STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL SERVICES,

Petitioner,

vs.

STEVE ARLEO,

Respondent.

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) Case No. 03-2713PL

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RECOMMENDED ORDER

Notice was provided, and a formal hearing commenced on October 23, 2003, in Tallahassee, Florida, conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dana M. Wiehle, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399

For Respondent: Steve Arleo, pro se

No appearance STATEMENT OF THE ISSUE

Whether Respondent's insurance license should be suspended or revoked because Respondent failed to disclose his criminal history on his insurance license application.

PRELIMINARY STATEMENT

In an Administrative Complaint filed with the Department of Insurance on July 3, 2002, Respondent Steve Arleo (Mr. Arleo) was charged with one count of having denied having a criminal history on his application for an insurance license.

Subsequently, on July 22, 2002, Mr. Arleo requested an administrative hearing. His request was forwarded by the Department of Financial Services (Department) to the Division of Administrative Hearings and it was filed on February 6, 2003.

Subsequently, the matter was set for hearing on April 28, 2003.

Prior to the date of the hearing the Department filed a Motion to Relinquish Jurisdiction that represented that the parties had agreed to the terms of a settlement. An Order Closing File was entered May 2, 2003, which reserved to either party the right to reopen the case in the event the Department did not approve the settlement.

On July 24, 2003, the Department filed a Request to Reopen Case because Mr. Arleo failed to execute the settlement agreement proffered to him by the Department. A Notice of Hearing issued setting the case on October 1, 2003, in Pensacola, Florida. Neither party appeared on October 1, 2003, in Pensacola, Florida. On October 2, 2003, the Department filed a Motion to Conduct Hearing by Written Submission or, in the Alternative, Motion to Reschedule Hearing. In response, the

Administrative Law Judge set the hearing for October 23, 2003, in Tallahassee, Florida.

Mr. Arleo failed to appear at the hearing. The Department offered five exhibits that were admitted. No transcript was filed. The Department submitted a Proposed Recommended Order that was filed on November 3, 2003, and it was considered in the preparation of this Recommended Order. Mr. Arleo did not file a proposed recommended order.

Statutory references are to Florida Statutes (2000), unless otherwise noted.

FINDINGS OF FACT

1. The Department has authority over licensing insurance agents pursuant to Chapter 626, Florida Statutes.

2. At times pertinent Mr. Arleo was a resident of Pensacola, Florida. He holds a 220 General Lines (Property and Casualty) Agent license issued on February 27, 2001.

3. The license he received was based on a license application he filed with the Florida Department of Insurance on January 30, 2001.

4. Question three of the licensure and screening questions portion of the January 30, 2001, application inquired, "Have you ever been convicted, found guilty, or pleaded guilty or nolo

   contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or

   not adjudication was withheld or a judgment of conviction was entered?" Respondent answered this question in the negative.

5. Question four of the licensure and screening questions portion of the application inquired, "Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered?" Respondent answered this question also in the negative.

6. Following the aforementioned answers, Mr. Arleo signed his name beneath a statement that reads as follows: "Under penalty of perjury, I declare that all answers to the forgoing questions are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and or the revocation of my insurance license(s)."

7. Notwithstanding his responses on the application, the evidence indicated that Mr. Arleo, on September 30, 1986, pleaded nolo contendere to, and was adjudicated guilty of, one count of theft of property worth $100 or more, but less than

   $20,000, and one count of burglary of a structure or conveyance, in the Circuit Court of Escambia County, Case No. 86-2796. Both

   of the listed offenses are felonies in the State of Florida. Mr. Arleo was adjudicated guilty of the offenses. However, on January 6, 1987, pursuant to an Order of Modification, adjudication was withheld.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1).

9. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc.,

   396 So. 2d 778 (Fla. 1st DCA 1981). Therefore, the Department has the burden of proof in this proceeding. The standard to be met by the Department in this case is proof by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. Section 626.611 provides as follows:

    
    

    626.611. Grounds for compulsory refusal, suspension, or revocation of agent's, title agency's, adjuster's, customer representative's, service representative's, or managing general agent's license or appointment--The department or office shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, adjuster, customer representative, service representative, or managing general agent, and it shall suspend or revoke the eligibility to hold a license or appointment

    of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist:

    
    

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    (2) Material misstatement, misrepresentation, or fraud in obtaining the license or appointment or in attempting to obtain the license or appointment.

    
    

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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.

    
    

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11. Pursuant to Section 812.014(1)(a), Florida Statutes (1985), theft of property valued at $100 or more was a felony of the third degree. Pursuant to Section 775.082(3)(d), Florida Statutes (1985), a person committing a felony of the third degree could have received up to five years' imprisonment.

12. Pursuant to Section 810.02(3), Florida Statutes (1985), a burglary of a conveyance was a felony of the third degree. Pursuant to Section 775.082(3)(d), Florida Statutes (1985), a person committing a felony of the third degree could have received up to five years imprisonment.

13. Section 626.611(2), Florida Statutes, requires that a license be revoked or suspended when the Department learns that an applicant made a material misstatement on a license application. The misstatement made by Mr. Arleo with regard to whether he had pled nolo contendere to two felonies was material, since Section 626.611(14), Florida Statutes, compels suspension or revocation when a person has pled nolo contendere to crimes providing for imprisonment for more than a year. Moreover, he did this in the face of a clear warning of the requirement to provide only true answers.

14. Rule 4-231.080, Florida Administrative Code, provides penalties for licensees found guilty of violating Section 626.611 as follows:

    4-231.080. Penalties for Violation of Section 626.611.

    
    

    If it is found that the licensee has violated any of the following subsections of Section 626.611, F.S., for which compulsory suspension or revocation is required, the following stated penalty shall apply:

    
    

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    (2) Section 626.611(2), F.S. --

    
    

    1. Suspension 12 months if, had the license application been accurate, the application would have been granted, based on the Department licensing rule applicable to the application at the time the Department issued the license and the documentation in the applicant's file at the time the Department issued the license.

    2. Revocation if, had the license application been accurate, the application would have been denied, based on the Department licensing rule applicable to the application at the time the Department issued the license.

       
       

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       (14) Section 626.611(14). F.S. -- see Rule 4-231.150, F.A.C.

       
       

15. Rule 4-231.150, Florida Administrative Code, provides as follows:

    4-231.150. Criminal Proceedings.

    
    

    (1) If it is found that a licensee has violated either Section 626.611(14) or 626.621(8), F.S. the following stated penalty shall apply:

    
    

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    (b) If the licensee is not convicted of, but has been found guilty of or has 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 and is a crime involving breach of trust or dishonesty, the penalty shall be revocation.

    
    

16. Mr. Arleo pleaded nolo contendere to two offenses which were felonies and which were punishable by imprisonment for one year or more. He thereafter failed to reveal this when applying for an insurance agent's license. The appropriate

sanction pursuant to Rules 4-231.150(2)(b), (14), and 4-231.150, Florida Administrative Code, is revocation of his license.

RECOMMENDATION

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

RECOMMENDED that the Department revoke Mr. Arleo's license. DONE AND ENTERED this 21st day of November, 2003, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 21st day of November, 2003.

COPIES FURNISHED:

Steve Arleo

704 North 80th Avenue Pensacola, Florida 32506

Dana M. Wiehle, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399

Honorable Tom Gallagher Chief Financial Officer

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

Mark Casteel, General Counsel 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: 03-002713PL

Orders for Case No: 03-002713PL