STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE L. LOWE,

Petitioner,

vs.

DEPARTMENT OF FINANCIAL SERVICES,

Respondent.

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) Case No. 04-0881

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on April 22, 2004, in Tarpon Springs, Florida, before William R. Pfeiffer, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Michelle L. Lowe, pro se

791 Arthurs Court

Tarpon Springs, Florida 34689

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue to be determined is whether Petitioner's application for licensure as a resident life, including variable annuity and health insurance agent, should be granted.

PRELIMINARY STATEMENT

On September 19, 2003, Petitioner filed an application with Respondent, Department of Financial Services (the Department), seeking licensure as a resident life, including variable annuity and health insurance agent. By letter dated December 2, 2003, the Department denied her application and Petitioner timely contested the decision. The case was transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner testified on her own behalf, and presented the testimony of Debbie Baumgart. Petitioner offered no exhibits into evidence. Respondent offered no direct testimony, and Respondent's Exhibits numbered 1 through 10 were admitted into evidence.

The one-volume Transcript was filed on May 11, 2004.

The Department timely submitted its proposed recommended order on June 4, 2004, which has been duly considered.

FINDINGS OF FACT

1. The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2003).

2. On September 19, 2003, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity and health insurance agent.

3. The online application form filled out by Petitioner included the heading title:

   Florida Department of Financial Services Bureau of Agent and Agency Licensing Application for New License

   
   

4. The first page of the online application includes space for "Licenses Applied for," in which the designation "02-15 – Resident Life Including Variable Annuity & Health Insurance Agent" was inserted. Also referred to on the first page of the application are the "Application Fee," "License Card Fee," and "Exam Fee" that would be due.

5. The final section of the online application, titled "Step 8: Summary," is a two-page document that must be printed and personally signed by an applicant. The second page of the Summary document 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; that I understand the Laws of Florida and the rules promulgated by the Insurance Commissioner for the class of business for which I hereby request a license. . . . and [] that I have not withheld any information on myself that would in anyway affect my qualifications.

   
   

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   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). (emphasis added)

   
   

6. A space for the Petitioner's signature is provided immediately below the "Applicant Affirmation Statement."

7. Petitioner admits that she read the online application, completed it, electronically sent it to the Department, physically signed the disclosure form and mailed it to the Department via U.S. Mail.

8. The online application form filled out by Petitioner for the license at issue in this proceeding included the following question:

   [h]ave you ever been convicted, found guilty, or pled 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 adjudication was withheld or a judgment of conviction was entered?

   
   

   Petitioner answered the question in the negative.

   
   

9. The criminal history records obtained by the Department during the application process revealed that in 1991, Petitioner was charged with three felony counts related to the sale of a controlled substance. Petitioner ultimately pled guilty to a single felony charge of possession of a controlled substance in State of Nevada v. Michelle Lee Whitman, Case No. C98783B.

   Petitioner was adjudicated guilty of the charge, given a one-year suspended sentenced, and placed on two years of probation.

10. Petitioner completed her probation, and the state of Nevada restored her civil rights as of July 1, 2003. She was notified that her civil rights had been restored in a letter from the Nevada Department of Public Safety dated November 5, 2003. Neither the letter nor Nevada law contains any language relating to a right not to disclose a conviction to employers.

11. In a letter to the Department following the denial of her application, as well as during her testimony, Petitioner asserted that Nevada law gave her the right to withhold the information concerning her prior conviction.

    CONCLUSIONS OF LAW

    
    

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

13. As the applicant, Petitioner must prove that she is entitled to the license she is seeking. Florida Department of

    Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must show that she meets all of the relevant statutory criteria in order to satisfy this burden.

14. In its Notice of Denial, the Department alleged that Petitioner violated various provisions of the Florida Insurance

    Code by failing to disclose her criminal history on her application. Section 626.611, Florida Statutes (2003), states:

    The department . . . shall deny an application for . . . the license . . . 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.

       
       

    2. Material misstatement, misrepresentation, or fraud in obtaining the license or appointment or in attempting to obtain the license or appointment.

       
       

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

       
       

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       (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 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.

       
       

15. Section 626.621, Florida Statutes (2003), states:

    
    

    The department . . . may, in its discretion, deny an application for . . . the license

    . . . of any applicant . . . if it finds that as to the applicant . . . any one or more of the following applicable grounds exist under circumstances for which such

    denial . . . is not mandatory under s. 626.611:

    
    

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    (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.

    
    

16. In addition, Subsections 626.611(7) and 626.785(1), Florida Statutes (2003), prohibit the issuance of a license to "an individual found to be untrustworthy or incompetent. "

17. Pursuant to Subsections 626.611(14) and 626.621(8), Florida Statutes (2003), an applicant's criminal history is relevant to the Department's decision regarding the licensure of an insurance agent applicant. The Department's application form requires each applicant to disclose his/her criminal history and clearly provides the consequences of non-disclosure.

18. The Department's rules also define an applicant's duty with regard to disclosure of criminal history records:

    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.

    
    

    Fla. Admin. Code R. 69B-211.042(2).

    
    

19. Petitioner admits that she read and completed the application. She admits that her answer to the criminal history question on the application for licensure was false.

20. The Department alleges that it denied Petitioner's license because it determined that she made a material misstatement or misrepresentation in her attempt to obtain the license in violation of Subsection 626.611(2), Florida Statutes (2003). The Department further argues that Petitioner's non- disclosure demonstrated a "lack of fitness or trustworthiness to engage in the business of insurance." § 626.611(7), Fla. Stat. (2003).

21. In order for Petitioner to receive her license, she must prove that she did not have knowledge that her answer to the criminal history question was not true and that her untrue answer was unintentional. Munch v. Department of Professional

    Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992). To the contrary, Petitioner admits that she knew her answer to the criminal history question was false, and that she was being intentionally untruthful.

22. Petitioner asserts, however, that she believed Nevada law gave her the authority to withhold the information on the

    Department's licensure application. Petitioner's belief is unfounded and there is no credible evidence that Petitioner even sought or received guidance relating to the application's requirements. Her argument is without merit.

23. Petitioner further argues that her restoration of civil rights from the State of Nevada entitled her to deny her past conviction. Again, although the State of Nevada automatically restored her civil rights effective July 1, 2003, she can provide no legal authority to support her omission. Furthermore, Petitioner did not even receive notification of the enactment of the restoration until two months after she had submitted her application. Petitioner's arguments are without merit.

24. Petitioner may reapply for licensure. Florida Administrative Code Rule 69B-211.042(4) provides that for applicants who have failed to disclose a Class C crime, a waiting period of one year is to be applied prior to an applicant reapplying for licensure. The waiting period is to run from the later of either the date the Department issued its notice of denial, or the date that a previously imposed waiting period expires.

25. In the present case, Petitioner's one-year waiting period runs from the date the Department issued its Notice of

Denial. Therefore, Petitioner will be eligible to reapply for licensure December 2, 2004.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Petitioner violated Subsection 626.611(2), Florida Statutes (2003), and denying Petitioner's application for licensure, without prejudice for her to reapply as provided in the Department's rules.

DONE AND ENTERED this 19th day of July, 2004, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 19th day of July, 2004.

COPIES FURNISHED:

Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Michelle L. Lowe 791 Arthurs Court

Tarpon Springs, Florida 34689

Honorable Tom Gallagher, Chief Financial Officer Department of Financial Services

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

Pete Dunbar, 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: 04-000881

Orders for Case No: 04-000881