STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 00-4685PL

) MARIA ANTONIA CABALLERO GUEITS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on March 13, 2001, in Tallahassee, Florida, with the Respondent appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard Santurri, Esquire

Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Joseph H. Fernandez, Esquire

The Law Offices of Brand & Fernandez, P.A.

2 Northeast 40th Street Suite 403

Miami, Florida 33137

STATEMENT OF THE ISSUES

Whether the Respondent committed the offenses alleged in the Administrative Complaint issued August 25, 2000, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Petitioner, Department of Insurance (Department) issued an Administrative Complaint against the Respondent, Maria Antonia Caballero Gueits, on August 25, 2000. Such complaint alleged that the Respondent had committed six violations of Chapter 626, Florida Statutes. All of the alleged violations arose from a single incident that was not disclosed on the Respondent's application for licensure. More specifically, the complaint argued that the Respondent had been found guilty of the crime of carrying a concealed weapon. The disposition of that criminal matter had not been sealed or expunged although adjudication was withheld. The complaint maintained that the Respondent was obligated to disclose the pertinent facts of that criminal matter on her application for licensure and that the failure to do so constitutes violations of law.

In response to the complaint, the Respondent timely

filed an Election of Rights which disputed the factual

allegations and requested an administrative hearing. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on November 15, 2000.

At the hearing, the Respondent's testimony was relied upon by both parties. The exhibits identified as Petitioner's Exhibits 1-4, and Respondent's Exhibits 1- 12, and 14 were admitted into evidence. The transcript of the proceedings was filed on April 12, 2001. The parties timely submitted proposed orders that have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility of regulating insurance licenses and appointments pursuant to Chapter 626, Florida Statutes.

2. At all times material to the allegations in this case, the Respondent has been licensed as a Life Health and Annuity Agent, Life Health and Variable Annuity Agent, and a Health Insurance Agent in this state.

3. On March 7, 1982, the Respondent was celebrating her birthday, she turned 22 that day, and was returning home with her husband when the vehicle they were in was stopped for a minor traffic infraction (expired tag).

4. Believing he had to perform a "pat down" for his safety, the officer felt the Respondent's purse and noticed a bulge in the shape of a small weapon. The small hand gun had been a birthday present to the Respondent. Upon discovering the weapon, the officer charged the Respondent with carrying a concealed firearm.

5. Initially the Respondent entered a written plea of not guilty but subsequently changed the plea in open court to one of nolo contendere. In connection with the plea change, the court entered an Order Granting Probation and Fixing Terms Thereof. The fact that the Respondent was placed on probation is not disputed.

6. Further, as the Court determined the Respondent was not likely to again engage in a criminal course of conduct, adjudication was withheld and probation set for a period of one year. The Respondent successfully completed that year of probation and has had no further incidents of criminal misconduct.

7. The Respondent erroneously believed that the successful completion of the probationary period, and the fact that adjudication had been withheld, resulted in the expungement of the criminal record. As the Respondent later found out, criminal records are not automatically sealed or expunged.

8. On November 2, 1999, the Respondent filed an application for licensure as a life health and variable annuity agent with the Petitioner. That application contained two questions dealing with the applicant's past criminal history. As to both questions, the Respondent erroneously entered "no" responses.

9. Had the Respondent entered accurate answers, both responses would have been "yes" based upon the status of the Respondent's criminal record at the time the application was submitted to the Petitioner.

10. The Respondent has a medical condition that she claims has damaged her long term-memory. According to the Respondent, she answered the questions as she did because she did not remember all the facts surrounding the criminal history at the time the application was completed but that, even if she had, she would have assumed the matter was sealed and fully resolved since adjudication was withheld. The Respondent's account in this regard has been deemed credible. The Respondent did not intend to mislead the Petitioner and acted more in ignorance of the law as to the prior arrest and probation than in willful disregard of her responsibility to disclose it.

11. At the time Respondent completed her application for licensure she read the paragraph that appears at the bottom of the third page of said application in bold typeface that states:

    IT IS IMPORTANT THAT YOU HAVE READ ALL OF THE FOREGOING QUESTIONS CAREFULLY AND HAVE ANSWERED THEM FULLY. THIS IS ESPECIALLY IMPORTANT AS IT RELATES TO AN APPLICANT'S LAW ENFORCEMENT RECORDS. THE DEPARTMENT DEEMS ALL MATTERS THAT ARE PART OF AN APPLICANT'S LAW ENFORCEMENT RECORDS TO BE A SIGNIFICANT AND MATERIAL ELEMENT OF THE APPLICATION, THE OMISSION OF ANY PART OF THE LAW ENFORCEMENT RECORD IS A MATERIAL MISREPRESENTATION OR MATERIAL MISSTATEMENT IN AND OF ITSELF. YOUR FAILURE TO DIVULGE YOUR COMPLETE LAW ENFORCEMENT RECORD ON THIS APPLICATION CAN RESULT IN YOUR APPLICATION BEING DENIED.

    
    

12. In addition to the foregoing, the application submitted by the Respondent provided the following statement:

    Under penalty of perjury, I declare that I have read the foregoing application for license and the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s).

    
    

13. The answers provided by the Respondent to the two questions (application questions numbered 18 and 19)

    were incorrect, misleading, and were presumably used to support the issuance of the Respondent's licenses.

14. Although the Respondent is eligible to have her criminal record sealed or expunged, as of the date of the hearing she had not completed that process.

15. During the investigation of this matter, the Respondent fully cooperated with the Petitioner and obtained copies of documents as requested.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

17. Section 626.611, Florida Statutes, provides in pertinent part:

    The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, solicitor, 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:

    * * *

    (2) Material misstatement, misrepresentation, or fraud in obtaining the license or appointment

    or in attempting to obtain the license or appointment.

    
    

    * * *

    
    

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

    
    

    * * *

    
    

    1. Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code.

       
       

       * * *

       
       

    2. 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.

    
    

18. Section 626.621, Florida Statutes, provides, in part:

    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, solicitor, 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:

    
    

    1. Any cause for which issuance of the license or appointment could have been refused had it then existed and been known to the department.

       
       

       * * *

       
       

       (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.

       
       

19. Rule 4-211.031(4), Florida Administrative Code, provides:

    1. Effect of Failure to Fully Disclose Law Enforcement Record on Application.

       
       

       1. As a matter of policy, the Department deems all matters that are part of an applicant's law enforcement record to be a significant and material element of the application, and the omission of any part of the law enforcement record is a material misrepresentation or material misstatement in and of itself. The applicant will have violated section 626.611(2) and/or 626.621(1), Florida Statutes, if the applicant fails to provide the Department with the documentation required by this rule.

          
          

       2. It is Department policy that the integrity of the licensure system requires stern adverse consequences for submission of an inaccurate application. Furthermore, because the Department finds in its experience that it is not feasible to reliably discern which applicants truly forgot an item and which applicants intentionally omitted an item, it is Department policy that it is not pertinent whether the applicant forgot the item or intentionally omitted it, because in either event a strict rule encourages carefully completed applications.

          
          

       3. The Department finds failure to fully reveal the entire law enforcement record as called for by the application, to reflect adversely on the character, fitness, or trustworthiness of the applicant, and the more recent the omitted element was, the more adversely it reflects on the applicant. Therefore, in instances where the applicant failed to fully and properly disclose the law enforcement record on the application, the Department finds it generally necessary to impose a waiting period, or to extend a waiting period otherwise specified in this rule, during which period licensure must be denied, to provide some assurance that the applicant has overcome any weakness or tendency that led to the criminal conduct or that caused the omission. Where the waiting period specified herein is in addition to waiting periods already applicable to that applicant, the additional waiting period runs from the later of time of application, or the end of the waiting period otherwise specified in this rule. All other waiting periods attributable to an omission run from

          the time the omission is discovered. The waiting period attributable to omissions is as set out below.

          
          

          1. Class A, B, or C crime omitted, where the trigger date was more than

             10 years before time of application, add 1 year. If trigger date was less than 10 years prior, add 2 years.

             
             

          2. Class D crime omitted, where the trigger date was more than 5 years prior to time of application, add 6 months. If less than 5 years prior, add 1 year.

             
             

          3. Omission of any arrest, pending criminal charges, pre-trial intervention, or other part of the law enforcement record required to be disclosed, add or impose, as the case may be, a six month waiting period.

             
             

       4. An applicant whose application is denied under this subsection must resubmit another application and applicable fee as set forth in section 624.501, Florida Statutes, and on the application form respective to the type and class of license sought.

          
          

       5. After the waiting period has elapsed, the Department shall then consider the application if resubmitted in good form with applicable fees, and licensure shall be granted if the licensee then meets all the requirements and criteria as set out in this rule and other applicable rules and statutes.

          
          

       6. Exception. Where the applicant produces a letter from an attorney in good standing, stating that the attorney advised the applicant that the omitted item need not be set out in the application, the omission itself shall not be adversely held

          against the applicant; provided, the Department shall report such actions to the Florida Bar for its review, and the Department shall substantively consider the matter omitted.

          
          

       7. Formal Record to Be Made. The Department finds that submission of an inaccurate application in this regard, is a matter of such weight that a formal record of same shall be made and preserved by Department Order, for reference and consideration should the applicant subsequently become licensed and violate any portion of the insurance code. To this end, applicants are required to execute a settlement acknowledging the inaccuracy, as a prerequisite to licensure, after all additional waiting periods have elapsed and the applicant is otherwise eligible for licensure.

    
    

20. In this case, the Department bears the burden of proof to establish by clear and convincing evidence the allegations of the Administrative Complaint. It has met that burden. Regrettably, the Respondent failed to accurately disclose the criminal history on her application. Such failure was not deliberate, was not intended to mislead the Department, and was not calculated to obtain licensure by fraud or deceit. She merely made an error. Nevertheless, applicants for licensure are held to a high standard for truthfulness regarding disclosures. The failure to accurately disclose the information is, by rule, deemed to be a

    significant and material element of the process. Notwithstanding her omission, nothing in this order should be construed to conclude the Respondent is not trustworthy or fit to engage in the business of insurance.

21. Rule 4-231.030(6), Florida Administrative Code, provides:

    (6) "Penalty per count" refers to the penalty to be assessed for a single count which shall be equal to the highest stated penalty in the count for all violations proven.

    
    

22. All of the violations alleged in this case stem from the single incident and the Respondent's failure to disclose it on her application. To stack multiple violations as a result of the same conduct is not justified under the facts of this case. The Respondent should not be unduly penalized because she did not disclose facts that in all likelihood would not have kept her from achieving license status. Moreover, once the past case is properly sealed (as she erroneously thought had already been done), the record of it will not be available. An administrative fine to cover the Department's expenses in prosecuting this matter should adequately serve as a penalty to the Respondent for not assuring the application was accurately completed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance impose an administrative fine against the Respondent in an amount sufficient to cover the costs of prosecuting this case.

DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida.

________________________________

J. D. PARRISH 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 1st day of May, 2001.

COPIES FURNISHED:

Richard J. Santurri, Esquire Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Joseph H. Fernandez, Esquire The Law Offices of

Brand & Fernandez, P.A.

2 Northeast 40th Street Suite 403

Miami, Florida 33137

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307

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: 00-004685PL

Orders for Case No: 00-004685PL