STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIA M. SEIBERT,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 04-0682

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RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held in this case on April 21, 2004, in Bradenton, Florida, before William R. Pfeiffer, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Julia M. Seibert, pro se

3930 75th Street, West, No. 1620

Bradenton, Florida 34209

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for licensure as a resident legal expense sales representative should be approved.

PRELIMINARY STATEMENT

On September 9, 2003, Petitioner submitted an application for licensure as a Resident Legal Expense Sales Representative to Respondent, Department of Financial Services (Department). By correspondence dated January 8, 2004, the Department advised Petitioner that her application was denied. Petitioner timely contested the denial, and this cause was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner testified on her own behalf. Respondent presented no witnesses. The parties' Joint Exhibits numbered 1 through 9 were admitted into evidence.

The one-volume Transcript of the hearing was filed on May 20, 2004. Both parties submitted proposed recommended orders which have been duly considered.

FINDINGS OF FACT

1. On September 9, 2003, Petitioner filed an electronic application with the Department seeking licensure as a resident legal expense sales representative.

2. Petitioner answered "no" to the following question on that application:

   Have you ever had any professional license subjected to any of the following actions by any state agency or public authority in any jurisdiction: Revocation in Florida less than 2 years ago, Revocation in another

   state at anytime or in Florida more than 2 years ago, Suspension, Placed on probation, Administrative fine or penalty levied, Cease and desist order entered.

   
   

3. At the end of the online application, immediately above a space for the applicant's signature and in a section of the application titled "Applicant Affirmation Statement," appears the following language:

   I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief. . . .

   
   

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   Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it 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).

   
   

4. Pursuant to the instructions on the online form, Petitioner printed the "Applicant Affirmation Statement," signed it on September 15, 2003, and mailed it to the Department.

5. After receipt of Petitioner's application, the Department received records from the National Association of Insurance Commissioners, indicating that the State of Wisconsin had previously taken an administrative action against Petitioner's license. Specifically, in 1988, Ms. Seibert had

   executed a Stipulation and Order with the State of Wisconsin regarding her alleged failure to respond to a written inquiry from the Office of the Commissioner of Insurance. That Stipulation and Order provided for a $250 forfeiture payable to the State of Wisconsin.

6. The Wisconsin records ultimately obtained by the Department during the application process indicated that:

   1. In 1988, Ms. Seibert held a license with the State of Wisconsin as a permanent individual intermediary-agent. On June 13, 1988, while working for K&K Insurance Agency, Ms. Seibert wrote a letter to M.J.'s Action Cycle, Inc., whose insurance coverage was handled by Ms. Seibert's agency. The letter read, in part:

      
      

      [a]fter reviewing the Motor Vehicle Reports (MVR's) of your employees, our Underwriting Department has determined that the driving records of Bonnie M. Whitt and Marshall E. Whitt are being monitored at this time. Any additional violations will result in their being excluded from coverage under our policy.

      
      

   2. On June 28, 1988, Bonnie Whitt, one of the owners of M.J.'s Action Cycle, wrote a letter to the Wisconsin Insurance Commissioner's office requesting assistance with regard to Ms. Seibert's letter, specifically asking how far back in time their carrier could look at driving records, and at what point in time certain 1983 and 1984 tickets would be off the records.

      
      

   3. Bonnie Whitt's letter was received by the Insurance Commissioner's office on June 30, 1988. On August 24, the Commissioner's office sent a letter to K&K Insurance Agency, with a copy of Bonnie

      Whitt's letter attached, asking K&K to respond to Ms. Whitt and to provide the Commissioner's office with the response and other pertinent information. On August 26, 1988, Ms. Seibert responded to the Commissioner's office with the information requested.

      
      

   4. On September 8, 1988, the Commissioner's office wrote back to Ms. Seibert. Their letter stated:

      
      

      We are in receipt of your response dated August 26, 1988.

      
      

      Please review your letter dated June 13, 1988, addressed to . . . M.J.'s

      Cycle Action, Inc. Please explain how the statement that any additional violations will result in their being excluded from coverage under [your] policy is in compliance with s. 632.32(3), Wis. Stat.? Drivers may not be excluded in Wisconsin.

      
      

      In addition, please have Transamerica Insurance Company respond to the practice of excluding drivers.

      
      

      Pursuant to s. 601.42, Wis. Stat., your reply is requested within 15 days from your receipt of this letter.

      
      

   5. After Ms. Seibert received the September 8, 1988 letter from the Insurance Commissioner's office, she forwarded that letter to the Assistant Vice President of K&K Insurance. There was no response provided to the Wisconsin Insurance Commissioner's office within the time frame provided by that office.

      
      

   6. Under cover of a letter dated December 2, 1988, the Wisconsin Insurance Commissioner's office issued a Notice of Hearing, captioned In the Matter of Julie Seibert, Respondent, Case No. 88-C20630. According to the Notice of Hearing, the

      issue to be considered was whether Ms. Seibert's "permanent insurance intermediary agent license should be revoked, suspended, or limited in whole or in part . . ., whether a forfeiture should be ordered from Respondent . . ., and whether remedial orders should be issued. . . ." As a basis for the proceeding, the Wisconsin Insurance Commissioner's office alleged:

      
      

      1. Respondent, Julie Sweibert [sic], K&K Insurance Agency, Inc., . . . at all material time periods was a licensed Wisconsin intermediary agent (license #1026897) and subject to the jurisdiction and control of the Commissioner.

         
         

      2. On or about October 10, 1988, Respondent received a letter from the Office of the Commissioner of Insurance requesting a written reply. Respondent failed or refused to reply to this request.

         
         

      3. The allegations as set forth in paragraph (2) constitutes [sic] a violation of s. 601.42, Wis. Stat.

         
         

   7. Petitioner's employer, K&K Insurance, took full responsibility for the failure to respond to the Insurance Commissioner's office. In a letter dated December 28, 1988, the Assistant Vice President of K&K wrote the Insurance Commissioner's office, expressly noting that Petitioner had done all that was necessary to assure that the response to the written inquiry from the State of Wisconsin was made in a timely manner. He further noted that the delay which resulted in the Stipulation and Order resulted from improper handling on his part as Director of Compliance.

      
      

7. The Wisconsin Stipulation and Order signed by Petitioner is captioned In the Matter of Julie Seibert, Case No. 88-C20630, and provides that Ms. Seibert "agrees to the

   imposition of a forfeiture of Two Hundred Fifty Dollars ($250.00) payable to the State of Wisconsin." Petitioner signed the Stipulation and Order on December 27, 1988. Petitioner's employer, K&K Insurance, paid the fine.

8. In response to the Department's written inquiry about the Wisconsin administrative action during the licensing process, Petitioner indicated:

   . . . I am unable to provide an explanation as to the exact incident as I do not have records of it. My employer handled this at the time, K&K Insurance. I merely signed the document as a representative of the company as requested and their legal department handled it at that time.

   
   

9. At the hearing, Petitioner acknowledged that, based on the information she had seen during the Florida application process, her license had in fact been subject to an administrative fine by the Wisconsin Insurance Commissioner's office in 1988. She testified, however, that at the time she filled out her application, she had not recalled the incident.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

11. As the applicant, Petitioner bears the ultimate 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). Petitioner must show that she meets all of the relevant statutory criteria in order to satisfy this burden.

12. In its Notice of Denial, the Department alleged that Petitioner violated certain provisions of the Florida Insurance Code by failing to disclose her administrative licensing disciplinary history on her application. Section 642.041, Florida Statutes (2003), states:

    The department shall, pursuant to the insurance code, deny . . . the license . . . of any sales representative . . . if it finds that, as to the sales representative

    . . . any one or more of the following applicable grounds exist:

    
    

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

    
    

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    (5) Demonstrated lack of fitness or trustworthiness to engage in the business of legal expense insurance.

    
    

13. Petitioner falsely answered the licensing disciplinary history question on her application. The Department denied

    her license and alleged that Petitioner's answer constituted a "[m]aterial misstatement, misrepresentation, or fraud in

    . . . attempting to obtain the license or appointment," Subsection 642.041(1), Florida Statutes (2003), and that as a result Petitioner had demonstrated a "lack of fitness or

    trustworthiness to engage in the business of legal expense insurance." § 642.041(5), Fla. Stat. (2003).

14. In order to receive her license, Petitioner must prove that she did not have knowledge that her answer to the criminal history question was not true and that her untrue answer was unintentional. Munch v. Department of Professional Regulation,

    592 So. 2d 1136 (Fla. 1st DCA 1992). Petitioner has failed to carry her burden of proving that she did not know that her answer was false. Petitioner knew or should have known her answer was false. She physically signed the Stipulation and Order. Petitioner's answer constituted a material misstatement in attempting to obtain her license, as contemplated by Section 642.041, Florida Statutes (2003).

15. Petitioner did however demonstrate that she is fit and trustworthy to engage in the business of legal expense insurance.

16. The Department's rules do not impose a waiting period for applicants who fail to disclose their administrative disciplinary history on their application. See Fla. Admin. Code

R. 69B-211.042(4). Therefore, pursuant to Section 626.191, Florida Statutes (2003), Petitioner is eligible to reapply for licensure within 30 days subsequent to the date of denial of the application at issue.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Petitioner violated Subsection 642.041(1), Florida Statutes (2003), and denying Petitioner's application for licensure, without prejudice for her to immediately reapply as provided by Section 626.191, Florida Statutes.

DONE AND ENTERED this 9th day of July, 2004, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 9th day of July, 2004.

COPIES FURNISHED:

Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Julia M. Seibert

3930 75th Street, West, No. 1620

Bradenton, Florida 34209

Pete Dunbar, 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: 04-000682

Orders for Case No: 04-000682