STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL JOHN ROBERTO, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0788

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, P. Michael Ruff, held a hearing in the above styled case on May 25, 1989, in Pensacola, Florida.

APPEARANCES

FOR PETITIONER: Paul J. Roberto, Pro Se

22 Country Club Road Shalimar, Florida 32579

FOR RESPONDENT: James A. Bossart, Esquire

Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

STATEMENT OF THE ISSUES

This cause concerns a dispute as to whether the petitioner was properly denied application for examination as a general lines insurance agent by his exclusion from the examination because of alleged cheating thereon.

PRELIMINARY STATEMENT

This cause arose upon the Department of Insurance's (Department) denial of Paul John Roberto's application for examination and licensure as a general lines insurance agent in the state of Florida. That denial was accomplished by letter of January 13, 1989 on the grounds that the petitioner had allegedly violated various provision of Chapter 626, Florida Statutes. Specifically the denial was due to the Petitioner's alleged cheating on the examination for general lines insurance agents licensure, which was held on January 7, 1989, at Pensacola, Florida.

After receiving the denial notification, Petitioner requested a formal administrative proceeding pursuant to Section 120.57(1), Florida Statutes. He was accorded that right and the cause was transferred to this forum and ultimately to the undersigned Hearing Officer and this proceeding ensued.

The case came on for final hearing as noticed. The Petitioner presented his own testimony at the hearing. The Department presented the testimony of three witnesses, Kathy Chadwick, Marilyn Archer and Francis Kelly, all of Pensacola, Florida. The Department also offered six exhibits, numbered one through six, all of which were admitted into evidence. The Petitioner offered no exhibits.

The parties elected to order a transcript of the proceedings and to avail themselves of the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. Those proposed findings of fact are addressed in this recommended order and once again in the appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is an applicant for Licensure by examination as a general lines, property, casualty and miscellaneous lines insurance agent in Florida. The Petitioner sat for the general lines examination, which was held at Pensacola Catholic High School in Pensacola, Florida on January 7, 1989.

   
   

2. Mary Chadwick and Marilyn Archer were employed by the examination administrator, the Educational Testing Services, as test proctors. Both were present at Pensacola Catholic High School on January 7, 1989, at the examination site and administered the general lines examination.

   
   

3. Prior to the start of the examination, candidates for the examination were verbally advised by Mary Chadwick, the test proctor, not to consult any course materials or other written materials during the taking of the examination. Miss Chadwick then read a prepared statement, prior to the start of the examination, warning the candidates that any incidents of cheating, including giving or receiving help, copying or retaining test questions, would result in disqualification and dismissal from the examination. The test candidates were admonished not to use dictionaries, books, pamphlets, slide rules, calculators, calculator watches, compasses, rulers or papers of any kind during the test. Anyone found using these items would be disqualified from licensure and dismissed from the examination. The examinees were then admonished that if any such materials were in their possession that they should place them under their chair and that only the test booklet and a pencil should be on their desks.

   
   

4. During the course of the examination, an examination candidate, Mr. Francis Kelly, observed that the Petitioner was referring to certain 3" X 5" note cards on top of his desk, concealed beneath his hand. The Petitioner was observed by Mr. Kelly to look at the note cards and then write in his examination booklet. Mr. Kelly observed this happening on repetitive occasions during a period of several minutes. Having formed the opinion that the Petitioner was cheating on the examination, Mr. Kelly left the examination room and reported the incident, and his observations, to the "hall proctor" outside the examination room.

   
   

5. The hall proctor informed Marilyn Archer, the test supervisor, that a gentleman had told her that another candidate was cheating on the examination. The hall monitor and Ms. Archer then walked into the examination room and, together with Ms. Chadwick, they observed, through a window in the door, the Petitioner surreptitiously referring to the note cards. After observing the Petitioner for 2 or 3 minutes, Ms. Chadwick went into the room and confronted him. The Petitioner denied having any materials or cards in his possession.

   Ms. Archer then entered the room and asked the Petitioner for the note cards. The Petitioner denied having any cards, but ultimately relinquished them to Ms. Archer. He relinquished two note cards with information handwritten on them.

   The two note cards surrendered contained information pertaining to the 240 hour property and casualty insurance course, which was relevant to the insurance subject matter of the examination. They would definitely be of assistance to a candidate taking the general lines examination, which the Petitioner was then taking when he had the cards in his possession and was observed by Mr. Kelly and the other witnesses.

   
   

6. The Petitioner was then dismissed from the examination and his test materials and the two note cards were collected. Ms. Chadwick and Ms. Archer then reported this incident involving the Petitioner to the Educational Testing Services by telephone and followed up with a written "irregularity report." Mr. Kelly, Ms. Chadwick, Ms. Archer all testified to the above-referenced effect. None of them had ever met the Petitioner before January 7, 1989. There has been no demonstration they have any bias or that any other reason exists for finding their testimony to be of dubious credibility.

   
   

7. The Department thereafter denied the application of the Petitioner for admission to the examination and licensure, by its letter of denial dated January 13, 1989. The Petitioner requested a formal proceeding to contest that denial and in due course this proceeding ensued.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding, pursuant to Section 120.57(1), Florida Statutes, (1987)

   
   

9. A license applicant has the burden of establishing entitlement to that license pursuant to Rule 28-6.008(3), Florida Administrative Code. See also James Allan Reynolds v. Department of Insurance and Treasury, 10 FALR 251 at 254.

   
   

10. The Department's letter of denial of January 13, 1989, denied the Petitioner's application on the alleged grounds that the Petitioner had violated four provisions of Chapter 626, Florida Statutes: Section 626.611(1), 626.611(7), 626.621(10) and 626.731. These statutes provide as follows:

    
    

    626.611 Grounds for Compulsory Refusal, Suspension, or Revocation of Agent's, Solicitor's, or Adjustor'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 adjustor 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.

    * * *

    (7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

    * * *

    621.621 Grounds for Discretionary Refusal, Suspension, or Revocation of Agent's, Solicitor's, or Adjustor's License or Service Representative's, Supervising or Managing General Agent's, or Claims Investigator's Permit - The Department may at its discretion, deny, suspend, revoke or refuse to renew or continue the license of any agent, solicitor, or adjustor 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 as to the applicant, licensee, or permittee, any one or more of the following applicable grounds exist under circumstances for which denial, suspension, or revocation, or refusal is not mandatory under s. 626.611:

    * * *

    (10) Cheating on an examination required for licensure.

    * * *

    626.731(1) The Department shall not grant or issue a license as general lines agent to any individual found by it to be untrustworthy or incompetent.

    * * *

    
    

11. It has been established by unrebutted evidence that the Petitioner clearly violated the foregoing statutory provisions by bringing the note cards into the examination. It has been established that he referred to the note cards in the course of answering the examination questions. The material on the note cards has been established to be relevant to the material upon which the Petitioner was being examined. The above findings of fact clearly demonstrate that the Petitioner was engaged in cheating on the application for the general lines agents license as particularly described in the above findings of fact. Thus it has been proven that the Petitioner violated Section 626.621(10), Florida Statutes. This is sufficient grounds for discretionary denial of licensure. It also demonstrates that the Petitioner clearly lacks one of the qualifications for issuance of the insurance license; namely, the qualification of trustworthiness under Section 626.611(7), Florida Statutes. His failure to meet the qualification of trustworthiness under this section mandates denial and carries over to the consideration under Section 626.731, Florida Statutes, quoted above, which mandatorily forbids the Department from issuing a license to any individual found to be untrustworthy.

    
    

12. Thus under the above-cited authority and the findings of fact made above, the Department can descretionarily refuse to issue the license, and not admit the Petitioner to examination for that license, and can mandatorily deny

licensure under the provisions cited last above. Accordingly, it having been established that the Petitioner is in violation of the above cited statutory provisions, denial of his application for licensure is appropriate.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore

RECOMMENDED, that the Department deny the Petitioner, Paul John Roberto's, application for licensure as a general lines - property, casualty, and miscellaneous lines agent.

DONE AND ENTERED this 19th day of September, 1989, in Tallahassee, Leon County, 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 19th day of September, 1989.

APPENDIX Case NO. 89-0788

PETITIONER'S PROPOSED FINDINGS:

The Petitioner did not actually propose any findings of fact, but rather sought to discuss the testimony of the three witnesses presented against him by the Department. In essence, the Petitioner contends that witness Kelly could not have seen the evidence of cheating from his seating position and that the other witnesses based their testimony concerning his possession of the incriminating note cards during the taking of the examination, and his use of them for that purpose, on hearsay. If this could be deemed to constitute a finding of fact, it is rejected because it does not comport with the preponderant weight of the evidence, which establishes that the report of Mr.

Kelly merely prompted the examination supervisors, who testified, to go and observe Mr. Roberto in the act of cheating themselves. Their testimony is certainly not hearsay, and in any event, Mr. Kelly also testified, thus the hearsay contention by the Petitioner is groundless. The Petitioner proposed no actual findings of fact so there are none to rule upon in addition to this.

RESPONDENT'S PROPOSED FINDINGS:

The Respondent's proposed findings of fact 1 through 15 are accepted.

COPIES FURNISHED:

Paul J. Roberto, Pro Se

22 Country Club Road Shalimar, Florida 32579

James A. Bossart, Esquire Office of Legal Services

412 Larson Building Tallahassee, Florida 32399-0300

Hon. Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Docket for Case No: 89-000788

Orders for Case No: 89-000788