiate a denial. In the absence of intent, good cause does not exist for denial of the Petitioner's application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's application for licensure as a limited surety agent be granted.

DONE and RECOMMENDED this 25th day of April, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 25th day of April, 1983.

COPIES FURNISHED:

Young T. Tindall, Esquire 1244 South East Third Avenue

Fort Lauderdale, Florida 33316

Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building

Tallahassee, Florida 32301

The Honorable Bill Gunter Department of Insurance The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-003196

Orders for Case No: 82-003196