vs. ) CASE NO. 83-1479
Respondent. )
This case was heard pursuant to notice on June 22, 1983, in Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose from the denial of the Petitioner's application for examination and/or licensure as a general lines agent by the Department of Insurance and Treasurer. The grounds for denial were set forth in the Department's letter of March 17, 1983, and include the following:
(e) Entering a plea of guilty to a felony in this state without regard to whether judgment of conviction has been entered by the court.
For Respondent: Clark R. Jennings, Esquire
The Department submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
The parties stipulated that except for the reasons set forth in the Department's letter of March 17, 1983, the Petitioner, Suzanne McDermott, is otherwise qualified for licensure.
On May 14, 1977, in the Circuit Court of Hillsborough County, the Petitioner pled guilty to the offense of unlawfully and feloniously delivering a certain controlled substance, to wit: cocaine. Said court withheld adjudication and imposition of sentence and placed the Petitioner on probation for seven years. After she was placed on probation, Petitioner ceased using controlled substances. By order of the court, she was evaluated by a drug treatment program, found to be not addicted to controlled substances, and has not since used controlled substances.
Petitioner's probation was terminated after two years by the recommendation of her probation officer, and she has been off probation for approximately three years.
The Petitioner completed an application for licensure as a general lines agent and submitted it to the Department of Insurance and Treasurer. She answered in the negative Question 13 of said application, which reads as follows:
Have you ever been charged with or convicted of a felony?
The Petitioner stated that she interpreted this question to ask whether she had been convicted of a felony (TR-11.) The Petitioner has not been convicted of a felony. Petitioner's testimony was credible.
When asked to clarify or amplify her status, the Petitioner employed an attorney to obtain her court records and provided them to the Department. These records were the ones introduced by the Department at the hearing.
The Petitioner has been employed for five and a half years with Poe and Associates, Inc. Tom McMullen, a vice president with Poe and Associates and the Petitioner's immediate supervisor, testified that she is a highly competent and knowledgeable employee. She has completed the educational requirements to be an underwriter. McMullen observes Petitioner's work every business day, and she is responsible for handling money on a routine basis. Her accounts are always in order, and she has never had any problem with her accounts. At the time the Petitioner engaged in the activities for which she was placed on probation, she was head teller at Southeast Bank of Tampa. These activities did not in any way involve her position with the bank.
CONCLUSIONS OF LAW
The Department of Insurance and Treasurer is charged with the licensure of general lines agents under the provisions of Chapter 626, Florida Statutes. This Recommended Order is entered pursuant to Section 120.57(1), Florida Statutes.
Section 626.611(2), Florida Statutes, requires denial of a license application for material misstatement, misrepresentation, or fraud in attempting to obtain the license. The Department argues that the Petitioner's response to Question 13 constitutes a material misstatement of her qualifications in attempting to obtain her license. In the instant case, Petitioner's conduct while on probation, in her job, and after she submitted her application indicated no intent to misrepresent her record but, as she stated, was a misunderstanding of the question. Without an intent to misrepresent her status, the Petitioner did not violate Section 626.611(2), Florida Statutes. The record does not reflect such an intent. However, Petitioner's plea of guilty to a felony involving moral turpitude requires application of Section 626.611(14) supra. This requires a complex analysis of statutory construction because of the conflicts between Section 112.011(1)(b) and Section 626.611(14), Florida Statutes.
Section 626.611(14), Florida Statutes (1981), provides as follows:
The department shall deny . . . the license of any agent . . . if it finds that as to the applicant . . . any one or more of the following applicable grounds exist:
* * *
Has been found guilty of, or has pleaded guilty or nolo contendere
to, a felony in this state or any other state which involves moral turpitude, without regard to whether a judgment
of conviction has been entered by the court having jurisdiction of such cases.
Section 626.611(14), Florida Statutes (Supp. 1982) provides that the Department shall deny the license of any agent if it finds that as to the applicant any one or more of the following applicable grounds exist:
Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases. (Emphasis supplied.)
The change of the single word indicated above is the result of a revisor's change. Therefore, the substantive language of Section 626.611(14), Florida Statutes, has been unchanged since 1971. The 1973 adoption of Section 112.011(1)(b), Florida Statutes, amended the provision of Section 262.611(14),
supra, to eliminate conviction of a felony as an absolute disqualification. Section 112.011(1)(b), Florida Statutes, provides:
(1)(b) A person whose civil rights have been restored shall not be dis- qualified to practice, pursue, or engage in any occupation, trade, vocation, profession, or business for which a license, permit, or cer- tificate is required to be issued by the state, any of its agencies or political subdivision, or any muni- cipality solely because of a prior conviction for a crime. However, a person who has had his civil rights restored may be denied a license, permit, or certification to pursue,
practice, or engage in an occupation, trade, vocation, profession, or busi- ness by reason of the prior conviction for a crime if the crime was a felony or first degree misdemeanor and directly related to the specific occupation, trade, vocation, profes- sion, or business for which the
license, permit, or certificate is sought.
Section 112.011(1)(b), Florida Statutes, when read in conjunction with Section 626.611(14), Florida Statutes, would disqualify convicted felons only when their civil rights have not been restored and when the offense of which they were convicted related to the specific business, trade or profession in which they sought licensure. Therefore, a person adjudicated guilty and convicted of a felony may obtain a license for a profession not involved with the crime which he or she committed if the person's civil rights have been restored. A person who has pled guilty and has had adjudication withheld has neither a conviction nor impairment of his/her civil rights. Once the person completes probation, his/her civil rights are once again unrestricted, as in this case.
The enactment of Section 112.011(1)(b), Florida Statutes, shows a legislative policy to limit the conditions under which a person can be denied licensure to those directly related to a profession and for those who have impediments to their civil rights. In the instant case, the Petitioner's offense did not relate to the profession for which she seeks licensure or to the business in which she was then employed. The court's probation without adjudication did not affect the Petitioner's civil rights. Therefore, she stands in a similar position as a convicted felon whose civil rights have been restored.
It must be pointed out, however, that Section 112.011(1)(b), Florida Statutes, does not address persons who have been placed on probation for felony offenses but adjudication was withheld. Section 626.611(14), Florida Statutes, specifically addressed this situation before enactment of Section 112.011(1)(b) supra. Section 626.611(14) called for denial of persons who pled guilty or nolo contendere to a felony without regard to whether a judgment of conviction was entered by the court. Therefore, if one applies this statute without considering the underlying policy enunciated by the Legislature, one cannot deny
licensure to a convicted felon but can deny licensure to a person whom the court placed on probation without adjudication. This was clearly not foreseen by the Legislature and is clearly contrary to the general policy, and the better- reasoned view would be to apply the provisions of Section 112.011(1)(b), Florida Statutes, in like manner to persons who were placed on probation without adjudication.
The Petitioner's conviction was for trafficking in cocaine. On its face, this offense does not involve the insurance industry, and the facts reveal that the Petitioner was not employed in the insurance industry at the time of the offense. Further, Petitioner's offense did not involve the business or business relationships in which she was employed. Therefore, her application must be considered on her general qualifications. This brings into question the Petitioner's reputation for honesty and integrity at this time.
Credible evidence was presented by the Petitioner that she has been employed for over five years in the same insurance office, that she handles significant sums of money on a daily basis in this office, that there has never been any problem with her or with her accounts, that she is a highly regarded employee of the business, and that by her own efforts she has obtained the specialized training and knowledge to be an insurance agent. No evidence to the contrary was introduced other than the charge referenced above upon which adjudication was withheld. The Petitioner's uncontroverted testimony was that she had ceased using controlled substances after she was placed on probation, was evaluated by a drug treatment program by order of the court and found to be not addicted to controlled substances, and has not since used controlled substances.
In the recent case of Aquino v. Deparment of Professional Regulation, Florida Real Estate Commission, 430 So.2d 598 (Fla. 4th DCA), the court held that an applicant's qualifications must be judged in light of the applicant's rehabilitation following the applicant's conviction of, or entry of a plea to, a felony offense. The objective of licensing laws is not to punish, but to protect the public by assuring the qualifications, integrity and honesty of persons engaging in regulated occupations and professions.
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Suzanne McDermott, for licensure as a general lines agent be approved.
DONE and RECOMMENDED this 8th day of September, 1983, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1983.
Ms. Suzanne McDermott 4208 Watrous Avenue
Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building
