Judges: MARVIN E. CHAVIS
Agency: Department of Financial Services
Latest Update: Sep. 06, 1983
Summary: This case involves the issue of whether the Petitioner's application for examination and/or licensure as an Ordinary Life, including Disability, agent should be approved by the Department of Insurance pursuant to Chapter 626, Florida Statutes. At the formal hearing, the Petitioner testified on his own behalf and also called as a witness Mr. Ray Bryant. The Respondent called no witnesses. The Petitioner offered and had admitted into evidence five exhibits and the Respondent offered and had admitt
Summary: This case involves the issue of whether the Petitioner's application for examination and/or licensure as an Ordinary Life, including Disability, agent should be approved by the Department of Insurance pursuant to Chapter 626, Florida Statutes. At the formal hearing, the Petitioner testified on his own behalf and also called as a witness Mr. Ray Bryant. The Respondent called no witnesses. The Petitioner offered and had admitted into evidence five exhibits and the Respondent offered and had admitted into evidence four exhibits. There were also two joint exhibits offered by both oarties and admitted into evidence. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that the findings of fact herein are consistent with those proposed findings of fact, they were considered and adopted by the Hearing Officer. In those instances where the findings of fact herein are inconsistent with the proposed findings of fact submitted by the parties, they were considered by the Hearing Officer and rejected as not being supported by the evidence or being unnecessary to a resolution of this cause.Petitioner denied license because of worthless check violation and false application to get license. Restitution and no felony. Allow application.
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vs. ) CASE NO. 83-590
Respondent. )
126. The face of the check reveals that the account was in the name of "Donald
R. Shelton" and "Vickie Shelton". Petitioner was sentenced to six months imprisonment which was suspended for two years, two years probation, and payment of restitution, and court costs. This conviction occurred in Case Number 80 Cr 4469, 30th District Court, Baywood County, North Carolina.
Also, on October 29, 1980, Petitioner pled guilty to six other worthless check charges. Court records reveal the following information with regard to those convictions.
Case No. 3205 involved Check No. 107 written to Bilo in the amount of $60.57 on March 1, 1980, and returned not paid because of insufficient funds.
Case No. 80 Cr 2639 arose out of Check No. 3 written to Ingles on February 22, 1980, in the amount of $37.49 and returned not
paid because of insufficient funds;. This check is a counter check without the name and address of Petitioner and Vickie Shelton printed on it. The check number is written on the check rather than pre-printed.
Case No. 80 Cr 4053 arose out of Check No. 108 written on March 4, 1980, to Gas & Groceries in the amount of $21.30 and returned not paid because of insufficient funds.
Case No. 80 Cr 4054 involved Check No.
105 written on March 1, 1980, to Gas & Groceries in the amount of $23.60 and returned not paid because of insufficient funds.
Case No. 80 Cr 6027 involved Check No.
120 written to Potts Texaco on June 7, 1980, in the amount of $25.50 and returned not paid because of account closed.
Case Nos. 80 Cr 2639, 80 Cr 4053, 80 Cr 4054, and 80 Cr 6027 were consolidated and for the conviction in these four cases, Petitioner was sentenced 30 days imprisonment suspended for two years with two years probation and restitution on each check and court costs in each case. This sentence was to begin following completion of the sentence in Case No. 80 Cr 4469 discussed in Paragraph 7 above. In Case No. 3205, Petitioner was sentenced to six months imprisonment, suspended for two years with two years probation and payment of restitution and court costs. All of the checks in these cases were written on the same account. This account was a joint account with Petitioner and his ex-wife as signatures on the account.
On January 9, 1981, the Petitioner pled guilty and was convicted of worthless checks. That charge arose out of Check No. 109 written on March 4,
1980, to John Graham's in the amount of $259.98 and returned not paid because of insufficient funds. He was sentenced to pay court costs plus restitution.
On February 16, 1981, the Petitioner pled guilty to the crime of worthless checks. The charge involved Check No. 101 written to Sky City on February 28, 1980, in the amount of $33.58 and returned not paid because of insufficient funds. Petitioner was convicted and sentenced to pay court costs plus restitution.
On February 25, 1981, after making full restitution, the two year probation was terminated by the Court. Each of the worthless checks discussed above was written in February, March, or June, 1980. During the period August, 1979, to July, 1980, the Petitioner was unemployed. During this period, Petitioner was also going through a hotly contested divorce and checks were being written on the joint account by his now ex-wife without his knowledge. During this time, Petitioner did not make an effort to determine the balance in his checking account.
The Petitioner has been convicted of the following traffic offenses:
September 24, 1970: Speeding.
September 18, 1970: Violation of quiet
zone ordinance.
September 23, 1971: Expired inspection sticker.
October 19, 1972: Driving under the influence.
Petitioner was 17, 18, and 19 years old when the offenses occurred.
From April, 1977, to August, 1979, the Petitioner was employed by Globe Life Insurance Company in the State of North Carolina. Until August 1, 1979, Petitioner was a licensed Life and Accident and Health Agent in the State of North Carolina. The Petitioner is an agent in good standing with the Department of Insurance of the State of North Carolina. He had no complaints made against him or his license while selling insurance for Globe Life. He was a good, reliable agent while with Globe Life.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Sections 626.611 and 626.621 set forth the grounds for denial of an application for licensure as an insurance agent in the State of Florida. In the instant case, the Department of Insurance has based its denial upon the following four subsections:
Section 626.611(2): Material misstatement, misrepresentation, or fraud in obtaining the license or permit, or in attempting to obtain same.
Section 626.611(7): For demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
Section 626.621(1): For any cause for which issuance of the license or permit could have been refused had It then existed and been known to the department.
Section 626.621(6): If in the conduct of business under the license or permit, he has engaged in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part VII of this chapter, or has otherwise shown himself to be a source
of injury or loss to the public or detrimental to the public interest.
The Department of Insurance relied upon basically four types of information in denying the Petitioner's application: (1) failure to disclose he had been charged with a felony, (2) his record of issuing worthless checks, (3) his record of traffic offenses, and (4) the filing of a previous false application.
Where, as here, an application for licensure is initially denied upon such grounds as provided in Chapter 626, Florida Statutes (1982), the applicant bears the burden of proving entitlement to the license. See, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In the instant case, the Petitioner has sustained that burden.
The Petitioner denied ever having been charged with or arrested for a felony. The only evidence offered to rebut this testimony was a one line entry in the Index to Criminal Actions. (See Respondent's Exhibit 2.) This index failed to establish that the individual charged with "larceny of auto" was, in fact, the Petitioner or that even if it were the Petitioner, that he was formally charged or arrested, or that the offense charged was a felony. The index itself establishes that the charge was nolle prossed on October 19, 1972. The preponderance of the evidence established that Petitioner has not been convicted or charged with a felony and, therefore, did not fail to disclose this information on the application.
The worthless check convictions resulted from eight checks written by Petitioner in February, March, and June, 1980. The Petitioner was in the midst of a divorce and both he and his ex-wife were writing checks on the joint account. The Petitioner was given two years probation in October, 1980, on these charges and that probation was terminated on February 25, 1981, after Petitioner made full restitution. The Petitioner was also unemployed during the time period the checks were written. The sentences given by the Court on these check offenses is consistent with the mitigating and extenuating circumstances related by the Petitioner.
The traffic offenses occurred when Petitioner was 17 to 19 years old and other than the driving under the influence, were not serious traffic offenses. These traffic offenses occurred over eleven years ago and are too isolated in time to serve as a grounds for denial of an application for a license as an insurance agent.
The more difficult issue is the previous application filed in March, 1981, which petitioner admits contains false information. The application was filled out and signed by the Petitioner. He did not sign before a notary and specifically told the individual from American Republic Insurance Company who
interviewed him that he did not want the application filed until they heard from him. He had no intention of accepting a job with American Republic and never intended that the application be filed. This explanation is born out and supported by the fact that Petitioner, after being notified that the application had been filed and that he was approved to take the examination, did not take the exam or pursue the application in any way. The present application contains true and accurate information.
Section 626.611(2), Florida Statutes, contemplates an individual utilizing a false application to actually attempt to obtain a license. The Petitioner did not attempt to obtain a license utilizing the March, 1981, application. This application was, in fact, filed by the American Republic Insurance Company without his knowledge. The false information was placed on the application because the Petitioner felt awkward telling the representative of American Republic that he was not interested in his company. The interview was arranged by a close friend. The Petitioner had no intention of going to work for American Republic and so did not want his family, friends, and business associates in North Carolina bothered by a background investigation. It was very careless and a show of poor judgment to fill out a false application and sign it. However, the statute contemplates actually using the application to attempt to obtain a license and this the Petitioner did not do.
Substantial weight was given to the fact that Petitioner was a licensed life insurance agent in the State of North Carolina for two and a half years and remains an agent in good standing with that state. During this two and a half years, the Petitioner had no complaints against him and he was a good, reliable agent for Globe Life Insurance Company.
For the reasons stated above, the traffic offenses, worthless check convictions, and the false application, do not, under the circumstances, show "lack of fitness or trustworthiness to engage in the business of insurance."
The traffic offenses were committed over ten years ago when the Petitioner was a teenager. Subsequent to that time, he was licensed by the State of North Carolina as an insurance agent and remains an agent in good standing with that state. The check offenses all fall within a short time frame and full restitution was made. These checks resulted from a lack of communication between Petitioner and his ex-wife during the pendency of their divorce proceeding and not from any intentional wrongdoing on the part of Petitioner.
The March, 1981, application shows poor judgment but it was not filed by the Petitioner or used by him personally in an attempt to obtain his license.
Petitioner has then, by a preponderance of the evidence, shown that he should not be denied licensure under Section 626.611(7) or Section 626.621(1), Florida Statutes (1982).
Section 626.621(6), Florida Statutes (1982), applies to acts or practices that occurred "in the conduct of business under the license or permit". In as much as the Petitioner has never been licensed in the State of Florida as an insurance agent, the acts discussed above could not have been committed "in the conduct of business under the license or permit". Section 626.621(6) may not then serve as a basis for denial of the application of Petitioner. See Hartnett v. Department of Insurance, 406 So.2d 1180 (Fla. 1st DCA 1981).
That the Petitioner's application for licensure be granted conditioned upon passing the required examination and payment of the necessary fees.
DONE and ENTERED this 15th day of August, 1983, in Tallahassee, Florida.
MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983.
