STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT JOSEPH MCGUIRE,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 04-0418

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on behalf of the Division of Administrative Hearings (DOAH), in Ft. Myers, Florida, on

March 31, 2004. The parties attended the hearing in Ft. Myers. The ALJ conducted the hearing by videoconference from

Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert Joseph McGuire, pro se

8464 Matanzas Road

Fort Meade, Florida 33912

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent should deny Petitioner's application for licensure as

an agent authorized to sell resident life, variable annuity, and health insurance.

PRELIMINARY STATEMENT

On June 12, 2003, Petitioner submitted a license application to Respondent. By letter dated September 11, 2003, Respondent notified Petitioner that Respondent proposed to deny the license application. Petitioner timely requested an administrative hearing, and Respondent referred the matter to DOAH to conduct the administrative hearing.

At the hearing, Petitioner testified, presented the testimony of one other witness, and submitted no exhibits for admission into evidence. Respondent presented the testimony of one witness, and submitted 13 exhibits and one rebuttal exhibit for admission into evidence. The identity of the witnesses and exhibits and any attendant rulings are reported in the Transcript of the hearing filed with DOAH on May 3, 2004.

Respondent timely filed its proposed recommended order (PRO) on May 13, 2004. Petitioner did not file a PRO.

FINDINGS OF FACT

1. Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2003). On June 12, 2003, Petitioner electronically filed (on-line) a completed application for licensure as an agent authorized to sell

   resident life, variable annuity, and health insurance (the license).

2. Petitioner answered "no" to the following question on the on-line license application that Petitioner submitted to Respondent on June 12, 2003:

   [h]ave you ever been charged, convicted, found guilty, or pled 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?

   
   

3. Petitioner was convicted of a crime in Tennessee in 1973. Petitioner pled guilty to multiple felony charges relating to the sale of drugs and was sentenced to prison for more than one year.

4. Petitioner's failure to disclose the criminal conviction in Tennessee is a material misstatement within the meaning of Subsection 626.611(2), Florida Statutes (2003). Petitioner failed to show by a preponderance of the evidence that the failure to disclose his criminal history on the application was inadvertent.

5. Petitioner knew, or should have known, the importance of accurate answers to questions on the license application. The final section of the online application, entitled "Step 8: Summary," contained the following language:

   Applicant Affirmation Statement

   
   

   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 and/or the revocation of my insurance license(s).

   
   

   Petitioner signed the foregoing statement, but did not send the signed statement to Respondent for several months.

6. The on-line license application at issue in this proceeding was the second application that Petitioner filed with Respondent. In December 2001, Petitioner filed an application with Respondent's predecessor agency, the Department of Insurance (the Department), for licensure as a resident legal expense sales representative. The question regarding criminal history did not appear on the first application. The Department issued a legal expense sales representative license to Petitioner on December 19, 2001.

7. After the Department issued the legal expense license to Petitioner, Respondent received Petitioner's criminal history report. On January 7 and March 12, 2002, and on July 15, 2003,

   Respondent wrote letters to Petitioner asking him for documentation and information concerning his criminal history. Petitioner received all three letters in a timely manner.

8. Petitioner's testimony that he responded to the requests for information concerning his criminal history is neither credible nor persuasive. Rather, Petitioner ignored both requests in 2002, and did not respond to the request in 2003 until after Respondent notified Petitioner of Respondent's proposed denial of the license application. The disclosure by Petitioner was not timely and forthcoming.

9. The material misstatement of Petitioner's criminal history on the license application was an intentional, false statement. Petitioner had knowledge that his answer to the criminal history question was not true. Petitioner's failure to disclose his criminal history on the license application was a reckless and careless act. The false statement demonstrates a "lack of fitness or trustworthiness to engage in the business of insurance" within the meaning of Subsection 626.611(7), Florida

   Statutes (2003).

   
   

   CONCLUSIONS OF LAW

   
   

10. DOAH has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003). DOAH provided the parties with adequate notice of the administrative hearing.

11. Petitioner bears the ultimate burden of proving entitlement to a license. Florida Department of Transportation

    v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

    Petitioner must show by a preponderance of the evidence that he satisfied relevant statutory criteria for the license.

    Petitioner failed to show by a preponderance of the evidence that Petitioner is entitled to the license.

12. In relevant part, Subsections 626.611(2) and (14), Florida Statutes (2003), state that Respondent "shall deny" the license application if Petitioner made a material misstatement in attempting to obtain the license or was found guilty of a crime punishable by more than one year of imprisonment. Subsection 626.621(8), Florida Statutes (2003), also gives

    Respondent discretionary authority to deny the license application upon a finding that Petitioner has been convicted of a crime that is punishable by more than one year of imprisonment.

13. Petitioner was convicted of a crime within the meaning of Subsections 626.611(2), (14), and 626.621(8), Florida Statutes (2003). Petitioner's failure to disclose his criminal history also violated Florida Administrative Code Rule 69B-211.042(2). In relevant part, Florida Administrative Code

    Rule 69B-211.042(2) provides:

    
    

    Every applicant shall disclose in writing to the Department the applicant's entire law enforcement record on every application for

    licensure, as required therein, whether for initial, additional, or reinstatement of licensure. This duty shall apply even though the material was disclosed to the Department on a previous application submitted by the applicant.

    
    

14. Petitioner's failure to disclose his criminal history in a timely manner was a material misstatement on the license application. The material misstatement was a false statement that Petitioner intentionally made in an effort to obtain the license. See Hernandez v. AMISUB (American Hospital), Inc., 714 So. 2d 539 (Fla. 3d DCA 1998)(intentional misrepresentation can be shown by recklessness or carelessness as to the truth of the matter asserted). The false statement demonstrates a "lack of fitness or trustworthiness to engage in the business of insurance" within the meaning of Subsection 626.611(7), Florida Statutes (2003).

RECOMMENDATION

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

RECOMMENDED that Respondent enter a Final Order denying the license application without prejudice for Petitioner to reapply in accordance with Respondent's rules.

DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 28th day of May, 2004.

COPIES FURNISHED:

Dana M. Wiehle, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Robert Joseph McGuire 8464 Matanzas Road

Fort Meade, Florida 33912

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: 04-000418

Orders for Case No: 04-000418