STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL ARMIN TORO, )

)

Petitioner, )

)

vs. ) Case No. 06-0392

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

______ )

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on April 4, 2006, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: No Appearance

For Respondent: Dean Andrews, Esquire

Department of Financial Services Division of Legal Services

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a "resident public all lines insurance adjuster" should be approved.

PRELIMINARY STATEMENT

By letter dated December 22, 2005, the Department of Financial Services (Department) notified Petitioner that it was denying his application for licensure as a "resident public all lines insurance adjuster" based upon Petitioner's 1989 entry of plea of guilty to credit card-related felony charges in Dade County Circuit Court Case No. 89-004970 and his subsequent entry of a plea of nolo contendere to a felony child abuse charge in Miami-Dade County Circuit Court Case No. F00-8233.

Through submission of a completed and signed Election of Proceedings Form, Petitioner requested "a hearing pursuant to Section 120.57(1), Florida Statutes, to be held before the Division of Administrative Hearings." The matter was referred to DOAH on January 31, 2006, for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.

The hearing was scheduled by video teleconference at sites in Miami and Tallahassee for April 4, 2006, commencing at

9:00 a.m. Petitioner and the Department were provided with written notice of the scheduled hearing in accordance with

Section 120.569(2)(b), Florida Statutes. Such notice was in the form of a Notice of Hearing by Video Teleconference mailed on February 15, 2006, to Petitioner and the Department's counsel of record, Dean Andrews, Esquire.

The Department appeared at the hearing, which was held as scheduled on April 4, 2006, through its counsel of record, Mr. Andrews. Petitioner, on the other hand, did not make an appearance at the hearing, either in person or through counsel

or any other authorized representative. (The undersigned waited approximately 45 minutes for Petitioner to make an appearance before going on the record.)

The Department offered into evidence four exhibits (Respondent's Exhibits 1 through 4). All four exhibits were received into evidence. The Department presented no testimonial evidence.

At the close of the taking of evidence, the undersigned established a deadline (April 24, 2006) for the filing of proposed recommended orders.

The Department filed its Proposed Recommended Order on April 10, 2006. To date, Petitioner has not filed any post- hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. On or about February 27, 1989, a six-count criminal information was filed in Dade County Circuit Court Case No. 89- 4970 against Petitioner.

2. Count I of the information alleged that Petitioner:

   
   

   on the 6th day of February, 1989, in the County [of Dade] and State [of Florida], did unlawfully and feloniously utter and publish as true to and upon DALLY SHUAIB and/or CAMPEAU CORPORATION, doing business as BURDINES, a certain false, forged or counterfeited and printed order or receipt for delivery or merchandise commonly known as a CREDIT CARD RECEIPT or RECORD OF

   CHARGE, upon which credit card receipt or record of charge the defendant or a person whose name or identity is to the State Attorney unknown, did forge the signature of MICHAEL YAMAGUCHI, thereon, with the intent thereby to injure of defraud MICHAEL YAMAGUCHI and/or DALLY SHARUIB and/or CAMPEAU CORPORATION, doing business as BURDINES or other person or persons whose name or names and identity are to the State Attorney unknown, the defendant at the said time and place well knowing that the said credit card receipt or record of charge was false and forged aforesaid, in violation of

   831.02 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

3. Count II of the information alleged that Petitioner: on the 6th day of February, 1989, in the

   County [of Dade] and State [of Florida], did unlawfully and feloniously with intent to defraud CAMPEAU CORPORATION, doing business as BURDINES and/or MICHAEL YAMAGUCHI use for the purpose of obtaining goods, to wit: CLOTHING a credit card which he knows is stolen by representing without the consent of the card holder that he is the holder of

   the specified card, and such card has not in fact been issued, in violation of 817.61 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

   
   

4. Count III through VI of the information each alleged that Petitioner:

   on the 6th day of February, 1989, in the County [of Dade] and State [of Florida], having received a credit card, property of MICHAEL YAMAGUCHI, as owner and custodian, which he knew had been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, did then and there unlawfully retain possession of said credit card, with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder, in violation of 817.60 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

   
   

5. On April 17, 1989, Petitioner entered a plea of nolo contendere to all six counts of the information (1989 Plea). Adjudication of guilt was withheld, and he was placed on probation for one year.

6. On or about March 31, 2000, a one-count criminal information was filed in Miami-Dade County Circuit Court Case No. F00-8233, alleging that Petitioner:

   on or about MARCH 1, 2000, in the County [of Miami-Dade] and State [of Florida], did unlawfully, willfully, and knowingly inflict physical injury upon a child, to wit: A. C. (A MINOR), without causing great bodily

   harm, permanent disability, or permanent disfigurement to said child, by SLAPPING

   1. C. (A MINOR) IN THE FACE, in violation of

      s. 827.03(1), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

      
      

7. On July 17, 2000, Petitioner entered a plea of nolo contendere to the charge (2000 Plea). Adjudication of guilt was withheld, and he was placed on 18 months' probation.

   CONCLUSIONS OF LAW

   
   

8. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

9. Petitioner is seeking to be licensed by the Department as an adjuster.

10. Upon receiving such an application for licensure, the Department must act in accordance with the requirements of Section 120.60, Florida Statutes.

11. Section 120.60(3), Florida Statutes, provides as follows:

    Each applicant shall be given written notice either personally or by mail that the agency intends to grant or deny, or has granted or denied, the application for license. The notice must state with particularity the grounds or basis for the issuance or denial of the license, except when issuance is a ministerial act. Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has requested notice of agency

    action. Each notice shall inform the recipient of the basis for the agency decision, shall inform the recipient of any administrative hearing pursuant to ss.

    120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, shall indicate the procedure which must be followed, and shall state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the certification shall be filed with the agency clerk.

    
    

12. In the instant case, in accordance with Section 120.60(3), Florida Statutes, the Department has notified Petitioner of its intent to deny his application for licensure based on his 1989 Plea and 2000 Plea, citing Sections 626.611 and 626.621, Florida Statutes, and Florida Administrative Code Rule 69B-211.042 as authority for such action.

13. Section 626.611(14), Florida Statutes, provides, in pertinent part, as follows:

    The department shall deny an application for . . . license . . . of any

    applicant . . ., if it finds that as to the applicant . . . any one or more of the following applicable grounds exist:

    
    

    [H]aving pleaded . . . nolo contendere to a felony . . . which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such case[].

    
    

14. Section 626.621(8), Florida Statutes, provides, in pertinent part, as follows:

    The [D]epartment may, in its discretion, deny an application for . . . 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:

    
    

    [H]aving pleaded . . . nolo contendere to a felony . . . , without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such case[].

    
    

15. Florida Administrative Code Rule 69B-211.042 "applies to applications for licensure as an agent, adjuster, sales representative, or other licensure under the Florida Insurance Code," and it "implement[s] the Department's duty under Section 624.307(1), Florida Statutes, to enforce Sections 626.207, 626.611(7) and (14), and 626.621(8), Florida Statutes, by establishing standards for granting licensure applications described in those statutory sections, and interpreting provisions in those sections as they relate to penalties imposed upon applicants [seeking such licensure]." Fla. Admin. Code R. 69B-211.040. It provides, in pertinent part, as follows:

    (1) General Policy Regarding Conduct Prior to Licensure. The Department is concerned with the law enforcement record of applicants for the purpose of ascertaining from those records whether the person would represent a significant threat to the public welfare if licensed under Chapter 626, Florida Statutes. It is no part of the Department's responsibilities, and the Department does not attempt, to "penalize,"

    "discipline," or "punish" any person concerning any conduct prior to licensure.

    
    

    * * *

    
    

    1. Policy Specifically Concerning Effect of Criminal Records.

       
       

       1. The Department interprets Sections 626.611(14) and 626.621(8), Florida Statutes, which subsections relate to criminal records, as applying to license application proceedings. The Department interprets those statutes as not limiting consideration of criminal records to those crimes of a business-related nature or committed in a business context. More specifically, it is the Department's interpretation that these statutes include crimes committed in a non-business setting, and that such crimes are not necessarily regarded as less serious in the license application context than are crimes related to business or committed in a business context.

    
    

    * * *

    
    

    1. Classification of Felony Crimes.

       
       

       1. The Department makes a general classification of felony crimes into three classes: A, B and C, as listed in subsections (21), (22) and (23) of this rule. The lists refer only to such crimes when they are felonies, since certain of the crimes could be misdemeanors in some jurisdictions and felonies in other jurisdictions.

          
          

       2. These classifications reflect the Department's evaluation of various crimes in terms of moral turpitude, and of the seriousness of the crime as such factors relate to the prospective threat to public welfare typically posed by someone who would commit such a crime.

       3. The names or descriptions of crimes, as set out in the classification of crimes, are intended to serve only as generic names or descriptions of crimes and shall not be read as legal titles of crimes, or as limiting the included crimes to crimes bearing the exact name or description stated.

          
          

       4. The lists are not all-inclusive. Where a particular crime involved in an application is not listed in this rule, the Department has the authority to analogize the crime to the most similar crime that is listed. No inference is to be drawn from the absence of any crime from this list, to the effect that said crime is not grounds for adverse action under this rule.

          
          

       5. In evaluating law enforcement records, the Department shall use the highest classification into which the crime fits, where "A" is the highest classification.

       
       

       * * *

       
       

    2. Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date.

       
       

       1. Class A Crime. The applicant will not be granted licensure until 15 years have passed since the trigger date.

          
          

       2. Class B Crime. The applicant will not be granted licensure until 7 years have passed since the trigger date.

       3. Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date.

          
          

          * * *

          
          

    3. Applicants With Multiple Crimes.

       
       

       1. The Department construes Sections 626.611 and 626.621, Florida Statutes, to require that an applicant whose law enforcement record includes multiple felony crimes wait longer than those whose law enforcement record includes only a single felony crime before becoming eligible for licensure in order to assure that such applicant's greater inability or unwillingness to abide by the law has been overcome. Therefore, the Department finds it necessary that a longer waiting period be utilized in such instances, before licensure can safely be granted. Accordingly, where the applicant has been found guilty or pled guilty or pled nolo contendere to more than one felony or to a felony and one or more misdemeanors, or to a combination of misdemeanors and felonies, the Department shall add 5 years to the waiting period for each additional felony or insurance-related misdemeanor, or misdemeanor involving a breach of trust or dishonesty, and one year each for all other misdemeanors.

          
          

       2. The additional periods are added to the basic waiting period for the one most serious crime, and the combined total waiting period then runs from the trigger date of the most recent misdemeanor or felony crime.

          
          

       3. Classification as "Single Crime" versus "Multiple Crimes." Multiple criminal charges arising out of the same act, or related acts performed over a relatively short period of time and in a concerted course of conduct, are treated by the Department as one crime for application of

       this rule. The Department will generally process the one most serious of the charges as if it were the only crime. However, charges describing separate but similar acts are treated as multiple crimes.

       
       

    4. Mitigating Factors.

       
       

       1. The usual waiting period specified above shall be shortened upon proof of one or more of the following as are pertinent. Where more than one factor is present the applicant is entitled to add together all the applicable mitigation amounts and deduct that total from the usual waiting period, provided that an applicant shall not be permitted an aggregate mitigation of more than 4 years for the following factors:

          
          

          1. One year is deducted if the probation officer or prosecuting attorney in the most recent crime states in a signed writing that the probation officer or prosecuting attorney believes the applicant would pose no significant threat to public welfare if licensed as an agent or other insurance representative.

             
             

          2. One year is deducted if restitution or settlement has been made for all crimes wherein restitution or settlement was ordered by the court, and proof of such restitution or settlement is shown in official court documents or as verified in a signed writing by the prosecuting attorney or probation officer.

             
             

          3. One year is deducted if the applicant was under age 21 when the crime was committed, if there is only one crime on the applicant's law enforcement record. This mitigating factor shall not be applicable to an applicant who qualifies for 3 years of mitigation pursuant to mitigating factor 4 immediately below.

          4. Three years are deducted if the applicant was under age 21 when the crime was committed, if there is only one crime on the applicant's law enforcement record, and if that single crime is not insurance- related and does not involve moral turpitude or a breach of trust or dishonesty.

             
             

          5. One year is deducted if the applicant furnishes proof that the applicant was at the time of the crime addicted to drugs or suffering active alcoholism. The proof must be accompanied by a written letter from a properly licensed doctor, psychologist, or therapist licensed by a duly constituted state licensing body stating that the licensed person has examined or treated the applicant and that in his or her professional opinion the addiction or alcoholism is currently in remission and has been in remission for the previous 12 months. The professional opinion shall be dated within 45 days of the time of application.

             
             

          6. Other Mitigating Factors. An applicant is permitted to submit any other evidence of facts that the applicant believes should decrease the waiting period before licensure is allowed based on the standard in Section 626.207, Florida Statutes.

          
          

       2. The burden is upon the applicant to establish these mitigating factors. Where the mitigating factor relates to or requires evidence of government agency or court action, it must be proved by a certified true copy of the agency or court document.

       
       

    5. Circumstances Not Constituting Mitigation. The Department finds that no mitigating weight exists in the provisions of Sections 626.611 and 626.621, Florida Statutes, and none will be given, for the following factors:

    1. Type of Plea. The Department draws no distinction among types of pleas; i.e., found guilty; pled guilty; pled nolo contendere.

       
       

    2. Collateral Attack on Criminal Proceedings. The Department will not allow or give any weight to an attempt to re- litigate, impeach, or collaterally attack judicial criminal proceedings or their results wherein the applicant was found guilty or pled guilty or nolo contendere. Thus the Department will not hear or consider arguments such as: the criminal proceedings were unfair; the judge was biased; the witnesses or prosecutor lied or acted improperly; the defendant only pled guilty due to financial or mental stress; the defendant was temporarily insane at the time of the crime; or the defendant had ineffective counsel.

       
       

    3. The Department finds that subjective factors involving state of mind, generally have no mitigating weight.

    
    

    * * *

    
    

    (21) Class "A" Crimes include all those listed in this subsection, where such crimes are felonies, and all are of equal weight notwithstanding from which subparagraph they are drawn. The Department finds that each felony crime listed in this subsection is a crime of moral turpitude.

    
    

    * * *

    
    

    (r) Child abuse.

    
    

    * * * (uu) Credit card fraud.

    * * *

16. "Trigger [d]ate," as used in Florida Administrative Code Rule 69B-211.042, "is the date on which an applicant was found guilty, or pled guilty, or pled nolo contendere to a crime; or, where that date is not ascertainable, the date of the charges or indictment." Fla. Admin. Code R. 69B-211.041(11).

17. The unrebutted evidence presented by the Department at hearing held in the instant case establishes that Petitioner pled nolo contendere to the "Class A Crime" of "[c]redit card fraud" on April 17, 1989 and that he pled nolo contendere to the "Class A Crime" of "[c]hild abuse" on July 17, 2000.

18. No evidence was presented that there exist in this case any "mitigating factors" as described in Florida Administrative Code Rule 69B-211.042(10).

19. Accordingly, pursuant to Florida Administrative Code Rule 69B-211.042, Petitioner must wait until July 17, 2020 (which is a total of 20 years--15 for the 1989 Plea and an additional five for the 2000 Plea--from the "trigger date" of the 2000 Plea), before becoming eligible for licensure as an adjuster.

20. Since this "waiting period" imposed by Florida Administrative Code Rule 69B-211.042 has not yet expired, Petitioner's application for licensure now before the Department must be denied.

RECOMMENDATION

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

RECOMMENDED that the Department issue a final order denying Petitioner's application for licensure.

DONE AND ENTERED this 25th day of April, 2006, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 25th day of April, 2006.

COPIES FURNISHED:

Michael Armin Toro

490 Southwest 101st Terrace Plantation, Florida 33324

Dean Andrews, Esquire Department of Insurance Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Honorable Tom Gallagher Chief Financial Officer The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Carlos G. Muniz, 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: 06-000392

Orders for Case No: 06-000392