The Issue Whether or not Respondent should be disciplined for violations charged under Count I of the Administrative Complaint pursuant to Rule 210- 10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [for intentionally or negligently failing to file a report or record required by state or federal law] and pursuant to Rule 210-10.005(1)(e)1. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, inaccurate recording, falsifying or altering of patient records]; under Count II pursuant to Rule 210- 10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, acts of negligence or gross negligence, either by omission or commission]; and under Count III pursuant to Rule 210- (1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, practicing beyond the scope of the licensee's license, educational preparation or nursing experience].
Findings Of Fact At all times material, Respondent was licensed as a registered nurse in the state of Florida, Board of Nursing license number 84080-2. At all times material, Respondent was employed as a registered nurse/nurse supervisor with North Florida Reception Center (NFRC) Hospital, part of the Florida Department of Corrections. On December 13, 1989, Officer Russell Adler was on duty in 05 dormitory. It was called to Officer Adler's attention and he observed that an inmate, Artis Baker, was crawling around on the floor and was having trouble breathing. At approximately 11:29 p.m. Officer Adler turned over custody of inmate Baker to Officer Willie Hogan for escort to the emergency room. Officer Hogan escorted inmate Baker to the emergency room and went elsewhere while inmate Baker was seen by Respondent, who was the nurse on duty. Shortly thereafter, Respondent returned custody of inmate Baker to Officer Hogan. Officer Hogan testified that the Respondent informed him at that time that he, the Respondent, had given Baker a shot "to calm him down to rest." Hogan escorted inmate Baker back to his dormitory. Officer Adler testified that Hogan told him that Respondent had given Baker "some sleeping medication." However, other witnesses testified that when Respondent was questioned by Dr. Richtine and others after Baker was found dead, Respondent denied that he had medicated Baker. In light of the objective evidence of the autopsy, these contrary so-called "admissions" of Respondent are not sufficient for making a finding of fact that Respondent, did, in fact, administer any drug to Baker. See, Finding of Fact 14. Contrary to NFRC policy, neither inmate Baker's visit to the emergency room nor any medication which may have been administered by Respondent was recorded by Respondent in inmate Baker's patient record. Diane Richtine, M.D., was the on-call physician that night. Contrary to NFRC policy and protocol, Respondent never notified Dr. Richtine that there was an inmate who had presented himself to the emergency room for possible treatment. The foregoing NFRC policies requiring notations in the patient's record and the notification by the on-duty nurse to the on-call physician are contained in a written policy and procedure manual, receipt and reading of which Respondent had acknowledged in writing prior to December 13, 1989, but there was no affirmative proof that these policies or the reports/records required by them are "reports or records required by state or federal law." No statute or Florida Administrative Code rule adopting the Department of Corrections NFRC policy manual was introduced by Petitioner or referenced by any witness. Inmate Baker was returned by Officer Willie Hogan to the dormitory at approximately midnight on December 13, 1989. At 5:55 a.m. on December 14, 1989, Officer Larry Feltner was informed by other inmates that inmate Baker was not responding to the wake-up calls. Officer Feltner checked inmate Baker for a pulse, but was unable to locate one and then called the control room to inform its occupants of the incident. Sergeant Allan Ross and Captain J.D. Wainwright responded. They entered the dormitory and checked inmate Baker for a pulse, and finding none, removed Baker from his bunk and attempted to administer cardiopulmonary resuscitation. The Respondent, David Pearl, then entered the dormitory and while Captain Wainwright and Sergeant Ross were present, checked inmate Baker for life signs and found none. Baker's body was thereafter removed from the dormitory and taken to the NFRC morgue. The Respondent failed to notate inmate Baker's death on his patient records. The first notation of death was made by E. Johnson, R.N., at 8:15 a.m. on December 14, 1989. Patricia K. Bassitt, R.N., was accepted as an expert witness on general nursing practices and record keeping. In her expert opinion, Respondent's failures to notate inmate Baker's visit to the emergency room, to notate his administration of medication to inmate Baker (which administration of medication the expert witness erroneously took to be factually established), and to notate Baker's subsequent death constituted inaccurate keeping of patient records; also in her opinion, Respondent's actions constituted negligent actions and actions below minimum standards of acceptable care. Further, Ms. Bassitt opined that Respondent had acted beyond the scope of good nursing practice, had acted contrary to good nursing practice, and that his actions had been "very lacking." Despite an autopsy performed on inmate Baker, it was not possible to determine the cause of his death. Nothing beyond his regular medications for chronic hypertension was found in his system. No toxic substance, legend drug, or drug which would cause him to sleep was found.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a Final Order finding Respondent not guilty of the portion of Count I of the Administrative Complaint brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [intentionally or negligently failing to file a report or record required by state or federal law], guilty of the portion of Count I brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct, specifically, inaccurate recording of patient records]; guilty of Count II brought pursuant to Rule 210-10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically acts of simple negligence]; and not guilty of Count III brought pursuant to Rule 210-10.005(1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically practicing beyond the scope of the licensee's license, educational preparation or nursing experience], reprimanding Respondent for his actions, and placing his license on probation for two years with the special condition that he successfully complete courses in charting/assessment in addition to other normally required continuing education courses, together with a $250 administrative fine. RECOMMENDED this 27th day of February, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4408 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-5 are accepted. 6-7 are covered in FOF 6 and 10 and the conclusions of law. 8-19 are accepted. 20-22 are accepted as modified to accurately reflect the witness' testimony and to the extent they are not accepted, they are rejected as contrary to the credible record evidence. Respondent's PFOF: None submitted. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 David Pearl 1106 1/2 West Princeton Street Orlando, Florida 32804 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Should Petitioner be assessed a late fee for failure to timely file its renewal application for its Home Health license?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At times pertinent to this proceeding, Petitioner was licensed as a Non-Certified Home Health Agency, license no. HHA203220961, with an effective date of October 1, 1997, and an expiration date of September 30, 1998. The Agency furnished Petitioner an application for renewal of its license in June 1998. The renewal application was due to be filed with the Agency 60 days before the expiration of Petitioner's then current license. Petitioner's application for renewal of its then current license was received by the Agency on August 28, 1998. To avoid any late fees, Petitioner's renewal application should have been filed with the Agency no later than August 2, 1998. Petitioner's renewal application was filed 26 days late. Petitioner did not deny that its renewal application was filed late. By letter dated November 2, 1998, the Agency notified Petitioner that its renewal application had been received on August 29, 1998, when in fact the renewal application was received on August 28, 1998. The letter further advised Petitioner that it was being assessed a late fee of $2,700.00. This late fee was calculated by multiplying the number of days late (27) times $100.00 per day. The date received set out in the letter of November 2, 1999, was incorrect and the number of days should have been 26. Therefore, the correct amount of the late fee should have been $2,600.00. The lateness of the renewal application was due to a financial hardship that Petitioner was suffering at that time because Petitioner had to purchase a Medicaid surety bond. There were not enough funds for both the surety bond and application renewal fee. Petitioner has a waiver (Medicaid) for care of certain handicapped persons contracted with the Human Services Foundation which requires a surety bond. Petitioner provides respite home health aid nurses and homemaker's services. There was no evidence that Petitioner had ever been late before in filing its license renewal application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the mitigating circumstances, it is recommended that the Agency enter a final order imposing a late fee of $500.00 to be paid by Petitioner within 60 days of the date of the final order, subject to any other condition the Agency may deem appropriate. DONE AND ENTERED this 15th day of June, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1999. COPIES FURNISHED: Edmund N. Jackson, Administrator Elite Health Care Services, Inc. Post Office Box 2444 Arcadia, Florida 34265 Karel Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent properly denied Petitioner's application for a multi-state nursing license based upon his criminal and disciplinary history.
Findings Of Fact The Department is the state agency charged with regulating the practice of nursing on behalf of the State of Florida, pursuant to section 20.43 and chapters 456 and 464, Florida Statutes. The Board is charged with final agency action with respect to nurses licensed pursuant to chapter 464. Petitioner was previously licensed in South Carolina and Maryland as a Registered Nurse ("RN").1/ Petitioner also previously held a conditional license as an RN in Florida. Petitioner applied for a multi-state RN license with the Board on December 31, 2018. Section 464.0095, Article III (3)(g), prohibits a state from issuing a multi-state license to a person who has been convicted or found guilty, or has entered into an agreed disposition other than a nolle prosequi, of a felony offense. In his application, Petitioner disclosed a variety of crimes including: exploitation of a vulnerable adult; credit card fraud; assault/battery of high and aggravated nature (misdemeanor), concurrent with a second credit card theft/probation violation; attempted identity theft; and petty theft. All applicants are required to submit fingerprints with the application and the Board receives criminal history background reports. In addition to the crimes disclosed by Petitioner, his background screen revealed additional charges of: driving under the influence; defrauding hotel, inn, cafe, etc.; obtaining property by false pretenses; reckless driving; driving under suspension; and receiving stolen goods. Petitioner also disclosed that his South Carolina RN license was suspended in 2004 and then voluntarily surrendered in 2011. His Maryland RN license was revoked in 2009. Petitioner applied for an RN license in Florida in 2012 and was approved for a license conditioned upon entering into a five-year contract with the Intervention Project for Nurses ("IPN"), meeting the terms of the program, including frequent drug–testing, and completing a board approved remedial course. Petitioner voluntarily relinquished his conditional license in September 2013 due to his inability to participate in the IPN due to financial reasons. Petitioner applied for reinstatement of his conditional license in 2015 and his application was rejected by the Board based on prior discipline and his criminal history. Petitioner contends that his criminal history is unrelated to the practice of nursing. He argues that his crimes are directly related to his previous crack cocaine addiction. Petitioner has maintained long periods of sobriety and believes that his crimes, committed prior to his 2012 grant of a conditional license by the Board, should not be considered in weighing his current application. Petitioner's Prior Crimes and Licensing History On May 21, 2003, the South Carolina State Board of Nursing entered an Order of Temporary Suspension of Petitioner's license to practice as a registered nurse. The Order was based on Petitioner's: criminal charges of exploitation of a vulnerable adult and swindling; denial that he had been charged with a crime on his renewal application for reinstatement of a lapsed license; administering an antibiotic four hours late and falsely entered the time of administration in the medical record; and being arrested for Financial Transaction Card Theft. This Order of Temporary Suspension was superseded by a Final Order rendered by the Board on August 12, 2004. By this Final Order, the South Carolina Board of Nursing indefinitely suspended Petitioner's license. On March 9, 2009, the South Carolina Board of Nursing entered another Final Order against Petitioner that indefinitely suspended his license to practice nursing. This Final Order cited as grounds that: his prior license had been suspended and lapsed; he failed to disclose a criminal conviction on his August 2004 license application; he entered a South Carolina hospital, impersonated a plastic surgeon, asked a technician for $60, and manipulated her breast with his hand after a discussion of breast augmentation, which resulted in an arrest for Assault and Battery of a High and Aggravated Nature for which he was incarcerated for three years; after this release from prison, he was incarcerated in North Carolina for obtaining money by false pretenses; and he was then convicted of Attempted Identity Theft. The March 2009 South Carolina Final Order incorporated a Memorandum of Agreement between Petitioner and the State of South Carolina and outlined conditions precedent for license reinstatement and probationary terms to be imposed upon reinstatement. Petitioner never met the reinstatement conditions imposed by the March 2009 Final Order and the South Carolina Board of Nursing accepted Petitioner's Agreement of Voluntary Surrender of his nursing license on July 5, 2011. Petitioner contends these crimes were not related to the practice of nursing. He did not divert drugs from patients or medical facilities. However, he entered hospital staff lounges and stole scrubs and lab coats to impersonate medical personnel. He then pretended to be a doctor who lost or forgot his wallet. He would ask other medical professionals for cab fare which he then used to buy crack. While pretending to be a plastic surgeon, Petitioner claims that a young woman from whom he solicited money, asked him to examine her newly augmented breast because she was concerned that something was not right with the implant. Regarding the conviction for exploitation of a vulnerable adult, Petitioner claims that he was arrested while in a car borrowed from a woman with whom he regularly got high. When she was questioned, she told the police that Petitioner stole her car. Petitioner claims he was charged with exploiting a "vulnerable adult" only because the woman was bipolar and on antipsychotic medications. According to Petitioner, "It had nothing to do with nursing. She was basically my accomplice."2/ Petitioner also admitted that while he was on probation, he stole credit cards from hospitals (presumably patients and co-workers) to buy merchandise to give to his drug dealers, and that he pretended to be a doctor by dressing in scrubs to scam restaurants into giving him cash back from fraudulent transactions. By Final Order dated October 27, 2009, the Maryland Board of Nursing revoked Petitioner's license to practice as an RN. The Maryland Board cited as grounds for the revocation that Petitioner: was disciplined by a licensing, military, or disciplinary authority in this State or any other state for an act that would be grounds for disciplinary action in Maryland; knowingly performed an act that exceeds the authorized scope of practice; commits an act that is inconsistent with generally accepted professional standards of practice; is addicted to, or habitually abuses, any narcotic or controlled dangerous substance; and engaged in conduct that violates the professional code of ethics, specifically, knowingly participating in or condoning dishonesty, fraud, deceit or misrepresentation and patient abandonment. The Board's expert, Barbara Thomason, MSN, APRN, FNP- BD, credibly testified that these crimes all constitute unprofessional conduct that relate directly to the practice of nursing. Nurses are required to adhere to a strict standard of professionalism and honesty so that their vulnerable patients are not victims of opportunity. Nurses are also required to ensure the safety and well-being of their patients. Impersonating medical professionals, committing battery, fraud, theft, and failing to timely disclose these crimes to the licensing board, all relate to one's ability to practice nursing professionally. Petitioner's testimony regarding his crimes was, "I didn't do anything major. So it was wrong."3/ Regarding the young woman whose breast he manipulated, Petitioner speculated that she was coming on to him and claimed that the investigating police officer described the victim as "stupid," "an idiot" and "an airhead." It does not take expert testimony to understand that Petitioner lacks remorse, has no concept of the seriousness of his myriad offenses, and that these directly call into question his ability to practice as a nurse. Petitioner's Florida Licensing History On April 18, 2012, a Notice of Intent to Approve with Conditions was filed with the Department of Health Clerk. Petitioner was approved for licensure as an RN conditioned upon his signing an advocacy contract with the IPN and complying with any and all terms and conditions imposed by the IPN. IPN is the impaired practitioners program of the Board, designated pursuant to section 456.076. IPN monitors the evaluation, care, and treatment of impaired nurses. IPN also provides for the exchange of information between treatment providers and the Department for the protection of the public. Petitioner was also required to complete a remedial course within 12 months. Approximately one year into the IPN program, and after completing the remedial course, Petitioner had two urinalysis drug screens in a month that were suspicious due to excessive temperatures. As a result, he was requested by IPN to undergo a psychiatric evaluation. Petitioner checked prices for such an evaluation in his area and found that the least expensive evaluation would cost $600.00. Petitioner was only working part time earning $400.00 a month and could not afford the evaluation. Petitioner called the Board and was advised by administrator William Spooner to write a letter to the Board asking to voluntarily relinquish his license due to financial reasons. Mr. Spooner allegedly told Petitioner that when Petitioner was able to resume the program, he could ask for reinstatement. Petitioner was under the assumption that his reinstatement would be automatic.4/ Petitioner applied for reinstatement of his license in 2014. On October 8, 2014, a NOID for Petitioner's application for endorsement as an RN was filed with the Department of Health Clerk. The Board based this denial on the grounds that Petitioner: entered a guilty plea to a charge of assault and battery; was convicted of identity theft by impersonating a physician; had his South Carolina RN license suspended; and had his Maryland license revoked. After conducting a hearing not involving disputed issues of material fact in accordance with sections 120.569 and 120.57(2), Florida Statutes, on the allegations contained in the NOID, the Board voted to deny the licensure application. The Final Order was filed on January 14, 2015. Petitioner's Criminal History since 2015 and Rehabilitation After the license denial, Petitioner relapsed and began using drugs again. Between 2015 and June 2017, he pled no contest and was convicted of three more misdemeanor thefts. Prior to this relapse, Petitioner was sober for 9 years and 11 months. Petitioner testified that during 2015 through 2017, he stole to feed himself. Petitioner has been sober again since December 16, 2017. Petitioner has made significant efforts to maintain his sobriety. Petitioner moved into a halfway house, rejoined AA, has a sponsor, serves as clergy and a lay minister to inmates at the Broward County jail and detention center, and is involved in his church. Petitioner works as a telemarketer and his vocational rehabilitation job counselor, Larry Hinton, testified that Petitioner is a reliable worker who is also working hard on his recovery. Petitioner received no fines or orders of restitution related to his crimes. He served his prison time and successfully completed probation and has a full restoration of his voting rights. Petitioner waited for a year of sobriety and after his most recent conviction of theft before reapplying for licensure. On March 15, 2019, the Board issued a NOID on Petitioner's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Board of Nursing enter a Final Order denying Petitioner's application for a multi-state RN license. DONE AND ENTERED this 16th day of October, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2019.
Findings Of Fact Respondent was licensed to operate Lakeside Health Center, 2501 Australia Avenue, West Palm Beach, Florida, at all times material to this proceeding. It currently holds Skilled Nursing Facility License No. 238, issued by Petitioner. Pursuant to Subsection 400.111(1), Florida Statutes, such licenses must be renewed annually. Respondent's annual license expires on June 30. Prior to revision of this statute by the 1980 Legislature (Chapter 80-186), renewal applications were required 60 days prior to the expiration date. Thereafter, such renewal applications were required to be submitted to Petitioner 90 days prior to expiration. Additionally, the revised statute established a daily late charge equal to 50 percent of the preceding annual renewal fee. Respondent's application for its 1981-82 license renewal was due on April 2, 1981, which was 90 days prior to expiration. The application was actually filed on June 8, 1981, which is 67 days after the due date. Its previous renewal fee (1980-81) was $194. Fifty percent of this amount, $97, multiplied by 67 days equals $6,499, the amount of the late fee which Petitioner seeks to impose. Although it is not required by statute or rule to do so, Petitioner reminds licensees of their renewal obligation sufficiently in advance to preclude inadvertent delay. Additionally, Petitioner sent a form letter to all nursing home administrators on August 11, 1980, advising them of the revisions to Subsection 400.111(1), Florida Statutes. Petitioner's first notification to Respondent regarding the renewal deadline for its 1981-82 license was dated January 7, 1981. However, this letter was misaddressed and Respondent's denial of receipt is accepted. Petitioner's second notification was dated January 21, 1981, and was properly addressed. The letter was processed in due course by Petitioner's Licensing and Certification Office and was presumably received by the addressee, although Respondent denies this. Renewal letters were sent by ordinary mail at that time, but are now certified. Respondent argues that the January 21 letter misstated the due date as March 16, 1981, rather than the correct date of April 2. This was harmless error, however, and had no effect on Respondent's delay. Similarly, the requirement contained in this letter that renewals be filed with the local county health unit rather than directly with Petitioner in no way caused or contributed to Respondent's delayed filing. During the period when license renewal should have taken place, Respondent was experiencing changes in its administration and overlooked the renewal requirement. An interim administrator telephoned Petitioner's Jacksonville office in November, 1980, to inquire about renewal, and was told the forms would be finished automatically prior to the due date. This was the purpose of Petitioner's January 7 and January 21 letters, which Respondent denies receiving. Petitioner's third letter, dated May 22, 1981, intended to be a further reminder, was received and acted on by Respondent, prior to expiration of its 1980-81 license. By then, however, the $6,499 penalty had accrued.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing Respondent a late fee of $6,499 on the basis of its delay in applying for renewal of its license to operate a skilled nursing facility for the period beginning July 1, 1981. DONE AND ENTERED this 8th day of March, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1982. COPIES FURNISHED: Robert P. Daniti, Esquire Licensure and Certification Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mark P. Lang, Esquire, and Stephen W. Pickert, Esquire DEMPSEY AND SLAUGHTER, P.A. Suite 610, Eola Office Building 605 East Robinson Street Orlando, Florida 32801
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by Respondent dismissing its claim against Petitioner for recaptured depreciation. DONE and ENTERED this 19th day of August, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1982.
The Issue The issue in this case is whether Petitioner should be allowed to take the examination for licensure as a life and health insurance agent in the state of Florida despite the fact that Petitioner conducted business in this state as a life and health agent under a nonresident license when in fact he was a resident of Florida, and after his Virginia resident license had been canceled.
Findings Of Fact Petitioner filed an application with Respondent for examination and licensure as an ordinary life and health insurance agent on or about February 24, 1986. His application indicates he is a resident of Florida, and had been a resident for one year and three months at the time he filed his application. In response to a question about licensure in other states, the application states, "License in Virginia 1976 to present." From November, 1984 until April 25, 1986, Petitioner conducted business as an ordinary life and health insurance agent in the State of Florida under a nonresident license issued to him in November, 1984. During this time, he sold one hundred and twenty-five insurance policies in the State of Florida on a full- time basis, and there is no evidence he sold any policies in Virginia. On his application for nonresident licensure in October, 1984, Petitioner indicated he was licensed in Virginia, and would be active in the insurance business in Florida for two months per year. Petitioner was licensed as a life and health insurance agent in Virginia from April 13, 1979 to July 9, 1985, at which time his license was canceled without prejudice for nonpayment of required annual renewal fees. Since November, 1984 Petitioner has resided permanently in the Tampa area, although when he initially arrived in Florida he did not know if he would remain permanently. At all times material hereto, Petitioner has worked as an insurance agent for Mutual of Omaha Insurance Company. From November 24, 1984, he worked out of the company's Tampa office, and prior to that time he worked out of their office in Roanoke, Virginia. Mutual of Omaha transferred company records regarding Petitioner to Tampa on November 24, 1984. According to Petitioner, it was his understanding that the Roanoke office of Mutual of Omaha would take care of paying his annual license renewal fees in Virginia. Ken Boulden, Assistant Vice President for Licensing at Mutual of Omaha, confirmed that some of the company's local offices pay their agents' license fees, but this is not a general company policy, and he could not confirm whether this was the policy of the Roanoke office. It does not appear that Petitioner intentionally falsified his application of February 24, 1986 regarding his license status in Virginia. He first learned of the cancellation of his Virginia license on April 25, 1986, and up to that time assumed that Mutual of Omaha's Roanoke office was taking care of the payment of his annual renewal fees. Petitioner correctly completed his February 24, 1986 application by indicating he had been a resident of Florida for one year and three months. In view of this, however, Petitioner did not timely file his application for examination and licensure since he worked exclusively, and on a full-time basis, in Florida from November, 1984 to April 25, 1986 under a nonresident license. He has not conducted insurance business in Florida since April 25, 1986, pending the determination of this case. On or about August 5, 1986, Respondent notified Petitioner of its intent to deny his application for examination and licensure based upon the facts set forth above, and Petitioner timely filed his request for a hearing.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order approving Petition's application for examination and licensure filed on or about February 24, 1986. DONE AND ENTERED this 11th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32381 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3723 Rulings on Respondent's Findings of Fact: 1,2. Adopted in Finding of Fact 2. Rejected as irrelevant and unnecessary, and outweighed by other competent substantial evidence. Adopted in Findings of Fact 2,4,5. COPIES FURNISHED: George Jesse Bailey 5505 Pine Forest Ct. #101 Tampa, Florida 33615 David G. Poucher, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32301 =================================================================
