STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH M. SANTINO,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 03-2291

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before Daniel M. Kilbride, Administrative Law Judge, Division of Administrative Hearings, on August 19, 2003, in Orlando, Florida.

APPEARANCES

For Petitioner: Joseph M. Santino, pro se

3201 South Semoran Boulevard Number 39

Orlando, Florida 32822-2678

For Respondent: Ladasiah Jackson, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner should receive a General Lines Agent license, pursuant to Sections 626.611 or 626.621, Florida Statutes.

PRELIMINARY STATEMENT

On April 10, 2003, Petitioner submitted an application for licensure as a General Lines Agent to Respondent, Department of Financial Services. On May 22, 2003, Respondent denied Petitioner's application for licensure based upon his criminal history. On or about May 30, 2003, Petitioner filed an Election of Rights form, which stated that he contested Respondent's factual allegations and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. On June 20, 2003, the matter was referred to the Division of Administrative Hearings, and the case was set for hearing on August 19, 2003.

At the hearing, Petitioner testified in his own behalf and submitted one exhibit which was admitted in evidence.

Respondent called no witnesses but submitted seven exhibits that were entered into evidence, without objection.

A Transcript of the hearing was prepared and filed on September 4, 2003. Petitioner has not filed a proposed recommended order as of the date of this Recommended Order. Respondent filed its proposal on September 16, 2003. All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. On April 10, 2003, Petitioner applied for licensure as a General Lines Agent. On May 22, 2003, Respondent denied

   Petitioner's application for licensure due to his criminal history. On May 30, 2003, Petitioner submitted a timely Election of Rights form, which requested a hearing before the Division of Administrative Hearings.

2. On February 23, 1996, Petitioner was charged with two counts of Depositing Worthless Item with Intent to Defraud in the Circuit Court in and for Orange County, Florida.

3. On July 2, 1996, Petitioner pled nolo contendere to two counts of Depositing Worthless Item with Intent to Defraud. Adjudication of guilt was withheld by the circuit court, and Petitioner was placed on supervised probation for one year and ordered to pay restitution.

4. On March 31, 1997, Petitioner's probation was modified, and then on June 30, 1997, Petitioner's probation was terminated.

5. Petitioner testified as to the circumstances surrounding his plea of nolo contendere to Depositing Worthless Item with Intent to Defraud. He stated that a cousin gave him two post-dated checks to repay a debt and that he deposited them on different days but sought and received permission from his credit union for the immediate release of the funds, in the total amount of $1,435.00. Upon receiving the funds, he used the proceeds to make payments on other accounts. Approximately

   30 days later, the credit union informed him that the two checks were returned and marked "account closed" and demanded immediate reimbursement. Petitioner testified that he was only able to make a partial repayment, and, therefore, criminal charges were filed by the state attorney. On the advice of his counsel, he pled nolo contendere to both charges and was placed on probation. While on probation, he repaid approximately

   40 percent of the debt and fines. Petitioner believes there is an outstanding balance due of $256.00 plus interest and penalties, for which he is unable to pay because he is presently unemployed.

6. Petitioner testified that he is a trustworthy person and should be granted a waiver from the rules requiring a waiting period, following his conviction, before becoming eligible for licensure. The reason for this request is that he did not intentionally commit these crimes; that he previously worked 20 years successfully in the airline industry which required a background screening for his position; and that he has been studying hard and been offered employment by Liberty Mutual Insurance Group in Orlando, Florida, who did their own background check and approved him for employment.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings, pursuant to Sections 120.569 and 120.57(1).

8. Respondent has jurisdiction over Petitioner's application for General Lines Agent license, pursuant to Chapter 626.

9. As an applicant, Petitioner bears the general burden of proving entitlement to a license. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). He bears this burden at each and every step of the licensure proceedings. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996). Petitioner must show by a preponderance of the evidence that he meets all of the relevant statutory criteria to satisfy this burden. Respondent has particularly broad discretion in determining the fitness of applicants. Id. at 934.

10. Section 626.611 states, in pertinent part, that:

    
    

    The department shall deny an application for

    . . . the license or appointment of any applicant . . . if it finds that as to the applicant . . . any one or more of the following applicable grounds exist:

    
    

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

       
       

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

       
       

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       (14) Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

       
       

11. Section 626.621 provides, in pertinent part, that:

    
    

    The department may, in its discretion deny an application for . . . the license or appointment of any applicant . . . if it finds that as to the applicant . . . any one or more of the following applicable grounds exist under circumstances for which such denial . . . is not mandatory under Section 626.611. . . .

    
    

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    (8) Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

    
    

12. Section 626.207(1) states, in pertinent part:

    
    

    The department shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial . . . The waiting periods shall vary based on the type of conduct and

    the length of time since the conduct occurred and shall also be based on the probability that the propensity to commit illegal conduct has been overcome. The waiting periods may be adjusted based on aggravating and mitigating factors established by rule and consistent with this purpose.

    
    

13. Rule 4-211.042, Florida Administrative Code (2002), states:

    1. General Policy Regarding Conduct Prior to Licensure. The Department is concerned with the law enforcement record of applicants for the purpose of ascertaining from those records whether the person would represent a significant threat to the public welfare if licensed under Chapter 626, Florida Statutes. It is no part of the Department’s responsibilities, and the Department does not attempt, to "penalize", "discipline", or "punish" any person concerning any conduct prior to licensure.

       
       

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       1. Policy Specifically Concerning Effect of Criminal Records.

          
          

          1. The Department interprets Sections 626.611(14) and 626.621(8), Florida Statutes, which subsections relate to criminal records, as applying to license application proceedings. The Department interprets those statutes as not limiting consideration of criminal records to those crimes of a business-related nature or committed in a business context. More specifically, it is the Department’s interpretation that these statutes include crimes committed in a non-business setting, and that such crimes are not necessarily regarded as less serious in the license application context than are crimes related

       to business or committed in a business context.

       
       

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       1. Classification of Felony Crimes.

          
          

          1. The Department makes a general classification of felony crimes into three classes: A, B and C, as listed in subsections (21), (22) and (23) of this rule. The lists refer only to such crimes when they are felonies, since certain of the crimes could be misdemeanors in some jurisdictions and felonies in other jurisdictions.

             
             

          2. These classifications reflect the Department’s evaluation of various crimes in terms of moral turpitude, and of the seriousness of the crime as such factors relate to the prospective threat to public welfare typically posed by someone who would commit such a crime.

             
             

          3. The names or descriptions of crimes, as set out in the classification of crimes, are intended to serve only as generic names or descriptions of crimes and shall not be read as legal titles of crimes, or as limiting the included crimes to crimes bearing the exact name or description stated.

             
             

          4. The lists are not all-inclusive. Where a particular crime involved in an application is not listed in this rule, the Department has the authority to analogize the crime to the most similar crime that is listed. No inference is to be drawn from the absence of any crime from this list, to the effect that said crime is not grounds for adverse action under this rule.

             
             

          5. In evaluating law enforcement records, the Department shall use the highest classification into which the crime

             fits, where "A" is the highest classification.

             
             

          6. A charge in the nature of attempt or intent to commit a crime, or conspiracy to commit a crime, is classified the same as the crime itself.

          
          

       2. Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date.

          
          

          1. Class A Crime. The applicant will not be granted licensure until 15 years have passed since the trigger date.

             
             

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             (d) The Department shall not impose any waiting period pursuant to this rule where the only crime in an applicant’s law enforcement record is a single felony crime that results from the applicant’s passing of a worthless check, or obtaining property in return for a worthless check, and the amount of the check or checks involved in the single felony crime is $500 or less. However, this subparagraph shall not apply where a felony crime resulting from the applicant’s passing of a worthless check, or obtaining property in return for a worthless check is not the only crime in an applicant’s law enforcement record.

             
             

       3. Applicants With Multiple Crimes.

          
          

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          (c) Classification as "Single Crime" versus "Multiple Crimes." Multiple criminal charges arising out of the same act, or

          related acts performed over a relatively short period of time and in a concerted course of conduct, are treated by the Department as one crime for application of this rule. The Department will generally process the one most serious of the charges as if it were the only crime. However, charges describing separate but similar acts are treated as multiple crimes.

          
          

       4. Mitigating Factors.

          
          

          1. The usual waiting period specified above shall be shortened upon proof of one or more of the following as are pertinent. Where more than one factor is present the applicant is entitled to add together all the applicable mitigation amounts and deduct that total from the usual waiting period, provided that an applicant shall not be permitted an aggregate mitigation of more than 4 years for the following factors:

             
             

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             2. One year is deducted if restitution or settlement has been made for all crimes wherein restitution or settlement was ordered by the court, and proof of such restitution or settlement is shown in official court documents or as verified in a signed writing by the prosecuting attorney or probation officer.

             
             

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             6. Other Mitigating Factors. An applicant is permitted to submit any other evidence of facts that the applicant believes should decrease the waiting period before licensure is allowed based on the standard in Section 626.207, Florida Statutes.

             
             

          2. The burden is upon the applicant to establish these mitigating factors. Where the mitigating factor relates to or requires

          evidence of government agency or court action, it must be proved by a certified true copy of the agency or court document.

          
          

       5. Circumstances Not Constituting Mitigation. The Department finds that no mitigating weight exists in the provisions of Sections 626.611 and 626.621, Florida Statutes, and none will be given, for the following factors:

       
       

       (a) Type of Plea. The Department draws no distinction among types of pleas; i.e., found guilty; pled guilty; pled nolo contendere.

       
       

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       (c) The Department finds that subjective factors involving state of mind, generally have no mitigating weight.

       
       

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       (18) Effect of Varying Terminology.

       
       

       (a) With regard to the following six subparagraphs, the Department treats each phrase in a particular subparagraph as having the same effect as the other phrases in that same subparagraph:

       
       

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       1. Nolo contendere; no contest; did not contest; did not deny; no denial.

          
          

       2. Adjudication of guilt withheld; Adjudication withheld; no adjudication entered; entry of findings withheld; no official record to be entered; judgment withheld; judgment not entered.

       
       

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       1. Effect of Waiting Periods. The waiting periods established in this rule do

          not give a licensee a right to licensure after any set period of time if the Department finds additional evidence that the applicant still possesses a criminal propensity which poses an undue threat to the public welfare.

          
          

       2. Class "A" Crimes include all those listed in this subsection, where such crimes are felonies, and all are of equal weight notwithstanding from which subparagraph they are drawn. The Department finds that each felony crime listed in this subsection is

       a crime of moral turpitude.

       
       

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       (aa) Passing worthless check(s).

       
       

14. Rule 4-211.041(11), Florida Administrative Code,

    
    

    states:

    
    

    "Trigger Date" is the date an applicant was found guilty, or pled guilty, or pled nolo contendere to a crime; or, where that date is not ascertainable, the date of the charges or indictment.

    
    

15. The Florida Supreme Court has found that the definition of moral turpitude has included anything "contrary to justice, honesty, principle, or good morals." State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933); See

    also Everett v. Mann, 113 So. 2d 758, 760 (Fla. 2nd DCA 1959) ("If a crime is one involving moral turpitude it is because the act denounced by the state grievously offends the moral code of mankind and would do so even in the absence of a prohibitive statute.").

16. In this case, the crime to which Petitioner pled nolo contendere involves one of moral turpitude. Petitioner pled nolo contendere to Depositing Worthless Item with Intent to Defraud. The elements of this crime, as set forth in Section 832.05(3)(a), require a person, by act or common scheme, to cash or deposit an item in any bank with the intent to defraud. Because the elements of the crime encompass a fraud component, it can be considered a crime of moral turpitude, as envisioned by Section 626.611(4). Thus, Petitioner is in violation of Sections 626.611(14) and 626.621(8).

17. Furthermore, Section 626.611 clearly states that if a person pleads guilty or no contest to a crime involving moral turpitude, whether or not adjudication of guilt was withheld, that person shall be denied a license. Thus, it is determined that the crime to which Petitioner pled nolo contendere involves one of moral turpitude and violated Section 626.611(14), which would make a denial of Petitioner's application for licensure mandatory.

18. Further, Petitioner has not submitted sufficient mitigation to show that he is entitled to licensure. Petitioner testified as to the circumstances surrounding his plea of nolo contendere to the charges. However, this evidence is not sufficient to overcome Respondent's rules and statutes which require the denial of licensure. Although Section 626.207 and

Rule 4-211.042(12), Florida Administrative Code, explain that substantial mitigation can be used to adjust the waiting period for an applicant, Petitioner has not shown enough substantial evidence to warrant a decrease in the waiting period.

Therefore, according to Rule 4-211.042, Florida Administrative Code, Petitioner will not be eligible to apply for licensure

until 2010.

RECOMMENDATION

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

RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a General Lines Agent in this state.

DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2003.

COPIES FURNISHED:

Ladasiah Jackson, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Joseph M. Santino

3201 South Semoran Boulevard Number 39

Orlando, Florida 32822-2678

Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Honorable Tom Gallagher Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 03-002291

Orders for Case No: 03-002291