STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STEVEN ALLEN MILLER, )
)
Petitioner, )
)
vs. ) CASE NO. 95-3363
) DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on October 16, 1995, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Thomas F. Woods, Esquire
1709-D Mahan Drive Tallahassee, Florida 32308
For Respondent: Allen R. Moayad, Esquire
Department of Insurance Division of Legal Services
200 East Gaines Street Tallahassee, Florida 32399-0333
STATEMENT OF THE ISSUES
The issues to be resolved in these proceedings concern whether the Petitioner is entitled to licensure as a non-resident life and health insurance agent in Florida in consideration of a prior history involving a criminal charge concerning a felony of moral turpitude, as well as his alleged failure to disclose prior disciplinary actions against his licenses by Florida and Wisconsin, which arose out of the same felony charge.
PRELIMINARY STATEMENT
This proceeding was initiated by a denial letter issued by the Respondent on June 13, 1995. In that document, the Petitioner was notified that his application for licensure as a non-resident life and health insurance agent in Florida had been denied. The reason for the denial, as stated in the letter of that date, was his criminal history and prior disciplinary action by the State of Minnesota, Department of Insurance, and by his alleged failure to disclose, on his application for Florida licensure, the prior disciplinary action by the Florida Department of Insurance related to his prior felony charge. On or about October 11, 1995, some five days prior to hearing, without objection, the Department amended that denial letter and added an allegation that the
Petitioner had failed to disclose a prior disciplinary action by the Wisconsin Department of Insurance. Thus, the denials were contested, and the cause came on for hearing as noticed on the issues referenced above, concerning denial of the licensure application which had been filed November 29, 1994.
During the course of the hearing, the Petitioner used the testimony of the Petitioner, as well as Shirley Kerns, the official of the Department charged with making the free-form decision to deny the application. The Petitioner offered six exhibits which were admitted into evidence. The Respondent offered the testimony of the same witnesses and offered Exhibits 1, 2 and 3, which were admitted into evidence.
Upon conclusion of the proceeding, the parties elected to transcribe it and to submit proposed recommended orders. The proposed findings of fact contained therein have been addressed in this Recommended Order and specifically again in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Petitioner is a licensed insurance agent, who has been practicing as an insurance agent for 25 years in Minnesota, Florida and Wisconsin. His Florida licensure was suspended for a period of two years by Final Order of the Department entered on November 25, 1985. That regulatory situation is described in more detail below.
The Petitioner has now applied for licensure in Florida as a non- resident life and health insurance agent. He primarily practices insurance in the State of Minnesota, his native state. He did, however, practice in Florida from approximately 1980 to 1985 but relocated to Minnesota after his prior Florida disciplinary experience.
The Respondent is an agency of the State of Florida charged with enforcing the licensure standards for insurance. Those standards are embodied in Chapter 626, Florida Statutes. The Respondent is charged with insuring that licensed applicants and licensed agents comply with those standards and with conducting enforcement actions and imposing penalties up through and including licensure revocation or denial where agents or applicants fail to comply with Florida's insurance law.
Upon the convening of the prior disciplinary action against the Petitioner in 1984, the Petitioner was licensed as an ordinary life and disability insurance agent, doing business as Steven Miller Insurance and Associates in Daytona Beach, Florida.
On June 2, 1983, the Petitioner was charged, by criminal information in Case No. 83-2219-CC, with two felony counts, Count One being presentation of a fraudulent insurance claim in violation of Section 817.234, Florida Statutes, and Count Two being a charge of grand theft of the second degree, in violation of Section 812.014, Florida Statutes.
On January 5, 1984, the Petitioner entered a plea of nolo contendere to the felony offense of grand theft, second-degree felony. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit in and for Volusia County, Florida (Circuit Court) accepted that plea and placed the Petitioner on three years of supervised probation, but withheld adjudication of guilt and imposition
of sentence. On July 18, 1985, the Petitioner was discharged early from his probation, after successfully completing 18 months of the original three-year probationary period.
In June of 1982, the Petitioner's wife's sister and her husband came to Florida to visit the Petitioner and his wife for a period of time. The Petitioner's brother-in-law and wife were having severe financial problems. The Petitioner owned a 24-foot boat at the time, which he kept stored in a vacant lot, behind a chain-link fence, in the vicinity of his home. Several days after his brother-in-law and sister-in-law returned to their home in Minnesota, the Petitioner noticed that his boat was missing. On June 29, 1982, he reported the boat as being stolen to the Daytona Beach Police Department. Several months after reporting the theft, he filed an insurance claim seeking reimbursement on his insurance policy for the theft of the boat.
Approximately one year later, the boat was found in the possession of his brother-in-law, who had returned to his home in Minnesota shortly before the boat was reported stolen. In order to save himself from prosecution, the brother-in-law claimed that the boat had been given to him by the Petitioner and that he had not stolen it. Consequently, the Petitioner was charged with one count of insurance fraud, a felony, and the other charge referenced above involving second-degree grand theft, also a felony.
According to the Petitioner, he presented adequate proof that he had not stolen the boat and the insurance fraud charges were immediately dropped.
He was then informed, by his counsel in the criminal matter, with the agreement of the state attorney and the court, that, in effect, if he pled nolo contendere to the grand theft charge, the criminal matter could be put behind him with a minimum of anguish and expense. In return for such a pleading, he was assured that it would effectively be the same as pleading not guilty, that his insurance license would not be affected by the matter or the result, and that by so pleading, he could avoid the straining of his marriage because of the family relationship involved in the underlying facts. Consequently, the Petitioner pled nolo contendere to the second criminal charge involving second-degree grand theft. Adjudication and sentencing were withheld, and he was placed on three years of supervised probation, which he successfully completed in 18 months.
Thereafter, on or about October 25, 1984, an Administrative Complaint was filed by the Department against the Petitioner in Case No. 84-L-360LS (DOAH Case No. 84-4124), which ultimately went to hearing before a Hearing Officer of the Division of Administrative Hearings. The issue in that proceeding concerned whether disciplinary measures provided for in Sections 626.611 and 626.621, Florida Statutes, should be imposed for the plea of nolo contendere to a felony offense involving moral turpitude. The Hearing Officer, after finding the facts as delineated above, entered a Recommended Order finding that the offense charged did involve moral turpitude and that the petitioner in that case had met its burden of proof of showing a violation which could stand independently of whether or not there had been an adjudication of guilt. Accordingly, the Hearing Officer recommended that a Final Order be entered suspending the Petitioner's licensure for a period of two years and, by Final Order entered on November 25, 1985, the Department adopted the Recommended Order as the agency's Final Order and imposed a suspension of licensure for a period of two years from that date. Thus, the suspension terminated on or about November 25, 1987.
On his application for licensure, dated November 29, 1994, in response to the question concerning whether his application or licensure had ever been suspended, etc., the Petitioner answered "yes". The question requires no
explanation of the circumstances on the application form. The Petitioner, however, gratuitously, drew an arrow to the margin of the form and indicated that he had been suspended in Minnesota in 1987 briefly, for two weeks, for accidentally "overlapping" a medicare supplement policy too long. He wrote no such explanation concerning his Florida suspension occurring in 1985.
The Petitioner, however, established that he knew, of course, that the Department already had knowledge of that suspension, it having entered a Final Order, still in its records, suspending him for two years, as referenced in the above Findings of Fact. Moreover, the Petitioner was under the impression that since that suspension arose out of the criminal activity with which he had been charged and which record had been sealed by order of the Circuit Court, he need not respond in the affirmative to that question concerning the Florida suspension. That is the same reason he answered "no" to the question concerning any plea or conviction involving a crime of moral turpitude. This belief was based upon the fact that the sealing order of the Circuit Court, pursuant to Section 943.059, Florida Statutes, allowed him to deny that those criminal charges, and the probation imposed, had ever occurred to any employing or licensing entity not specifically enumerated in that statute. The Department is not specifically enumerated in that statute as an agency to which the protection of the sealed record for the Petitioner does not apply. Thus, the Petitioner had no intent to defraud or misrepresent, in a material way, his entitlement to licensure by his answers on the application concerning the earlier Florida prosecution.
In any event, in the free-form stage of this matter, before the first denial letter and the amended denial letter were filed and served on the Petitioner, the matter had been discussed with agency personnel and thus disclosed.
On or about September 11, 1987, the Petitioner's license in the State of Minnesota was suspended for four weeks for purported improper "overlapping" and duplicating of medicare supplement coverages, in violation of Minnesota statutes. The Petitioner established that that was an inadvertent violation.
It occurred due to an administrative and record-keeping error in his office. He acted immediately to correct the error, and the licensure authorities in Minnesota were satisfied with his efforts to correct the error. No member of the public suffered any pecuniary or other loss as a result, nor did the Petitioner gain any pecuniary or other benefit by that mistake. It was simply a clerical or administrative error due to inadvertent mistake.
On or about September 28, 1989, the Petitioner was disciplined by the State of Wisconsin, Department of Insurance, and ordered to pay a fine based upon a settlement negotiation. This occurred because of his failure to disclose on his application for licensure as an "intermediary" in Wisconsin his previous Florida disciplinary action concerning the criminal matter.
Indeed, the Petitioner did not disclose that to the State of Wisconsin. The reason he did not, as he established by unrefuted testimony, was that by the time he applied for licensure in Wisconsin, the circuit court's order sealing the record concerning the criminal matter had been entered. By his lay understanding of the law concerning sealing of his record, he was allowed to decline to disclose anything concerning that criminal matter or any matter based upon it. In his mind, this included no longer being under a requirement to disclose the Florida Department of Insurance disciplinary action which arose out of that criminal matter. His belief in this regard was further buttressed by the fact that the Department itself, upon his request, issued a
"letter of clearance" for him to supply to the Wisconsin Department of Insurance. This document depicted that he was in good standing in terms of his licensure in the State of Florida (this was after the lapse of his two-year suspension period) and that there was no impediment, as far as Florida was concerned, to his licensure in the other jurisdiction. Under these circumstance, the Petitioner did not believe that he had a legal obligation to disclose to Wisconsin the matters concerning the Florida suspension. Upon learning of it, the State of Wisconsin, Department of Insurance, initiated a disciplinary action. Upon negotiation and stipulation, he was required to pay a
$500.00 fine.
When the Petitioner was asked about any suspensions of his licensure, on the application form at issue, and since the form and the question do not provide for any written explanation, he did not disclose the Wisconsin action leading to his fine. This is because, in the first place, it was not a suspension. Moreover, he still believed that, due to the circuit court's order sealing the record, since the Wisconsin action grew out of the Florida disciplinary and criminal matter, it was all related and he was not required to disclose it. Further, he did not believe that he had actually had a disciplinary action imposed in the State of Wisconsin. This is because the
$500.00 fine, which he agreed to pay, was based upon a "stipulation and order." This document clearly recites upon its face (Petitioner's Exhibit 3) that the respondent (the Petitioner herein) denied the allegation and merely wanted to resolve the matter to avoid further litigation and expense. It states that the stipulation and order did not constitute the adjudication of any issue of fact or law and would not be admissible as such in any proceeding. Thus, because no determination of any guilt had been made regarding him by the State of Wisconsin and because the $500.00 fine he paid was merely the result of a settlement negotiation to prevent litigation, the Petitioner did not deem that he had been subjected to actual disciplinary action and certainly not suspension by the State of Wisconsin.
Thus, it has not been established that he failed to reveal the Wisconsin matter on his application through any intent to misrepresent or defraud the Department in Florida, in a material way, in an attempt to gain licensure. This is particularly deemed to be the case because if he had been merely seeking to conceal what he actually believed was a disciplinary action occurring in Wisconsin, it would be illogical to assume that he would disclose the Minnesota action. He freely and voluntarily disclosed the Minnesota action, however, which he knew to be a brief suspension of his license.
The Department, by the amended denial letter, is also seeking to deny licensure based upon his having pled nolo contendere to the criminal charge, as referenced above. This is so even though the Department, when it could have revoked his license for that same ground in 1985, chose the two-year suspension as an appropriate penalty for that criminal infraction, which resulted from a negotiated plea of convenience. In 1985, when the Final Order was entered, only two and one-half to three years had elapsed after the infraction is supposed to have occurred. The Department, however, without any significant time for rehabilitation from the effects on his license-worthiness from the purported criminal infraction, implicitly took the position that revocation of licensure was not appropriate and only a two-year impairment to licensure entitlement was warranted.
Approximately a decade has now elapsed since the prior Florida discipline and approximately 12 to 13 years since the basis of that discipline (the criminal matter). The Petitioner has substantially shown his
rehabilitation from the effects of that incident. The criminal matter itself did not involve any proof of actual guilt of immoral conduct but, rather, was a negotiated plea for the convenience of the Petitioner and the avoidance of the expense and anguish of trial. Moreover, the Petitioner has been a licensed agent in Minnesota, Florida, and Wisconsin for some 25 years and has never had any disciplinary altercation other than those mentioned in the evidence and this Recommended Order which arose out of that negotiated plea. The Minnesota and Wisconsin infractions were not significant in terms of reflecting adversely on the Petitioner's character, traits of honesty and trustworthiness, nor his competence, and qualifications to practice as an insurance agent. The Florida infraction in 1985 on its face is serious; however, the actual underlying facts do not reveal that the Petitioner was actually guilty of second-degree grand theft because of the findings concerning the imposition of probation through a "plea of convenience", upon advice of counsel and the court. The unrefuted testimony is that the Petitioner practiced insurance in a manner in which the public has never been harmed. No policyholder or insurer has suffered loss by any act or omission of the Petitioner, nor has the Petitioner benefited pecuniarily from any wrongful conduct.
The above facts and circumstances, taken in their totality, show that the public in the State of Florida will not be harmed by licensure of the Petitioner. The total circumstances represented by the above Findings of Fact show that any adverse implication on his qualifications or worthiness for licensure has long since been rehabilitated by the passage of time and by the appropriate and proper conduct of his business as an insurance agent in the states where he has been licensed. In 25 years, he has continuously handled money and financial affairs of insurers and insureds with honesty and integrity.
It has not been demonstrated that the Petitioner lacks fitness or trustworthiness to engage in the practice of insurance or that he is incompetent to engage therein. It has not been demonstrated that he made a misrepresentation or other fraudulent act in the obtaining of a license or appointment or in the initiation of an attempt to obtain a license or appointment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.
The Department's denial of the Petitioner's application is predicated on Sections 626.611, 626.785(1) and 626.831(1), Florida Statutes. Section 626.611(a),(1),(2),(7),(14), Florida Statutes, provides, in pertinent part, as follows:
The department shall deny an applica- tion for . . . the license or appointment of any applicant, . . . if it finds that as to the applicant . . . any one or more of the following applicable grounds exist:
Lack of one or more of the qualifica- tions for the license or appointment as specified in this code.
Material misstatement, misrepre- sentation, or fraud . . . in attempting to obtain the license or appointment. . . .
(7) Demonstrated lack of fitness or trust- worthiness to engage in the business of insurance. . . .
(14) 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 . . . which involves moral turpitude, without regard to whether a judgment of conviction has been entered by
a court having jurisdiction of such cases.
Section 626.611, Florida Statutes, provides as follows:
The department shall not grant or issue a license as a life agent to any individual found by it to be untrustworthy or incompetent . . . . Section 626.785(1), Florida Statutes;
The department shall not grant or issue a license as a health agent to any individual found by it to be untrustworthy or incompetent
. . . . Section 626.831(1), Florida Statutes.
The Department has denied the application for licensure, in part, based upon the ground cited in paragraph (1) of the above statute, by contending that the Petitioner (applicant) lacks one or more of the qualifications for licensure specified in the Insurance Code. Those qualifications for licensure are specified at Section 626.171(2)(b)1-4., Florida Statutes. Those qualifications concern the applicant's familiarization with Florida's insurance laws, his past insurance experience, his past education in the field of insurance, and his contemplated future completion of any educational requirements. The qualifications do not involve past disciplinary actions in Florida or another state. Indeed, past disciplinary actions may be a basis under other statutory authority for licensure denial; however, they do not constitute one of the qualifications for licensure themselves. It is not, per se, legally impermissible to be granted licensure with past disciplinary actions on one's record. Consequently, it has not been established that the Petitioner lacks one or more of the qualifications for licensure or appointment, as specified in the Insurance Code.
In view of the reasons stated in the above Findings of Fact, based upon the preponderant evidence of record, it has not been established that the Petitioner made any material misstatements, misrepresentations, or fraudulent representations in his effort to obtain the license at issue. The failure to disclose the Wisconsin "stipulation and order" leading to his payment of the fine and the failure to disclose his prior Florida disciplinary action on his Florida application at issue, were the combined results of his genuine, good- faith belief, albeit mistaken, concerning the protective effect of the circuit court's order sealing the record of the criminal matter and his good-faith belief that he had not actually been disciplined by the State of Wisconsin. He considered, rather, that he had paid a fine in an effort to most economically settle the dispute with Wisconsin's Department of Insurance. Further, the Petitioner established that it was his belief, when he filed in Wisconsin and at the time he filed the Florida application, that the Florida disciplinary action and the Wisconsin action all arose from the Florida criminal matter, which had been sealed pursuant to Section 943.059, Florida Statutes. He thought that the
effect of the sealing order allowed him to legally, without penalty, fail to disclose all actions based upon that criminal matter. Beyond that, he knew, and the Department and its personnel knew, that the Florida disciplinary action had occurred, that the Final Order had been entered, and that all pertinent records, including that Final Order of the Department, remained in the Department's custody at the time the subject application was filed. Therefore, he had no reason to believe that the Florida Department of Insurance did not already have knowledge of the Florida disciplinary action, which it now contends he wrongfully failed to report.
In any event, during the course of the free-form stage of this proceeding, when it was before the Department and during his discussions with the Department personnel, he freely and candidly revealed that Florida disciplinary matter, such that before this became a formal dispute and proceeded to a de novo hearing and resolution, the pertinent answer concerning the prior disciplinary action in Florida had been given the Department in the affirmative. Thus, the application was correctly answered in this regard, before final agency action on that application. There has simply been no demonstration that a material misstatement, intentional misrepresentation, or fraudulent representation has been made in the execution and filing of the application for licensure.
Concerning paragraph (7) of the above-cited statute, as a basis for the Department's proposed denial of the application, regarding a "demonstrated lack of fitness or trustworthiness . . .", the above Findings of Fact, based upon preponderant evidence, reveal that the Petitioner, indeed, is fit and trustworthy to engage in the business of insurance in Florida. The disciplinary actions on the Petitioner's record, including the Florida, the Wisconsin, and the Minnesota matters, have been shown, under the circumstance which pertain to them, to not involve elements of dishonesty, concealment, or misrepresentation to the insurance departments involved nor to involve such elements of defective character in the insurance business which the Petitioner has conducted with members of the public and with any co-professionals.
The Minnesota matter was clearly shown to have been the result of an administrative mistake made in the Petitioner's office and which was immediately corrected as soon as it was called to his attention. He did not benefit pecuniarily from the so-called "overlapping" of the policies in question nor was any member of the public subjected to a loss of coverage, loss of money, or other detriment, nor was any insurer subjected to such a pecuniary loss or additional liability or risk.
Indeed, the Petitioner did plead nolo contendere to a felony charge; however, there is no evidence in this record that any findings were ever made by a court or jury that the Petitioner had actually committed the factual elements of the crime in question. The Petitioner's testimony, to the effect that he did not commit theft of the boat in question nor fraud against the insurance carrier which insured the boat, has not been refuted. Consequently, although there is no question that a charge of grand theft involves a crime of moral turpitude; that he pled nolo contendere to that charge, in order to avoid the anguish and expense of criminal litigation and because of the assurances by the prosecution and the court that no adverse effect on his licensure would occur, it has not been proven that, in that instance or in the Minnesota or Wisconsin disciplinary incidents, he has exhibited dishonest conduct or a lack of honesty and trustworthiness, which would preclude him from engaging in the business of insurance.
Moreover, the Petitioner has practiced insurance for 25 years, with no incidents other than those referenced herein, with their attendant extenuating circumstances. His practice of the insurance business in Minnesota and in Florida has not been shown to be characterized by any conduct involving dishonesty or fraud or other evidence of defective character. It has not been demonstrated, in the face of the Petitioner showing that that is not the case, that any member of the public has ever suffered any pecuniary loss nor that any insurance carrier he has represented has suffered any loss or the imposition of any additional risk caused by any illegal or dishonest act or omission committed by the Petitioner. It has thus not been demonstrated that he lacks adequate fitness or trustworthiness to engage in the business of insurance.
In a like vein, with regard to the bases for denial related to Sections 626.785(1) and 626.831(1), Florida Statutes, concerning licensure as a life and health agent, these findings that the Petitioner has been shown to be trustworthy and fit to engage in the business of insurance likewise preclude a finding that he is untrustworthy; and based upon the demonstration of his 25- year record of successful insurance business and practice, it cannot be found that he is incompetent, for purposes of these last two statutory sections.
Finally in this vein, concerning fitness and trustworthiness, it has not been established that, although the Petitioner, indeed, did not actually report the Florida and Wisconsin disciplinary actions on the application, due to the circumstances referenced in the above Conclusions of Law and Findings of Fact, this was not done through any effort to defraud or misrepresent any fact to the Department in seeking to obtain a licensure by such means. Thus, the failure to disclose the disciplinary actions on his application does not itself constitute a demonstration of lack of fitness, trustworthiness or competence to engage in the business of insurance, based upon the above-found circumstances surrounding the reasons he did not disclose.
The Department has also asserted as a ground for denial, as referenced above, as to paragraph (14) of Section 626.611, Florida Statutes, the fact that the Petitioner pled nolo contendere to a felony which involved moral turpitude. There is no question that the Petitioner did enter the plea to the criminal charge involved. The order referenced, of the Circuit Court, sealed that record so that the Petitioner did not legally have to disclose the fact of the plea to the criminal charge. The fact remains, however, that before the Circuit Court's order sealing the criminal record was entered, the Department already had a record of the matter in its own agency records.
The evidence and the above Findings of Fact show, however, that the plea entered was a plea of convenience based, in part, upon the assurance by counsel and the court that no licensure blemish would result therefrom. That assurance, even if mistaken, served to help induce the Petitioner to enter into the plea arrangement. In consideration of the opinion in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. App. 1st Dist. 1985), the Petitioner is entitled in this administrative proceeding to explain the circumstances, including lack of actual guilt, regarding an earlier criminal plea. The Petitioner has adequately done that in this proceeding by showing that he did not actually commit the criminal conduct involved. That testimony, even though it is from an interested witness, the Petitioner himself, has not been refuted and it is accepted. Under that circumstance, the Petitioner's burden to show rehabilitation of character from the fact of the prior criminal charge in seeking to gain licensure in this proceeding is quite a light one.
The above Findings of Fact, based upon preponderant evidence, show that the Petitioner has practiced the insurance business for 25 years in a satisfactory manner. He has not engaged in any conduct, including that related to the disciplinary matters with which this case is concerned, which has imposed any legal liability or detriment, financial or otherwise, to any member of the public, including policyholders or insurers represented by the Petitioner. The circumstances of this case clearly show, as found above, that to the extent it might be necessary, given the circumstances surrounding the earlier plea to the criminal charge, that the Petitioner has shown adequate evidence of rehabilitation of his character for trustworthiness, honesty, and fitness to engage in the business of insurance, so that licensure is now justified.
Further, it is somewhat curious that the Department took the position in the earlier disciplinary proceeding that the plea of nolo contendere to the criminal charge justified a two-year suspension, instead of revocation, in a proceeding in which it clearly could have chosen to revoke his licensure. Since it did not do so, implicitly, and at law, he would appear not to have had any detriment to reinstatement of licensure at the end of that two-year period. In actuality, were it not for the specific language of Section 626.611(14), Florida Statutes, concerning denial of licensure based upon the prior nolo contendere plea, it would appear that the Department would be estopped to deny his licensure on the basis of that plea at this point, after it already made a determination that a two-year suspension was appropriate and adequate punishment for that criminal matter, in terms of detriment to his licensure and licensure entitlement.
In fact, however, the Department is technically correct. It does have that separate statutory ground by which it can consider once again that prior plea of nolo contendere on the issue of his entitlement to the licensure for which he has applied in this proceeding. In the face of that circumstance, however, he has shown clearly that his character has been adequately rehabilitated and he is possessed of adequate traits of trustworthiness, honesty and capability for fair dealing with the insurance-consuming public and insurers in the insurance industry, such that there will be no detriment to any member of any segment of the public posed by his licensure in the manner applied for.
Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is
RECOMMENDED that a Final Order be entered granting the Petitioner's application for licensure as a non-resident health and life agent.
DONE AND ENTERED this 6th day of February, 1996, in Tallahassee, Florida.
P. MICHAEL RUFF, 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 6th day of February, 1996.
APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3363
Petitioner's Proposed Findings of Fact 1-4. Accepted.
5. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.
6-14. Accepted.
15. Accepted, but not as to its entire purported legal import.
Respondent's Proposed Findings of Fact 1-5. Accepted.
6. Accepted, but not for its entire purported material import.
7-9. Accepted, but not in themselves materially dispositive.
COPIES FURNISHED:
Thomas F. Woods, Esquire 1709-D Mahan Drive Tallahassee, Florida 32308
Allen R. Moayad, Esquire Department of Insurance Division of Legal Services
200 East Gaines Street Tallahassee, Florida 32399-0333
Bill Nelson, State Treasurer and Insurance Commissioner
Department of Insurance and Treasurer
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Dan Sumner, Acting General Counsel Department of Insurance
and Treasurer The Capitol, PL-11
Tallahassee, Florida 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.
| Issue Date | Proceedings |
|---|---|
| Feb. 22, 1996 | Respondent`s Exceptions to Recommended Order filed. |
| Feb. 06, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 10/16/95. |
| Nov. 09, 1995 | Petitioner`s Proposed Recommended Order filed. |
| Nov. 08, 1995 | Respondent`s Proposed Recommended Order filed. |
| Oct. 30, 1995 | Transcript filed. |
| Oct. 16, 1995 | CASE STATUS: Hearing Held. |
| Oct. 16, 1995 | Pet's Composite Exhibits filed. |
| Oct. 13, 1995 | Subpoena Duces Tecum w/cover letter filed. |
| Oct. 12, 1995 | (Respondent) Notice of Filing Amended Letter of Denial; Letter to Steven A. Miller from Shirley Kerns Re: First Amended Denial filed. |
| Aug. 10, 1995 | Notice of Hearing sent out. (hearing set for 10/16/95; 9:30am; Tallahassee) |
| Jul. 24, 1995 | Florida Department of Insurance's Response to Initial Order filed. |
| Jul. 12, 1995 | Initial Order issued. |
| Jun. 30, 1995 | Agency referral letter; Petition for Formal Hearing; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 06, 1996 | Recommended Order | Representation on license application where prior disciplinary action not shown based on fraud or dishonesty. Petitioner shown fit/trustworthy under circumstances |
