STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLAN AYALA, )

)

Petitioner, )

)

vs. ) Case No. 06-1873

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on July 13, 2006.

Respondent's counsel and witness appeared in Tallahassee. Petitioner and the court reporter participated by videoconference in Miami, Florida.

APPEARANCES

For Petitioner: Allan Ayala, pro se

16383 Southwest 74th Terrace Miami, Florida 33193

For Respondent: Gautier Kitchen

Department of Financial Services Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to licensure as a resident public all lines insurance adjuster.

PRELIMINARY STATEMENT

By letter dated May 4, 2006, Respondent informed Petitioner that it was denying his application for licensure as a resident public all lines insurance adjuster. The letter explains that, on July 8, 1999, Petitioner entered a plea of nolo contendere to the charge of possession with intent to sell or deliver cocaine, which was a felony, and the court withheld adjudication of guilt. Citing Section 626.621(8), Florida Statutes, and Florida Administrative Code Rule 69B-211.042(8), respectively, the letter states that Respondent has the discretion to deny a license application and has exercised its discretion to require a waiting period of 15 years from the date of the plea.

Petitioner timely requested a hearing.

At the hearing, Petitioner called one witness and offered into evidence five exhibits: Petitioner Exhibits 1-5.

Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted.

The court reporter filed the transcript on July 26, 2006.

Respondent filed its proposed recommended order on August 1, 2006.

FINDINGS OF FACT

1. On August 5, 2005, Petitioner filed with Respondent an application for licensure as a Residential Public All Lines Insurance Adjuster (3-20). In the application, Petitioner stated that, on July 8, 1999, he had entered a plea of nolo contendere to a felony charge of possession of cocaine with the intent to sell.

2. In supplementation of his application, Petitioner stated in a letter to Respondent dated April 5, 2006, that the crime was a "mistake" that "dishonored myself and my family," and "[t]his is something that I would never want to experience again." Petitioner displayed the same sincere remorse during the hearing.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat.

4. Section 626.621(8), Florida Statutes, authorizes Respondent, in its discretion, to deny an application for licensure if the applicant has pleaded nolo contendere to a felony, without regard to whether a judgment of conviction was entered.

5. Florida Administrative Code Rule 69B-211.042(21)(fff) defines the possession with intent to sell controlled substances

   as a Class A felony. Florida Administrative Code Rule

   
   

   69B-211.042(8) provides for a waiting period of 15 years from the "trigger date" for applicants for licensure who have entered pleas of nolo contendere to a Class A felony. Rule

   69B-211.041(11) defines the trigger date as the date on which the applicant entered a plea of nolo contendere.

6. Only seven years have elapsed since Petitioner entered a plea of nolo contendere to the felony of possession of cocaine with intent to sell. Florida Administrative Code Rule

69B-211.042(10)(a) permits no more than four years' mitigation of the waiting period, so any consideration of mitigation at this time would be premature.

RECOMMENDATION

It is

RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's application for licensure.

DONE AND ENTERED this 15th day of August, 2006, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 15th day of August, 2006.

COPIES FURNISHED:

Honorable Tom Gallagher Chief Financial Officer

Department of 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

Allan Ayala

16383 Southwest 74 Terrace

Miami, Florida 33193

William G. Kitchen, Esquire Department of Financial Services Division of Legal Services

200 East Gaines Street Tallahassee, Florida 32399-0333

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-001873

Orders for Case No: 06-001873