STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD J. MILLER, )

)

Petitioner, )

)

vs. ) Case No. 04-0882

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on May 21, 2004, with the parties appearing by telephone from Fort Pierce, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Edward J. Miller, pro se

6205 Northwest West Deville Circle Port St. Lucie, Florida 34986

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Petitioner, Edward J. Miller, is entitled to be licensed as a resident life and variable annuity insurance agent.

PRELIMINARY STATEMENT

This case began on January 22, 2004, when the Respondent, Department of Financial Services (Department or the Respondent), issued a Notice of Denial to the Petitioner, Edward J. Miller. The notice provided that the Petitioner's application for licensure as a life and variable annuity agent was being denied because he had failed to disclose an arrest for the charge of driving under the influence (DUI), a misdemeanor. Thereafter, the Petitioner timely challenged the license denial and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on March 15, 2004.

At the hearing, the Petitioner testified in his own behalf and presented the testimony of Tracy Tarach. The Department offered Respondent's Exhibits 1-12 that were received in evidence. The transcript of the proceeding was filed with the Division of Administrative Hearings on June 3, 2004. Thereafter, the Respondent timely filed a Proposed Recommended Order that has been considered in the preparation of this Recommended Order. The Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. The Petitioner, Edward J. Miller, is employed at Washington Mutual Bank. His supervisor is Tracy Tarach.

2. It was Ms. Tarach's desire that Mr. Miller become licensed as a resident life and variable annuity insurance agent. To that end, she and Mr. Miller filed the necessary papers with Washington Mutual Bank to approve the application process as well as the course to become licensed. The process of having the bank issue the check to cover the licensing procedure was timely. Additionally, the Petitioner could only be scheduled for the licensure class and completion of the licensing process when the bank took favorable action on the request.

3. Accordingly, for this Petitioner the licensing process was dragged out over the course of several months. In January 2003 the Petitioner completed the state application for licensure but did not transmit it to the state. He submitted the request to the bank for course approval and planned to submit the paperwork when it was successfully completed. At that time, the Petitioner did not have any criminal charges pending against him and the answers noted on the application were all correct and truthful.

4. In February 2003 the Petitioner was stopped for DUI. The next workday the Petitioner went to his supervisor and fully disclosed the arrest as well as the charge. The Petitioner made no effort to hide the arrest from his employer and the employer considers the Petitioner a valuable employee,

   despite the incident.

   
   

5. In March 2003 the Petitioner was formally charged with DUI, a misdemeanor.

6. Meanwhile, the bank approved the Petitioner's request to take the course for licensure. The forty-hour course in another work location required the Petitioner to travel to the school site and reside in a hotel for a week while the course work was completed. Obviously the Petitioner's supervisor was willing to invest the costs of licensure school and accommodations for the Petitioner with full knowledge of the Petitioner's pending criminal matter.

7. After successfully completing the licensure course in April 2003 the Petitioner submitted the license application to the state. He failed to double-check the forms. He failed to correct an answer that was now incorrect. That is, he failed to fully disclose the arrest.

8. Subsequently, the criminal case went to hearing, and the Petitioner entered a plea and was placed on probation. The resolution of the DUI charges was completed after the application was submitted.

9. Section 3 of the license application asks several screening questions of applicants for licensure. Applicants are required to answer "yes" or "no", depending on the information sought. In this case, it is undisputed that the

   Petitioner failed to correct his answers to the questions posed in Section 3.

10. More specifically, the Petitioner failed to truthfully disclose that he had been arrested for DUI. This failure was an oversight on the Petitioner's part, and not intended to deceive the Department.

11. The answers should have been corrected when the Petitioner amended the application form to include the information regarding his completion of the Gold Coast School of Insurance class on April 11, 2003. He did not do so.

12. When the Department reviewed the Petitioner's application and discovered the false answer, it took action to deny the licensure request. That denial was entered on January 22, 2004. A notice of the denial was provided to the Petitioner and he timely challenged the proposed action.

13. On October 31, 2003, the Petitioner completed all of the terms of his court-ordered probation and the entire DUI incident was put to rest.

    CONCLUSIONS OF LAW

    
    

14. 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.

15. As the applicant for licensure, the Petitioner bears the burden of proof in this case to establish he is entitled

    to the license sought. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). As

    is more fully explained below, he has met that burden.

    
    

16. The Respondent asserts the following provisions of law support the denial of Petitioner's request for licensure. Section 626.611, Florida Statutes (2003), provides, in pertinent part:

    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:

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

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

       * * *

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

       
       

17. The Petitioner has passed the requisite course and

    has demonstrated he is knowledgeable in the area of licensure sought. By more than a preponderance of the evidence he has shown himself to be fit and trustworthy to engage in the business of insurance. Additionally, he does not lack any qualification to become licensed or appointed for licensure in the area sought.

18. The Petitioner's sole indiscretion was the failure to correct his application and to submit it with the updated information regarding his DUI. This was a simple, unintentional error and readily admitted. Moreover, more than a preponderance of evidence established that the Petitioner was candid with his employer regarding the underlying incident, that his employer supported him throughout the process of making application for the license, and that his employer continues to support his efforts in this regard. If the Petitioner's character and trustworthiness were truly suspect, the bank would not continue to support his efforts to become licensed.

19. It is concluded that the Petitioner has waited over a year to become licensed (his application was submitted in April of 2003), that he is of good character, that the underlying criminal conduct is not such that the Petitioner is barred as matter of law from becoming licensed, and that he successfully completed all that was required of him to satisfy

the terms of his probation. His unintended oversight in the submittal of his application should be excused.

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 granting the Petitioner's application for licensure.

DONE AND ENTERED this 30th day of July, 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 30th day of July, 2004.

COPIES FURNISHED:

Honorable Tom Gallagher Chief Financial Officer

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

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

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

200 East Gaines Street Tallahassee, Florida 32399

Edward J. Miller

6205 Northwest West Deville Circle Port St. Lucie, Florida 34986

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: 04-000882

Orders for Case No: 04-000882