STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 02-4788PL

)

JAMES E. LOPER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 12, 2003, by video teleconference at sites in Fort Lauderdale and Tallahassee, Florida, before Florence Snyder Rivas, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: James E. Loper, pro se

18217 Northwest 61st Place Miami, Florida 33015

STATEMENT OF THE ISSUE

At issue is whether Respondent’s license as insurance agent should be revoked for providing false answers under oath to

questions regarding his criminal history on his application for licensure.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 20, 2002, Petitioner, the Department of Insurance and Treasurer, now the Department of Financial Services, filed a one-count complaint against Respondent, a licensed Florida insurance agent, alleging that he had falsely answered questions concerning his criminal history on his application for licensure dated March 28, 2000.

Respondent timely exercised his right to an administrative hearing.

At hearing, Respondent testified on his own behalf.

Petitioner offered exhibits 1 through 9 as evidence, which were admitted without objection.

A transcript of the final hearing was filed on February 27, 2003. Petitioner timely filed a proposed recommended order.

FINDINGS OF FACT

1. On March 28, 2000, Respondent executed under oath an application for licensure. Included on the application were the following questions:

   Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory, or country, whether or not a judgment of conviction has been entered?

   
   

   Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not a judgment of conviction has been entered?

   
   

2. As to both of these questions, Respondent answered-- falsely--"No." Respondent was subsequently licensed as an insurance agent. Had he accurately answered these questions, his application for licensure would have been denied.

3. By way of defense, Respondent contends that he was misled by comments made by the trial judge who sentenced him. Respondent testified that at the time he executed his application, he believed, based upon what the judge had said at sentencing, that the charges to which Respondent had pleaded no contest did not constitute a felony and did not carry a sentence of greater than one year in prison.

4. A transcript of Respondent's sentencing would provide a verbatim record of what the judge said, and would afford the fact finder an opportunity to form an opinion as to whether Respondent could have reasonably believed that he could appropriately answer "no" to the above-quoted questions.

5. All criminal sentencing hearings in Florida are, as a matter of course, attended by a court reporter. However, Respondent did not introduce a transcript of his sentencing into evidence in this hearing, nor did he provide an explanation as

   to why a transcript could not be made available. Neither did Respondent offer any testimony other than his own in support of his claim that he had been misled by the sentencing judge as to the nature of the charges to which he plead and/or the maximum sentence permitted under the law. Respondent's own memory as to the details of his crime and punishment was very poor.

6. Thus, there is no factual basis upon which it can be concluded that Respondent's failure to accurately respond to questions regarding his criminal history may be attributed to the failure of the judge who sentenced him to clearly communicate, rather than Respondent's own negligence in responding to the questions concerning his criminal background.

7. It is noted on the face of the application that it is the applicant's burden to provide accurate information, and the failure to do so will result in a denial of licensure.

8. Even if the evidence established that Respondent's misstatements were made in good faith, the outcome of this proceeding would be the same. As noted above, under Florida law, a "yes" answer to either of the above-noted questions would have required the state to deny Respondent's application for licensure.

   CONCLUSIONS OF LAW

   
   

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

10. Petitioner is the agency of the State of Florida vested with the statutory authority to administer the disciplinary provisions of Chapter 626, Florida Statutes.

11. Petitioner has the burden of proving its allegations by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, Respondent concedes that his answers to questions regarding his criminal background were inaccurate.

12. Subsections 626.611(1), (7), and (14), Florida Statutes, provide, in pertinent part:

    . . . The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any . . . 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:

    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 trustworthiness to engage in the business of insurance.

       
       

       * * *

       
       

       (14) 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. . . .

       
       

13. Under Florida law, felons are not eligible for licensure as insurance agents. In Natelson v. Department of Insurance, 454 So. 2d 31, 32 (Fla. 1st DCA 1984), the court said:

    Insurance is a business greatly affected by the public trust, and the holder of an agent’s license stands in a fiduciary relationship to both the client and insurance company.

    
    

    For this reason, the state had a legitimate interest in denying licensure to persons who have pled guilty to or been convicted of felonies.

14. The evidence established that Respondent was licensed in error, and the error should now be rectified.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order revoking Respondent's license and eligibility for licensure.

DONE AND ENTERED this 7th day of April, 2003, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 7th day of April, 2003.

COPIES FURNISHED:

R. Terry Butler, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

James E. Loper

4105 North University Drive Number J-206

Sunrise, Florida 33351

James E. Loper

18217 Northwest 61st Place Miami, Florida 33015

Honorable Tom Gallagher

Treasurer and Chief Financial Officer Department of Financial Services

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

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: 02-004788PL

Orders for Case No: 02-004788PL