STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID N. WEIKER, SR.,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 03-2708

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on October 21, 2003, in Orlando, Florida.

APPEARANCES

For Petitioner: David N. Weiker, Sr., pro se

1506 Elfstone Court

Casselberry, Florida 32707

For Respondent: R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0399

STATEMENT OF THE ISSUE

Whether Petitioner should be licensed as a life, variable annuity and health agent by the Department of Financial Services?

PRELIMINARY STATEMENT

On August 29, 2002, Respondent, Department of Financial Services, advised Petitioner, David N. Weiker, Sr., by a Notice of Denial that his license application as a life, variable annuity and health agent had been denied, listing the factual and statutory basis for the denial. On September 9, 2002, Petitioner responded by disputing material facts in the Notice of Denial and requesting an administrative hearing.

On July 24, 2003, Respondent forwarded the Notice of Denial and Petitioner's request for an administrative hearing to the Division of Administrative Hearings, requesting assignment of an Administrative Law Judge to consider the matter. On July 24, 2003, an Initial Order was sent to both parties.

On July 31, 2003, the case was scheduled for final hearing in Orlando, Florida, on September 16, 2003. On September 10, 2003, the parties jointly moved to continue the final hearing. In response to the Joint Motion to Continue, an order was entered rescheduling the final hearing for October 21, 2003. On September 25, 2003, Respondent filed a Second Amended Motion to Amend Notice of Denial; this motion was granted on October 7, 2003.

The final hearing took place as rescheduled on October 21, 2003. Petitioner testified and offered six exhibits, five of which were admitted into evidence and marked Petitioner's

Exhibits 1 through 5. Respondent offered twelve exhibits into evidence; all were admitted and marked Respondent's Exhibits 1 through 12.

On November 17, 2003, Respondent moved to extend the time for filing proposed recommended orders as the transcript had not yet been filed. This motion was granted extending the time for filing proposed recommended orders until December 10, 2003. The hearing Transcript was filed on November 20, 2003. Respondent filed a Proposed Recommended Order which was considered by the undersigned Administrative Law Judge.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made:

1. Petitioner is 51 years old; has Associate of Arts degrees from Seminole Community College, Sanford, Florida, and Davenport University, Grand Rapids, Michigan; will soon acquire a bachelor of business administration degree from Belhaven College; and is applying for a doctoral program at the University of Central Florida.

2. Petitioner holds a real estate sales associate license issued by the Department of Business and Professional Regulation, Division of Real Estate. The effective date of the license is September 29, 2003; it will expire on September 30, 2005.

3. On November 28, 2001, Petitioner applied to Respondent for a license classified as a "life and variable annuity and health insurance agent." One of the screening questions on the license application was the following: "[H]ave you ever had any professional license subjected to any of the following actions by any state agency or public authority in any jurisdiction?" In response, Petitioner circled "Yes." The screening question was then followed by the following "actions": suspension, revocation, placed on probation, administrative fine or penalty levied, cease and desist order entered. In response, Petitioner circled "suspension."

4. On July 17, 1997, a Final Order was entered in Department of Business and Professional Regulation, Division of Real Estate v. David Nelson Weiker, Case No. 95-85173, which reads, in part, as follows:

   . . . the Commission finds the Respondent guilty of violating ss 475.25(1)(c) and 475.42(1)(j), Florida Statutes, as charged in the Administrative Complaint. Therefore the Commission ORDERS that the license of David Nelson Weiker be suspended until the liens are removed. At the conclusion of the period of suspension, the Respondent is directed to contact the Records Section of the Division of Real Estate . . . to secure proper forms for reinstatement of Respondent's suspended license. The Commission further ORDERS that the Respondent pay a $1000 administrative fine and investigative costs of $768 within

   30 days of the filing date of this order or the Respondent's license shall be suspended

   until such time as the fine and costs are paid in full.

   
   

5. In Weiker, Case No. 95-85173, Petitioner, David N. Weiker, Sr., initially requested a formal hearing, then failed to respond to a request for admissions. As a result, he admitted being a licensed real estate salesperson who, as an employee of a builder, Mercedes Homes, Inc., filed 14 liens in a total amount of $23,301 against homes owned by Mercedes Homes, Inc., in an attempt to collect sales commissions he deemed he was owed.

6. The administrative fine of $1,000, in Weiker, Case

   
   

   No. 95-85173, was paid by a check dated August 5, 1998, drawn on the account of David S. Piercefield, P.A.

7. On August 13, 1998, an Amended Final Order was entered in Department of Business and Professional Regulation, Division

   of Real Estate v. David Nelson Weiker, Case No. 96-83238 (DOAH Case No. 97-4742), which reads, in part, as follows:

   . . . the Commission finds the Respondent guilty of violating s.475.25(1)(b) and (c), Florida Statutes, as charged in the Administrative Complaint. The Florida Real Estate Commission therefore ORDERS that the Respondent pay a $1,000.00 administrative fine. . . . Therefore the Commission ORDERS that the Respondent be placed on probation for a period of ninety days . . .

   
   

8. In Weiker, Case No. 96-83238 (DOAH Case No. 97-4742), the Real Estate Commission adopted the Recommended Order of the

   Administrative Law Judge. In that Recommended Order, the Administrative Law Judge found that "he [Weiker] furthered a scheme of misrepresentation, false promises, and dishonest dealing."

9. The administrative fine of $1,000, in Weiker, Case No. 96-83238 (DOAH Case No. 97-4742), was paid by a SouthTrust Bank check dated October 14, 2003. The remitter was Irene L. Weiker.

10. On several occasions, in correspondence with representatives of Respondent, and while testifying at the final hearing, Petitioner testified that his real estate license had not been suspended. He also maintained, without substantive evidence or reasonable explanation, that the two administrative fines had been paid several times or by the wrong individuals. His attempts to explain the facts and circumstances of the two administrative actions disciplining his real estate license were unreasonable and not credible.

    CONCLUSIONS OF LAW

    
    

11. Respondent has jurisdiction over the licensing of agents pursuant to Chapter 626, Florida Statutes (2003).

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2003).

13. As an applicant for a license, Petitioner bears the ultimate burden of proving entitlement to the license. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996); Florida Department of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. Respondent has the discretion to determine an applicant's fitness and trustworthiness to engage in the business of insurance. Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984).

15. Section 626.611, Florida Statutes (2002), states, in pertinent part:

    The department shall deny an application 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:

    
    

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

       
       

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

       
       

16. Section 626.831(1), Florida Statutes (2002), states, in part, that:

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

17. Considering Petitioner's convoluted explanations of the attendant circumstances of the two disciplinary actions against his real estate license, together with the remainder of his testimony, which wholly lacks credibility, Petitioner failed to demonstrate the fitness and trustworthiness expected of a licensee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent's decision to deny Petitioner's application for a life, variable annuity and health insurance agent license is well-founded; Petitioner's license application should be denied.

DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 22nd day of December, 2003.

COPIES FURNISHED:

R. Terry Butler, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0399

David N. Weiker, Sr. 1506 Elfstone Court

Casselberry, Florida 32707

Honorable Tom Gallagher 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: 03-002708

Orders for Case No: 03-002708