STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARIO ALBERT ALVAREZ, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2786

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Daniel M. Kilbride, duly-designated Hearing Officer of the Division of Administrative Hearings, on August 4, 1994, in Orlando, Florida.

APPEARANCES

For Petitioner: Dario Albert Alvarez, pro se

13329 Laver Lane

Orlando, Florida 32824

For Respondent: John R. Dunphy, Esquire

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0333 STATEMENT OF THE ISSUES

Whether the Respondent acted properly by denying the Petitioner's application for licensure as a life insurance agent.

PRELIMINARY STATEMENT

On or about March 9, 1994, the Respondent denied the Petitioner's application for licensure as a life including variable annuity and health insurance agent. On March 24, 1994, the Petitioner requested a formal hearing proceeding pursuant to Section 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings and this hearing followed.

At the hearing, the Petitioner had the burden of going forward with the evidence, but at the Hearing Officer's suggestion and by stipulation of the parties, the Respondent presented its case in chief at the opening of the hearing and was followed by presentation of the Petitioner's case in chief.

The Petitioner testified in his own behalf but called no other witnesses and presented no exhibits.

The Respondent called three witnesses and introduced the Respondent's Composite Exhibit 1, which was the Petitioner's application file, and the Respondent's Composite Exhibit 2, which was the denial letter and election of rights form. Said exhibits were admitted into evidence.

The transcript of the hearing was filed on September 6, 1994. The Petitioner has not filed proposed findings of fact. Respondent filed its proposals on September 15, 1994.

FINDINGS OF FACT

1. At all times relevant to these proceedings, the Petitioner was an applicant for licensure as a life including variable annuity and health insurance agent.

   
   

2. On or about February 2, 1994, the Petitioner was scheduled to take the life including variable annuity and health insurance agent examinations at Florida Technical College in Orlando, Florida.

   
   

3. On February 2, 1994, the Petitioner chose to take only the life including variable annuity examination. He did not receive a passing grade on this examination.

   
   

4. On February 4, 1994, the Petitioner returned to the Florida Technical College after the test had started. He attempted to use another test admittance authorization card to be able to re-test.

   
   

5. At that time, the Petitioner was advised by Tom Bastedo, Test Site Computer Operator, that he could not use the authorization card to gain admittance to the examination since the Petitioner had already taken the life including variable annuity examination and the computer scoring system would report that the examination had already been scored. The Petitioner became angry and tore up the card.

   
   

6. The Petitioner then discussed his personal situation with Tom Bastedo, which included a reference to some "emeralds" that the Petitioner owned. The Petitioner removed from his briefcase what appeared to be real emeralds and offered them as a bribe to Mr. Bastedo if he would make it look like the Petitioner had passed the examination which he had previously failed on February 2, 1994. Mr. Bastedo refused the offer and advised the Petitioner that he must reapply to be tested. The Petitioner hung around the testing site for awhile and then left the area.

   
   

7. This incident was reported immediately by Mr. Bastedo to his supervisors.

   
   

8. On or about March 9, 1994, the Petitioner's application for license as a life including variable annuity and health insurance agent was denied because of the events which had occurred at the Florida Technical College on February 4, 1994.

   
   

9. Petitioner's explanation of the events that occurred on February 4, 1994 is not credible.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. As an applicant, Petitioner bears the general burden of proving entitlement to licensure. 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 relevant criteria to satisfy this burden.

    
    

12. The Petitioner was denied licensure because of his failure to comply with several subsections of Section 626.611, Florida Statutes, which provide, in pertinent part, as follows:

    
    

    The department shall deny an application for,

    . . . the license or appointment of any applicant

    . . ., if it finds that as the applicant . . . any one or more of the following grounds exist:

    * * *

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

       * * *

       (7) Demonstrated lack of fitness or trustworth- iness to engage in the business of insurance.

       
       

13. The Petitioner was also denied licensure because of his failure to comply with Section 626.785(1), Florida Statutes, which provides, in pertinent part, that:

    
    

    "The department shall not grant or issue a license as a life agent to any individual found by it to be untrustworthy or incompetent, . . ."

    
    

14. The First District Court of Appeal has recognized the great responsibility which insurance agents must bear when engaging in their chosen profession. "Insurance is a business greatly affected by the public trust, and the holder of an agent's license stands in fiduciary relationship to both the client and the insurance company." Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984).

    
    

15. The Respondent clearly had statutory authority to deny the Petitioner's application for licensure because of his attempted bribery of a test center official. The insurance buying public of this state deserves protection from individuals who have demonstrated a lack of fitness or trustworthiness to engage in the business of insurance.

    
    

16. The Petitioner's willingness to attempt to circumvent the examination requirements of Sections 626.221 and 626.241, Florida Statutes, by offering a bribe to an examination official clearly evinces a disregard for the regulatory authority of the Department and for basic ethical principles that are a definitive indicator of the Petitioner's lack of fitness and trustworthiness. The Petitioner has failed to establish that he has met all of the relevant criteria to satisfy his burden of proving entitlement to the license which was denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer enter an Order

denying the license application of Dario Albert Alvarez for licensure as a life including variable annuity and health insurance agent.

DONE AND ENTERED this 27th day of September, 1994, in Tallahassee, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1994.

APPENDIX

Petitioner did not submit proposed findings of fact. Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1-7.

COPIES FURNISHED:

Dario Albert Alvarez 13329 Laver Lane

Orlando, FL 32824

John R. Dunphy, Esquire Division of Legal Services 612 Larson Building

Tallahassee, FL 32399-0333

Tom Gallagher

State Treasurer and Insurance Commissioner

Department of Insurance and Treasurer

The Capitol, Plaza Level Tallahassee, FL 32399-0300

Bill O'Neil, Esquire General Counsel Department of Insurance

and Treasurer The Capitol, PL-11

Tallahassee, FL 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to 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: 94-002786

Orders for Case No: 94-002786