STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM JEFFERY MISHKO, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1254

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on May 15, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Gerald Rutberg, Esquire

Post Office Box 977 Casselberry, Florida 32707

For Respondent: Rainell Y. McDonald, Esquire

Richard W. Thornburg, Esquire Department of Insurance

Room 413-B Larson Building Tallahassee, Florida 32399-0300

Background and Procedural Matters

On March 2, 1987, the Department of Insurance (agency) denied Petitioner's (Mishko) application for qualification as a general lines agent based on his plea of nolo contendere to a felony and his failure to disclose that fact on his examination application. Mishko responded with a timely request for hearing, and this proceeding commenced.

At the final hearing the agency presented no witnesses; three composite exhibits were admitted. Mr. Mishko testified in his own behalf and did not submit documentary evidence.

Both parties submitted post-hearing proposed recommended orders. These have been carefully considered and specific rulings on the proposed findings of fact are found in the attached appendix.

ISSUE

The issue in this proceeding is whether William Jeffery Mishko's application for qualification as general lines agent should be denied for the reasons stated in the letter of denial:

1. nolo contendere plea to a felony

   
   

2. failure to reveal that plea on the application, based on the provisions of subsections 626.611(1)(2) and (7) F.S. and subsection 626.621(8) F.S.

FINDINGS OF FACT

1. William Jeffery Mishko, 1649 Algonquin Trace, Maitland, Florida, submitted his application, dated December 26, 1986, to the Department of Insurance, seeking qualification to take the examination for licensure as a general lines agent or solicitor.

   
   

2. At the time that he filled out the application he was attending an insurance school, Hilda Tucker School, in Ft. Lauderdale, Florida. It was the first day of class and the students were told to get their applications in for the examination. He hurriedly completed the form and mailed it.

   
   

3. A series of questions on the form address criminal history of the applicant. Those questions and Mishko's responses are:

   
   

   8. Have you ever been charged with a felony?

   Yes if YES give date(s): 5/23/84

   1. What was the crime? controlled Stubstnce[sic]

   2. Where and when were you charged?

      Winter Springs C.C. Tuskawilla

   3. Did you plead guilty or nolo contendere? No

   4. Were you convicted? No

   5. Was adjudication withheld? x

   6. Please provide a brief description of the nature of the offense charged. [writing struck through]

   controlled substance

   If there has been more than one such felony charge, provide an explanation to each charge on an attachment. Certified copies of the information or indictment and Final Adjudication for each charge is required. ---No

   
   

   Mishko testified that he started to explain the whole story on 8.(f), but there was insufficient space. He did not attach an additional sheet and did not attach a copy of the court documents as they were not available to him at the time.

   
   

   Later, the agency returned his application to him with the incomplete items circled. The question at 8.(c) was circled, as well as others relating to residence and employment in the past five years.

   
   

   Mishko then went to the Seminole County courthouse, obtained the certified copies and sent them to the agency.

   
   

4. The court records reveal that on January 13, 1986, in case no. 85-999 CFC, in circuit Court of Seminole county, William Jeffery Mishko entered a plea

   of nolo contendere to possession of a controlled substance. Adjudication was withheld and he was placed on probation for three years.

   
   

   Mishko had been arrested on May 23, 1985, with two friends. He said that he was at work at the golf and country club and two friends came to see him with a small amount of cocaine. The police found them in the golf cart shed and arrested them for possession of cocaine and paraphernalia. The information, dated August 12, 1985, alleges a violation of section 893.13 F.S..

   
   

5. Mishko attributes the errors in the answers on the form itself to his haste to get the application filed so he could take the examination as soon as he finished the course in Ft. Lauderdale. When he followed up the application with the certified court records, he did not amend the application form with the accurate date of arrest or with the correct answer to 8.(c).

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding. Section 120.57(1) F.S.

   
   

7. In proposing to deny Mishko's application, the agency invokes the following provisions of chapter 626, F.S., relating to the regulation of insurance agents and agencies: 626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representative's, supervising or managing general agent's, or claims investigator's permit. The department shall deny, suspend, revoke or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:

   
   

   1. Lack of one or more of the qualifications for the license or permit as specified in this code.

   2. Material misstatement, misrepresentation, or fraud in obtaining the license or permit or in attempting to obtain the license or permit.

      * * *

      1. Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

         * * *

         626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representative's, supervising or managing general agent's, or claims investigator's permit.--

         The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it may suspend or revoke

         the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee 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. 626.611:

         * * *

      2. Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state, without regard to whether a

      judgment of conviction has been entered by the court having jurisdiction of such cases.

      * * *

      
      

8. Section 120.60 F.S. requires that an agency examine an application for licensure, notify the applicant of any apparent errors or admissions and request additional information.

   
   

   Mishko's answers to the questions in paragraph 8. of the form were ambiguous on their face. They show he was charged but not convicted, nor did he plead guilty or nolo contendere, yet he put a check-mark on the space indicating adjudication was withheld. These errors and Mishko's responsive follow-up with the certified court records are consistent with Mishko's claim that he was not deliberately withholding information. His misstatements or misinformation were neither material nor fraudulent. At the most, the obvious lack of thoughtful preparation of the application belies Mishko's expressed desire to pursue this profession.

   
   

9. Section 120.60 F.S. requires that an agency, in denying a license, shall state with particularity the grounds or basis for denial. The agency in its denial letter made no mention of the applicant's record of arrests for other than the Seminole county felony. Those records, stamped "received" by the Department of Insurance, Bureau of Licensing, in January and February 1987, (Petitioner's composite exhibit C) are not deemed relevant in this proceeding.

   
   

10. The charge to which Mishko plead nolo contendere is a felony. Subsection 893.13(1)(e) F.S.. The agency has the discretion to deny his application under the above-cited provision of subsection 626.621(8) F.S.

    
    

11. As applicant, Mishko has the burden in this proceeding of demonstrating his fitness for licensure. Balino v. Department of HRS, 348 So 2nd 349 (1st DCA Fla. 1977). He is still on probation and has presented no testimony of his recent activities that would mitigate his grave disregard for the law in the felony incident in 1985. He has failed to prove his trustworthiness and fitness.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That the Department of Insurance enter a final order denying William Jeffery Mishko's application based upon subsection 626.621(8) F.S.

DONE and RECOMMENDED this 20th day of July, 1987 in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1254

The following constitute my specific rulings on the parties proposed findings of fact.

Petitioner's Proposed Findings of Fact

1. Adopted in paragraphs #1 and #2.

2. Adopted in paragraph #2.

3. Adopted in paragraphs #3 and #4.

4. Rejected as irrelevant.

Respondent's Proposed Findings of Fact

1. Adopted in paragraph #3.

2. Adopted in paragraph 4.

3. Rejected as irrelevant. See paragraph 4, Conclusions of Law.

7-8. Adopted in paragraph #5.

9-11. Adopted in substance in paragraph #4.

COPIES FURNISHED:

Honorable William Gunter State Treasurer and Insurance Commissioner The capitol, Plaza Level

Tallahassee, Florida 32399-0300

Don Dowdell, Esquire General counsel

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Gerald Rutberg Esquire Post Office Box 977 Casselberry, Florida 32707

Rainell Y. McDonald, Esquire Richard W. Thornburg, Esquire Department of Insurance

Room 413-B Larson Building Tallahassee, Florida 32399-0300

Docket for Case No: 87-001254

Orders for Case No: 87-001254