STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA BETH WEINER, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1594

)

DEPARTMENT OF INSURANCE )

AND TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 30, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lisa Beth Weiner, pro se

1572 Northeast 31st Street Pompano Beach, Florida 33064

For Respondent: James A. Bossart, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a general lines insurance agent should be denied by the Department of Insurance (hereinafter referred to as the "Department") for the reason stated in the Department's January 26, 1994, denial letter?

PRELIMINARY STATEMENT

By letter dated January 26, 1994, the Department advised Petitioner that a preliminary determination had been made to deny her application for licensure as a general lines insurance agent. The letter contained the following explanation for the Department's proposed action:

Upon receipt of your application for licensure as a general lines insurance representative, the Department conducted a criminal history inquiry. Our findings revealed that you failed to divulge your complete and true criminal history. Our records indicate that on April 8, 1991, you were charged with Family Offense Concealment of Child (felony). On June 27,

1991, you pled guilty to a reduced charge (misdemeanor) and were placed on conditional release for three years.

Section 626.611(2), Florida Statutes states that the department shall deny the application

of an individual who makes a material misstatement, misrepresentation, or fraud in obtaining a license or appointment or in attempting to obtain a license or appointment. Therefore, your application for

licensure as a general lines insurance representative is denied.

Petitioner filed with the Department a completed Election of Rights form denying the allegation of wrongdoing made in the Department's denial letter and requesting a formal administrative hearing on the Department's proposed action. The matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") on March 23, 1994, for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.

At the formal hearing held in the instant case on August 30, 1994, the only witness to testify was Petitioner. In addition to Petitioner's testimony, three exhibits, Respondent's Exhibits 1, 2 and 3, were offered and received into evidence.

At the close of the evidentiary portion of the hearing on August 30, 1994, the Hearing Officer announced on the record that post-hearing submittals had to be filed within ten days. On September 7, 1994, the Department timely filed a proposed recommended order containing, what are labelled as, "findings of fact" and "conclusions of law." The Department's proposed recommended order has been carefully considered by the Hearing Officer. All of the "findings of fact" set forth in the proposed recommended order have been incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To date, Petitioner has not filed any post-hearing submittal

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. On or about October 25, 1988, a Felony Complaint was filed in

   Municipal Court, Mt. San Jacinto Judicial District, Riverside County, California (Case No. 884467) charging that Petitioner had

   
   

   committed a violation of Section 278.5, Subdivision (b) of the Penal Code, a felony, in that on or about September 1, 1988, in the County of Riverside, State of California, she, being a person having physical custody of a

   child pursuant to an order, judgment, and decree of court which granted to another person [her former husband] rights of physical custody and visitation, did willfully and unlawfully, with the intent to deprive such person of such rights

   to custody and visitation, detain, conceal, take, and entice away such child, to wit, JAMES H. RODEN [her son, who, according to court documents, was born on April 22, 1989].

   
   

2. An Amended Felony Complaint charging Petitioner with the same felony offense was filed on or about April 8, 1991.

   
   

3. Subsequently, there were plea negotiations which resulted in Petitioner entering a guilty plea to a reduced, misdemeanor charge, which the court accepted.

   
   

4. In June or July of 1993, Petitioner submitted to the Department an application for licensure as a general lines insurance agent.

   
   

5. Among the questions on the application form that Petitioner filled out were the following:

   
   

   Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude (yes or no), or a felony (yes or no), or a crime punishable by imprisonment of one (1) year

   or more under the law of any state, territory or county, whether or not a judgment or con- viction has been entered? (yes or no)

   If yes, give date(s):

   1. What was the crime?

   2. Where and when were you charged?

   3. Did you plead guilty or nolo contendre?

      
      

   4. Were you convicted?

   5. Was adjudication withheld?

   6. Please provide a brief description of the nature of the offense charged

      If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required.

      
      

6. On this portion of the form, Petitioner wrote "no" in each of the first three blank spaces and made no further entries, notwithstanding that several years prior thereto, in Mt. San Jacinto Judicial District Municipal Court Case No. 884467, she had indeed been charged with (albeit not found guilty or convicted of) a felony punishable by imprisonment of one year or more.

   
   

7. Petitioner, however, did not intend to misrepresent or conceal any information or to otherwise deceive the Department concerning her past.

   
   

8. She mistakenly believed that, in this portion of the form, the Department was inquiring only about criminal offenses involving "moral turpitude." After looking up the term "moral turpitude" in the dictionary, she determined that the crime with which she was charged in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 was not one involving "moral turpitude" inasmuch as her actions in abducting her son were intended to protect the child and were not in any way "wicked."

9. After receiving Petitioner's application, the Department conducted a records check which revealed the felony charge that had been filed against Petitioner in Mt. San Jacinto Judicial District Municipal Court Case No. 884467.

   
   

10. The Department thereupon advised Petitioner of its discovery and asked her to supply it with certain documnents that were filed in the case.

    
    

11. Petitioner complied with the Department's request.

    
    

    CONCLUSIONS OF LAW

    
    

12. Petitioner is seeking to be licensed as a general lines insurance agent.

    
    

13. The Department has indicated that it intends to deny Petitioner's application for licensure because she "failed to divulge [her] complete and true criminal history" on her application for licensure. According to the Department, such action is mandated by Section 626.611(2), Florida Statutes, which provides that the Department "shall deny" an application for licensure if it finds that there was a "[m]aterial misstatement, misrepresentation, or fraud

    . . . in attempting to obtain the license."

    
    

14. The burden was on the Department to prove by clear and convincing evidence at hearing that Petitioner engaged in such wrongdoing. See Osborne Stern and Company, Inc. v. Department of Banking and Finance, Division of Securities and Investor Protection, 19 FLW D882 (Fla. 1st DCA April 19, 1994). The Department failed to meet its burden of proof. Indeed, Petitioner affirmatively established by a preponderance of the evidence that she did not engage in the wrongful activity alleged by the Department.

    
    

15. To establish that there has been, on the part of the applicant, a "[m]aterial misstatement, misrepresentation, or fraud . . . in attempting to obtain the license," as proscribed by Section 626.611(2), Florida Statutes, the Department must show not only that the applicant provided false or misleading information regarding a material matter on the licensure application, but also that the applicant knowingly did so with the intent to deceive the Department. Cf. Charter Air Center, Inc. v. Miller, 348 So.2d 614, 616 (Fla. 2d DCA 1977), cert. denied, 354 So.2d 983 (Fla. 1977)("[t]he elements of fraudulent representation are: a false statement pertaining to a material fact, knowledge that it is false, intent to induce another to act on it, and injury by acting on the statement"); Gentry v. Department of Professional and Occupational Regulations, 293 So.2d 95, 97 (Fla. 1st DCA 1974)(statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue;" "[t]o constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally)"); Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986)("a charge of falsification of a government document [in this case, an employment application] requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency;" "[a] system of real people, pragmatic in their expectations, would not easily tolerate a rule under which the slightest deviation from the truth [on an employment application] would sever one's tenuous link to employment"); Nyren

    v. HRS, 5 FCSR para. 126 (Fla. PERC 1990)("[a] mere mistaken entry on a travel voucher does not necessarily reflect that an employee has committed fraud or has

    attempted to deceive the agency;" a showing that the employee intended to defraud or deceive the agency "is essential to sustain a charge of falsification of records").

    
    

16. While it has been clearly and convincingly demonstrated that Petitioner provided inaccurate information on her licensure application in response to the question of whether she had ever been charged with a felony punishable by imprisonment of one year or more, the evidence adduced at hearing establishes that her inaccurate response was simply the product of a misreading of the question and that, in responding to the question in the manner that she did, she had no intention of deceiving or defrauding the Department about her past.

    
    

17. Moreover, Petitioner's failure to accurately respond to the question and apprise the Department that she had been charged with a felony punishable by imprisonment of one year or more in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 involved a factual matter not material to the issue of her qualifications for licensure. An applicant for licensure as a general lines insurance agent, like Petitioner, who previously had been the subject of a felony charge that ultimately was dismissed, is not, by virtue of having once been so charged, disqualified from being licensed by the Department. See Sections 626.171, 626.611 and 626.621, Fla. Stat.; cf. Williams v. State, 308 So.2d 595, 597 (Fla. 1st DCA 1975)("the bed rock of criminal jurisprudence in this country" is the following: "An accused is presumed innocent until proven guilty beyond and to the exclusion of a reasonable doubt").

    
    

18. In view of the foregoing, the Department should continue to process Petitioner's application for licensure as a general lines insurance agent and not deny the application on the ground that she engaged in conduct proscribed by Section 626.611(2), Florida Statutes, by responding in the negative on her application to the question of whether she had ever been charged with a felony punishable by imprisonment of one year or more.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order announcing its intention to continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1994.

STUART M. LERNER

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 14th day of September, 1994.

COPIES FURNISHED:

Lisa Beth Weiner

572 Northeast 31st Street Pompano Beach, Florida 33064

James A. Bossart, Esquire Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333

Honorable Tom Gallagher State Treasurer and

Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neill General Counsel

Department of Insurance The Capitol, PL-11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

IN THE MATTER OF:

CASE NO: 92-L-542DTG

LISA BETH WEINER DOAH CASE NO: 94-1594

/

FINAL ORDER

THIS CAUSE came on before the Treasurer and Insurance Commissioner of the State of Florida for consideration and final agency action. This case began on January 26, 1994, when the Office of Treasurer, Department of Insurance (hereinafter referred to as "Department" so as to eliminate the confusion that may exist based on inconsistent manner in which the parties are identified in the various documents), advised Petitioner that a preliminary determination had been made to deny her application for licensure as a general lines insurance agent. Petitioner requested a proceeding pursuant to Section 120.57(1), Florida Statutes, which resulted in a formal hearing held on August 30, 1994, before Stuart N. Lerner, Hearing Officer, in Ft. Lauderdale, Florida.

After considering the evidence and arguments presented at the hearing, and upon reviewing the Department's Proposed Recommended Order (noting the Petitioner failed to file any posthearing submittal), the Hearing Officer issued his Recommended Order (attached hereto as Exhibit "A") on September 14, 1994, to the Treasurer and Insurance Commissioner.

Said Recommended Order included Findings of Fact, Conclusions of Law, and a Recommendation that the Department enter a final order announcing its intention to continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter.

The Department filed an exception to the Recommended Order of the Hearing Officer on September 23, 1994. The Petitioner did not file exceptions to the Recommended Order of the Hearing Officer.

RULING ON DEPARTMENT'S EXCEPTIONS

The Department's filed exception objects to the Hearing Officer's paragraph

17 of the Conclusions of Law, which held Petitioner's failure to accurately respond to the question and apprise the Department that she had been charged with a felony punishable by imprisonment of one year or more in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 involved a factual matter not material to the issue of her qualification for licensure.

The Department correctly suggests as a matter of public policy, and pursuant to Rule 4-211.031(25), Florida Administrative Code, that the Department deems all matters that are part of an applicant's law enforcement record to be a significant and material element of the application, and the omission of any part of the law enforcement record is a material misrepresentation or material misstatement in and of itself. The fact that the felony charge was ultimately dismissed [or the individual pled to a lesser charge] and thus would not have served as an independent basis for denial of the application, is not relevant to the issue of proper disclosure and does not make the original omission any less material. Therefore, to the extent discussed herein, the Department's exception is granted and the Hearing Officer's paragraph 1 of the Conclusions of Law, is hereby REJECTED.

Upon consideration of the foregoing and the entire record and being otherwise fully advised in the premises, it is ORDERED:

1. The Findings of Fact of the Hearing Officer are adopted.

2. The Conclusions of Law of the Hearing Officer are adopted, except as to paragraph 17 as noted above.

   
   

3. The Recommendation of the Hearing Officer is accepted.

THEREFORE, the Department shall continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter.

NOTICE OF RIGHTS

Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla.R.App.P. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order.

DONE and ORDERED this 28th day of November, 1994.

TOM GALLAGHER

Treasurer, Insurance Commissioner and State Fire Marshal

COPIES FURNISHED:

Stuart M. Lerner Hearing Officer

1230 Apalachee Parkway

Division of Administrative Hearings The DeSoto Building

Tallahassee, FL 32399-1550

Lisa Beth Weiner

52 Northeast 31st Street Pompano Beach, FL 33064

James A. Bossart, Esquire Division of Legal Services 612 Larson Building

Tallahassee, FL 32399-0333

Docket for Case No: 94-001594

Orders for Case No: 94-001594