STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL JAMES BRADLEY,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 04-2027

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 26, 2004, in Tampa, Florida, before Fred L. Buckine, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel James Bradley, pro se

Apartment 1118

16606 Palm Royal Drive Tampa, Florida 33647

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner, Daniel James Bradley's, application for licensure as a resident life including variable annuity and health insurance agent should be

denied for the reasons stated in Respondent, Department of Financial Services', Notice of Denial dated April 26, 2004.

PRELIMINARY STATEMENT

On or about January 3, 2004, Petitioner, Daniel James Bradley, filed an application with Respondent, Department of Financial Services (the "Department"), seeking licensure as a resident life including variable annuity and health insurance agent.

On April 26, 2004, the Department informed Mr. Bradley, by letter, that his application was denied. Mr. Bradley timely requested an administrative hearing contesting the denial.

On June 9, 2004, the Department referred the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge.

On June 10, 2004, the Initial Order was entered, and on June 11, 2004, Respondent's response to the Initial Order was filed.

On June 18, 2004, a Notice of Hearing and Order of Pre- Hearing Instructions were entered. The Notice of Hearing scheduled the final hearing for July 26, 2004, in Tampa, Florida.

On July 12, 2004, Mr. Bradley's prior counsel filed a letter regarding testimony he intended to give at the final hearing.

On July 15, 2004, the parties filed a Joint Witness List, and a Notice of Service of Exhibits was filed by Respondent.

At the final hearing on July 26, 2004, Respondent's ore tenus motion to amend the Notice of Denial by changing the phrase "plead not guilty" to "plead nolo contendere," confirmed by Respondent's Composite Exhibit 5 (a copy of the information filed in the Circuit Court of Sarasota County, Florida), was granted.

Petitioner testified on his own behalf and offered no exhibits into evidence. Respondent offered no direct testimony and called Petitioner to testify on rebuttal. Respondent's Exhibits 1 through 12 were admitted into evidence.

On August 18, 2004, the one-volume Transcript was filed.

On August 18, 2004, and August 20, 2004, respectively, Respondent and Petitioner filed Proposed Recommended Orders that have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to the authority granted in Chapter 626, Florida Statutes (2004).

2. On January 3, 2004, Mr. Bradley filed an on-line application with the Department seeking licensure as a resident life including variable annuity and health insurance agent.

3. The on-line application form included the following question:

   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?.

   
   

   Mr. Bradley answered "No," which was a false answer.

   
   

4. The Department conducted an internal investigation during the application process, and the criminal history check obtained by the Department revealed that in 1995 Mr. Bradley was charged with two counts of Obtaining Property for Worthless Check(s) (one check in an amount over $150 and one check in an amount less than $150).

5. On May 31, 1995, in State of Florida v. Daniel J.

   
   

   Bradley, Case No. 94-2473F, in the Circuit Court in and for Sarasota County, Florida, Mr. Bradley appeared before Judge Robert B. Bennett and entered a plea of nolo contendere to the charge of Obtaining Property For a Worthless Check (over $150), which is a third degree felony in violation of Subsection 832.05(4)(a), Florida Statutes (1995). Judge Bennett withheld adjudication of guilt and imposed a fine and court cost in the amount of $250 that was paid by Mr. Bradley.

6. Mr. Bradley testified that during the 1995 period, he was in the midst of a domestic dispute that was finalized in a dissolution of marriage, when he wrote two checks to Sears. He explained further that at the time the checks were written, sufficient funds were in the joint checking account at the bank, but his then-estranged wife withdrew all bank funds without his knowledge or consent resulting in the overdrafts.

7. Explaining his "no" response to the criminal history question on his on-line licensure application form, Mr. Bradley asserted a lack of fully understanding the (intended) meaning of the term "punishable by imprisonment of one (1) year or more." Mr. Bradley testified that he "did not know, and had no reason to know, [or be concerned] that the worthless check charge to which he pled nolo contendere was punishable by imprisonment of one year or more," even though he knew the crime was a third- degree felony.

8. Continuing, Mr. Bradley explained in detail his ongoing domestic entanglement then, as well as his financial obligations now. Mr. Bradley explained that he has undertaken the obligation to care for his parent(s) and his need for income to pay for his children's education. In effect, Mr. Bradley offered an "excusable neglect and a lack of knowledge" explanation for the "no" answer on his on-line licensure application form.

9. Mr. Bradley earnestly insisted that it was not his "intent" to mislead, conceal, or lie about the criminal background question. He explained in detail that he "did not understand nor was he advised by his attorney, Susan Maulucci, or the Sarasota County Circuit Court that any offense that he had been accused or pled guilty to was punishable by a term of incarceration of one or more years." In conclusion, Mr. Bradley stated, "[I]f I had previous knowledge of such information I would never have answered incorrectly. If the question had addressed a felony charge punishable by one or more years, I would have certainly answered yes based on the assumption of a felony being the subject of the question not the period of punishment."

10. It appears from his post-hearing submittal that he was under the impression that the term "felony" is missing from the question and that by the omission, he was somehow misled. The blame-shifting inference Mr. Bradley sought is that it was the omission by the Department to include the word "felony" in its application form that misled him. This suggestion is rejected.

11. Mr. Bradley's explanation becomes even more suspect when one considers: his knowledge and experience as a military police officer; at the time he signed the plea document, it was clear that he was facing up to five years in prison for the crime(s) with which he was charged; when arrested on both

    misdemeanor and felony check charges, he spent the night in jail; and finally, he signed two bonds, one for the misdemeanor charge and a separate bond for the felony charge before he was released from jail.

12. Mr. Bradley was individually and personally responsible for the accuracy of his answer. His misrepresentation of the truth by answering "no," if not intentional, supports the inference of a reckless or careless disregard as to the truth of the matter asserted.

13. At the time he answered "no" on his application form, Mr. Bradley knew, without a doubt, that he had pled "no contest" to a felony worthless check charge in the Sarasota County Circuit Court in Florida. During his court appearance, he was identified and was personally informed by the presiding judge that he faced a felony charge, and he agreed to enter his plea of nolo contendere to that felony charge. On May 31, 1995, in open court, Mr. Bradley signed an "Acknowledgement and Waiver of Rights" form that contained in paragraph 1, the following statement: "I am pleading to the charge of worthless check

    (2 counts), and I understand the maximum penalty provided by law is five (5) years prison." (Emphasis added.) After the court accepted his plea, sentenced him, and imposed court costs,

    Mr. Bradley signed the court's acknowledgement reflecting the

    disposition of the proceeding. Only after completion of the foregone process was Mr. Bradley free to leave the courtroom.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Subsection 120.57(1), Florida Statutes (2004).

15. Petitioner bears the burden of proving his entitlement to the license and must show that at the time of his application he met all the relevant statutory criteria. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

16. The Department's Notice of Denial alleged that Petitioner violated a provision of the Florida Insurance Code by failing to disclose his criminal history on his insurance license application. Section 626.611, Florida Statutes (2003), states, in pertinent part, that:

    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.

       
       

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

       
       

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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.

       
       

17. An applicant's criminal history is relevant to the Department's decision regarding the licensure of an insurance agent, and the application form makes that point clear. Subsection 626.621(8), Florida Statutes (2003), provides, in pertinent part, that:

    The department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, adjuster, customer representative, service representative, or managing general agent, and it may 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 under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s. 626.611:

    
    

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    (8) 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, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

    
    

18. The Department's rules also make clear an applicant's duty with regard to disclosure of one's criminal history. Florida Administrative Code Rule 69B-211.042(2)1/ states:

    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.

    
    

19. Petitioner provided a false answer regarding his criminal history on his license application. In doing so, Petitioner made a "[m]aterial misstatement, misrepresentation, or fraud in . . . in attempting to obtain the incense or appointment." See § 626.611(2), Fla. Stat. (2003). By providing false information, Petitioner demonstrated a "lack of

    fitness or trustworthiness to engage in the business of insurance." See § 626.611(7), Fla. Stat. (2003).

20. With the authority to deny a license application based on the criminal history of the applicant, the Department in this case denied the license application because of Petitioner's failure to disclose (material misrepresentation) that criminal history.

21. Florida Administrative Code Rule 69B-211.042(4)(b), in pertinent part, provides that:

    (b) 1. If an applicant fails to fully and properly disclose the existence of law enforcement records, as required by the application, the application will be denied and a waiting period will be imposed before the applicant may reapply for any license.

    
    

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    1. The waiting period shall begin on the later of:

       
       

       1. The date that the Department issues a letter or notice of denial of the application, or

          
          

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    2. Waiting periods shall be calculated as follows:

    
    

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    c. Omission of any arrest, pending criminal charges, pre-trial intervention, or other part of the law enforcement record required to be

    disclosed on the application, add

    1 year.

    
    

22. Pursuant to the previously-stated Rule, Petitioner's one-year waiting period before reapplying for licensure runs from the date of the Department's Notice of Denial, April 26, 2004, to April 26, 2005, at which time Petitioner shall be eligible to reapply for licensure.

RECOMMENDATION

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

RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein filed by Petitioner, without prejudice, for Petitioner to reapply as provided in the Florida Administrative Code Rule 69B-211.042(4).

DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 31st day of August, 2004.

ENDNOTE

1/ As a result of the merger of the Department of Insurance and the Department of Banking and Finance, the numbering of the Department's rules has changed. All rules formerly contained in Chapter 4 of the Florida Administrative Code are now located in Chapter 69B. Other than the chapter designation, the Rule numbers are the same.

COPIES FURNISHED:

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

200 East Gaines Street Tallahassee, Florida 32399

Daniel James Bradley Apartment 1118

16606 Palm Royal Drive Tampa, Florida 33647

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: 04-002027

Orders for Case No: 04-002027