STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT T. ESCUETA, )

)

Petitioner, )

)

vs. ) Case No. 04-0281

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on April 16, 2004, by video teleconference at sites in Jacksonville and Tallahassee, Florida.

APPEARANCES

For Petitioner: Albert T. Escueta, pro se

1688 Pecan Court

Orange Park, Florida 32073-3614

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for licensure should be approved.

PRELIMINARY STATEMENT

By correspondence dated August 21, 2003, the Department of Financial Services advised Petitioner Albert T. Escueta that his application for licensure was denied, and Petitioner timely requested an administrative hearing regarding that denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct an evidentiary proceeding.

Petitioner testified on his own behalf. The Department presented no witnesses, but the Department's Exhibits numbered 1-10 were admitted in evidence.

Only the Department submitted a post-hearing proposed recommended order. That document has been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Petitioner filed an application with the Department requesting to be licensed as a credit life or credit disability agent, a credit property agent, and a credit agent.

2. Petitioner answered in the negative to question numbered 3, which provides as follows:

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

   Below that question is a warning advising that a criminal history can be cause for denying an application and that misrepresentations as to criminal history can be cause for suspending or revoking a license. Petitioner read that warning when he completed his application.

3. Immediately above Petitioner's signature on his application for licensure is a section entitled "Final Statement" containing the following language:

   I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief . . . .

   
   

   * * *

   
   

   Under penalties of perjury, I declare that I have read the foregoing application for license and that 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 . . . .

   
   

   Petitioner read these statements when he completed his application for licensure.

4. When Petitioner signed his application on April 9, 2003, he was aware that a truthful application was required.

5. The Department obtained Petitioner's criminal history record that revealed that he had been arrested on February 12, 1981, in Lake County, Florida, for possession of marijuana, a

   controlled substance, in excess of 20 grams, a felony. The Department directed Petitioner to provide certified copies of the court documents related to that arrest.

6. Those certified records reveal, and Petitioner so testified at the final hearing in this cause, that Petitioner was arrested, taken to jail, booked, and posted bail. An information was filed against him. He eventually pled guilty, adjudication was withheld, and he was sentenced to two years of probation, subject to certain conditions, and paid court costs. Petitioner satisfactorily completed the terms and obtained early release from probation.

7. In addition to his court appearance the day after his arrest, Petitioner appeared before the circuit court judge on at least four occasions.

8. Petitioner knowingly provided a false answer to the criminal history question on his application. Petitioner intended to misrepresent or conceal information regarding his criminal history.

9. The Department classifies the crime Petitioner committed as a Class "A" crime.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

11. As the applicant, Petitioner bears the burden of proving entitlement to licensure. Florida Dept. of

    Transportation v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet his burden.

12. Section 626.611, Florida Statutes, provides that the Department shall deny an application for licensure if it finds any of the following grounds applicable:

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

       
       

    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.

       
       

       * * *

       
       

       (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 or under the law of any country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

       
       

       Section 626.621(8), Florida Statutes, provides that the Department may deny a license for the same reason as in Section

       626.611(14), the former being discretionary and the latter being mandatory.

13. Thus, the applicable statutes render relevant and material an applicant's criminal history, and the application form used by the Department so advises the applicant. By providing a false answer to the question regarding his criminal history, Petitioner violated Section 626.611(2) by making a material misstatement or misrepresentation in attempting to obtain his license and Section 626.611(7) by demonstrating his lack of fitness or trustworthiness to engage in the business of insurance.

14. In his correspondence to the Department and in his testimony at the final hearing in this cause, Petitioner has taken the position both that he was unaware of his criminal record and that he forgot about it. Although the details of an event become vague after 20 years, it is not credible that Petitioner would not be aware of or would forget an event that included being arrested, taken to jail, booked, and charged with a felony, and which included appearing before a judge on at least five different occasions. Petitioner's testimony that it was not a memorable event in his life is not believable.

15. Florida Administrative Code Rule 69B-211.042(4) provides that for applicants who fail to disclose a Class "A" crime where the date on which the applicant pled guilty to the

crime in question is more than 10 years prior to the application, a waiting period of one year is required before the applicant can re-apply for licensure. In this case, the waiting period is one year from the date on which the Department issued its notice of denial of Petitioner's application. Therefore, Petitioner will be eligible to re-apply for licensure on

August 21, 2004.

RECOMMENDATION

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

RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a credit life or credit disability agent, as a credit property agent, and as a credit agent.

DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 13th day of May, 2004.

COPIES FURNISHED:

Albert T. Escueta 1688 Pecan Court

Orange Park, Florida 32073-3614

Dana M. Wiehle, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

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: 04-000281

Orders for Case No: 04-000281