STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JODY JACKSON, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF FINANCIAL ) SERVICES, DIVISION OF AGENT AND ) AGENCY SERVICES, )

)

Respondent. )

Case No. 04-1844

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on August 19, 2004, in Bradenton, Florida, before William R. Pfeiffer, a designated Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: No appearance.

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 to be determined is whether Petitioner's application for licensure should be granted.

PRELIMINARY STATEMENT

On or about November 11, 2003, Petitioner filed an application with Respondent seeking licensure as a legal expense sales representative. By letter dated February 5, 2004, Respondent advised Petitioner that his application was denied, and Petitioner timely requested an evidentiary hearing regarding that denial. This cause was thereafter transferred to DOAH to conduct an administrative hearing.

Petitioner did not appear at the August 19, 2004, final hearing. The ALJ issued an order on August 20, 2004, authorizing Petitioner to file sworn testimony on or before September 3, 2004. Petitioner did not respond to the Order. Respondent offered no direct testimony, and Respondent's Exhibits numbered 1 through 9 were admitted into evidence.

Respondent requested a transcript of the hearing record, which was filed with DOAH on September 13, 2004.

Respondent timely submitted its proposed recommended order, which has been considered in the rendering of this Recommended

Order.

FINDINGS OF FACT

1. Respondent, Department of Financial Services, is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2003).

2. On November 11, 2003, Petitioner filed an on-line application with Respondent seeking licensure as a Resident Legal Expense Sales Representative.

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

   Have you ever been convicted, found guilty, or pled 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?

   
   

4. At the end of the on-line 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. . . .

   
   

   * * *

   
   

   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).

5. Pursuant to the instructions on the on-line form, Petitioner printed the "Applicant Affirmation Statement," signed it on November 28, 2003, and mailed it to Respondent.

6. The criminal history records obtained by Respondent during the application process revealed that on August 4, 1987, Petitioner was arrested and charged with one felony count of Cultivation of Marijuana. A two-count information was filed against Petitioner in a case styled State of Florida v. Jody E. Jackson, Case No. 87-1871F, in the Manatee County Circuit Court. Petitioner ultimately pled nolo contendere to one felony count of Cultivation of Marijuana on January 27, 1988, and was placed on eighteen months of probation.

7. In a letter to Respondent following denial of his application, Petitioner asserted that he misunderstood the question on the application because of the language "imprisonment of one (1) year" included in the question. Petitioner indicated that because he did not serve any time in prison, he thought he was justified in answering "no" to the

   question.

   
   

   CONCLUSIONS OF LAW

   
   

8. 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).

9. 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 he meets all of the relevant statutory criteria in order to satisfy this burden.

10. In its Notice of Denial, Respondent alleged that the Petitioner violated certain provisions of the Florida Insurance Code by failing to disclose his criminal history on his application. Section 626.041, 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.

       
       

       * * *

       
       

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

       
       

       * * *

       
       

       (11) Being found guilty of, or pleading 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.

11. Section 642.043, Florida Statutes (2003), states:

    
    

    The department may, in its discretion, deny . . . the license . . . of any sales

    representative . . . if it finds that, as to the representative, any one or more of the following applicable grounds exist under circumstances for which such denial . . . is not mandatory under s. 642.041:

    
    

    * * *

    
    

    (6) Having been found guilty of, or having pled 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, whether or not a judgment of conviction has been entered.

    
    

12. Pursuant to Subsections 626.041(11) and 626.043(6), Florida Statutes (2003), an applicant's criminal history is relevant to Respondent's decision regarding the licensure of a legal expense sales representative. Respondent's application form makes it clear that the applicant's criminal history is relevant, and makes clear the consequences of failing to provide accurate answers.

13. Respondent's rules also make clear an applicant's duty with regard to disclosure of criminal history records:

    Every applicant shall disclose in writing to the Department the applicant's entire law enforcement record on every application for licensure, as required therein, whether for initial, additional, or reinstatement of licensure. This duty shall apply even though the material was disclosed to the

    Department on a previous application submitted by the applicant.

    
    

    Fla. Admin. Code R. 69B-211.042(2).

    
    

14. Petitioner's answer to the criminal history question on his application for licensure was false. Respondent denied his license, alleging that Petitioner's answer constituted a "[m]aterial misstatement, misrepresentation, or fraud in . . . attempting to obtain the license or appointment," Subsection 626.041(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." § 626.041(5), Fla. Stat. (2003).

15. Petitioner has the burden to prove that he was unaware that his answer to the criminal history question was not true and that his untrue answer was unintentional. Munch v.

    Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992). By failing to appear at the final hearing in this case, and failing to respond to the Order of August 20, 2004, authorizing the submittal of post-hearing sworn testimony, Petitioner has failed to meet his burden of proof.

16. Florida Administrative Code Rule 69B-211.042(4) provides that an applicant who has failed to disclose a Class C crime, shall wait one year to reapply for licensure. The waiting period is to run from the later of either the date

    Respondent issued its notice of denial, or the date that a previously imposed waiting period expires.

17. In the present case, Petitioner's one-year waiting period runs from the date Respondent issued its Notice of Denial. Therefore, Petitioner will be eligible to reapply for licensure February 5, 2005.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Petitioner violated Subsections 626.041(1) and 626.041(5), Florida Statutes (2003), and denying Petitioner's application for licensure, without prejudice for him to reapply as of February 5, 2005, as provided by Florida Administrative Code Rule 69B-211.042(4).

DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida.

S

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 29th day of October, 2004.

COPIES FURNISHED:

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

200 East Gaines Street Tallahassee, Florida 32399-0333

Jody Jackson

13327 Upper Manatee River Road Bradenton, Florida 34212

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

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: 04-001844

Orders for Case No: 04-001844