STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORA DELGADILLO, )

)

Petitioner, )

)

vs. ) Case No. 03-4397

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on January 21, 2004, by video teleconference with the Petitioner appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nora Delgadillo, pro se

11422 Southwest 75th Terrace Miami, Florida 33173

For Respondent: Ladasiah Jackson, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether the Petitioner's application for licensure as a resident customer representative insurance agent should be approved.

PRELIMINARY STATEMENT

On or about May 29, 2003, the Petitioner, Nora Delgadillo, filed an application for license with the Respondent, Department of Financial Services. On August 14, 2003, the Respondent issued a Notice of Denial. The agency action denied the Petitioner's application for licensure as a resident customer representative insurance agent based upon the Petitioner's failure to disclose her criminal record on the license application.

The Petitioner timely challenged the preliminary denial and filed a request for a hearing on September 6, 2003.

Thereafter, on October 30, 2003, the Respondent entered an Order that referred the matter to the Division of Administrative Hearings for formal proceedings. The matter was ultimately filed with the Division of Administrative Hearings on November 24, 2003.

In accordance with the Joint Response to Initial Order the case was promptly scheduled for hearing for January 21, 2004. At the hearing, the Petitioner testified on her own behalf. The Respondent requested and official recognition was taken of provisions of Florida law as is set forth in the record. Additionally, the Respondent's Exhibits 1-9 were admitted into evidence without objection from the Petitioner.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on March 15, 2004. Thereafter the parties had ten days to file proposed recommended orders. The Proposed Recommended Order submitted by the Respondent has been fully considered in the preparation of this Recommended Order. The Petitioner did not file a proposed recommended order. A letter filed by the Petitioner regarding a witness who did not testify in the case has not been considered in the findings reached herein.

FINDINGS OF FACT

1. The Petitioner is an applicant seeking to be licensed as a resident customer representative insurance agent.

2. The Respondent is the state agency charged with the responsibility of reviewing and issuing licenses governed by Chapter 626, Florida Statutes.

3. On or about May 29, 2003, the Petitioner filed an internet application that required responses to questions regarding the Petitioner's fitness to be licensed.

4. Among the screening questions listed on the application was the following inquiry:

   Have you ever been charged, convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered?

   
   

5. The options to the question noted above required the

   Petitioner to choose "Y" for affirmative or "N" for a negative response. The Petitioner selected "N." Thus, the Petitioner represented to the Respondent that she had not ever been charged, convicted, found guilty, or pled guilty to a crime.

6. In fact, the Petitioner was charged with a crime and did enter a plea to a crime. On May 25, 1984, the Petitioner filed a Plea Agreement wherein she agreed to plead guilty to the offense of unlawful use of a communication facility. Judge Orrick in the United States District Court, Northern District of California, then accepted the plea and found the Petitioner guilty of a violation of 21 U.S.C. Section 843(b). The Petitioner was placed on probation for a period of three years.

7. With regard to the instant case, the Petitioner admitted she failed to disclose the conviction. The Petitioner maintained her grandchildren distracted her when she was completing the form and checked the wrong response by mistake. The Petitioner did not review the error and advise the Department of the erroneous entry.

8. Additionally, the Petitioner claimed that she did not realize the screening question related to activities in all jurisdictions and thought it meant only criminal conduct in the State of Florida. Again, the Petitioner did not seek any clarification as to the question's meaning prior to submitting

   an incorrect answer. Moreover, it is determined that the question is unambiguously stated to include jurisdictions beyond the State of Florida.

9. The Petitioner believes that because she was able to successfully achieve citizenship after the criminal incident noted above she should similarly be favorably considered for the instant license. There is no evidence that supports a conclusion that the naturalization and immigration regulations for citizenship comport with the Florida laws regulating the licensure of insurance agents.

10. Moreover, the Petitioner acknowledged that she disclosed the criminal history on her application for citizenship. The omission of pertinent facts regarding her criminal history was therefore not an issue in whether or not she should achieve citizen status.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569 and 120.57(1), Fla. Stat. (2001).

12. As the applicant, the Petitioner bears the burden of proof to establish she is entitled to the license sought. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

13. In order to become licensed, the Petitioner must establish she meets all statutory criteria. Furthermore, the agency has broad discretion in determining the fitness of an applicant for licensure. Osborne at 934.

14. Pertinent to this case is Section 626.611, Florida Statutes. That section provides, in part:

    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:

    * * *

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

    * * *

    (14) Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of one 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.

    
    

15. In this case, it is undisputed that the Petitioner

    failed to accurately disclose her criminal history. That error cannot be excused except as may be provided by law. In this case the Petitioner has not established any recognizable or acceptable reason for failing to fully disclose accurate information on the license application. By rule the Department is bound to consider the Petitioner's failure a material omission. See Fla. Admin. Code R. 69B-211.042.

16. It is concluded that the Petitioner failed to fully and accurately disclose her criminal history on the license application and by so doing failed to establish she meets the criteria for licensure. Based upon the criteria applicable to this case, the Petitioner will be eligible to reapply for licensure on or about August 15, 2004. At that time she should fully and completely disclose all information pertinent to the application and verify the accuracy of the information prior to submitting it to the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order denying the Petitioner's application for licensure.

DONE AND ENTERED this 27th day of April 2004, in Tallahassee, Leon County, Florida.

S

___________________________________

J. D. Parrish 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 27th day of April 2004.

COPIES FURNISHED:

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

Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Nora Delgadillo

11432 Southwest 75th Terrace Miami, Florida 33173

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: 03-004397

Orders for Case No: 03-004397