The Issue The issues for determination are: (1) whether Respondent violated the provisions of the Insurance Code as alleged in the Administrative Complaint by pleading guilty to a felony and failing to report such plea to the Petitioner; (2) whether the offense to which Respondent pleaded guilty is a crime involving moral turpitude; and (3) if yes to either of the foregoing, what penalty should be imposed on Respondent's license as a non- resident life and health insurance agent.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed in the State of Florida as a non-resident life and health insurance agent. Respondent has been a licensed insurance agent for twenty-four years, having first been licensed in Florida in 1994. In addition to holding a Florida insurance license, Respondent is also licensed as an insurance agent in North Carolina. On or about January 13, 1997, an information was filed in the Sixth Judicial Circuit, in and for Pasco County, Florida, Case No. 97-00245CFAWS, charging Respondent with one count of scheme to defraud. This offense constitutes a felony. On September 4, 1997, Respondent pled guilty to the charge of scheme to defraud. The judge withheld adjudication of guilt, placed Respondent on probation for three years, and indicated that he would consider early termination of probation after Respondent served 50 percent of his sentence. On September 12, 1997, the court entered a written Order Withholding Adjudication of Guilt and Placing Defendant on Probation that stated in part the following: It appearing to the satisfaction of the court that you are not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that you should presently be adjudged guilty and suffer the penalty authorized by law. Now, therefore, it is ordered [and] adjudged that the adjudication of guilt [and] imposition of sentence are hereby withheld, [and] that you are hereby placed on probation for a period of three years under the supervision of the Department of Corrections subject to the Florida law. . . . Respondent did not inform the Department that he pled guilty to a felony and was on probation as required by Section 626.621 (11), Florida Statutes. The reason that Respondent failed to report the guilty plea and probation was that he believed that it was unnecessary because he was not adjudicated guilty. The aforementioned criminal charge against Respondent and his ultimate guilty plea to the felony of scheme to defraud stemmed from an incident that occurred in 1996. At that time, Respondent was unable to obtain automobile loans due to his bad credit resulting from his divorce. In order to obtain a loan from First Union Bank to purchase automobiles for himself, his wife, and his daughter, Respondent used the name and social security number of his brother, Mark Wilson. As a result of using his brother's name and social security number, Respondent was able to obtain a loan for $43,000.00 to purchase three vehicles, a 1993 Grand Prix, a 1990 Eagle Talon, and a 1995 Lincoln. Several months after Respondent obtained the loan, his brother, Mark Wilson, discovered the loans were on his credit record. Thereafter, Mark Wilson's credit record was corrected and Respondent entered into a stipulated settlement with First Union, whereby he agreed to pay the loans and First Union's attorney's fees incurred in connection with the case. Respondent's brother did not file charges against him. Respondent was current on the loan payments when Mark Wilson, Respondent's brother, learned that loans had been taken out in his name. At the time of the hearing, on August 5, 1998, the loans had been paid down to approximately $7,800.00, and Respondent was current in paying the balance. No person or entity lost any money as result of Respondent's actions. At the time Respondent used the aforementioned deception to obtain the automobile loans, he was very depressed and was undergoing psychological therapy by Marcia N. Davis, a licensed therapist in Asheville, North Carolina. Respondent has continued to undergo psychological treatment by Marcia N. Davis. Her current prognosis is that Respondent has made definite improvement and that she would not expect that he would break the law again. The criminal charge against Respondent was not related to any action taken by Respondent in his role as a licensed insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a Final Order be entered suspending the license of Respondent, Perry Murray Wilson, for two months. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998. COPIES FURNISHED: Patrick Creehan, Esquire Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul B. Johnson, Esquire Post Office Box 3416 Tampa, Florida 33601 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue to be determined is whether Petitioner's application for licensure should be granted.
Findings Of Fact Respondent, Department of Financial Services, is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes. On January 6, 2004, Respondent received an application from Petitioner for temporary licensure as a life and health insurance agent. Petitioner answered "no" to the following question on that application: Have you ever been 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? At the end of the application, immediately above a space for the applicant's signature and in a section of the application titled "Applicant Affirmation Statement," appears the following language: 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). Pursuant to the instructions on the form, Petitioner signed the application, dated it December 12, 2003, and mailed it to Respondent. As documented by General Court Martial Order No. 17-01 of Sea Control Squadron Three Two at the Naval Air Station, Jacksonville, Florida, obtained by Respondent during the application process, Petitioner, on January 18, 2001, entered a plea of guilty to the charge of Distribution of Ecstasy, a Felony, and was found guilty of the offense. Petitioner was sentenced to confinement for a period of 40 months, and reduction to pay grade E-1, and subjected to dishonorable discharge. A portion of the sentence was suspended upon the issuance of the dishonorable discharge, following an order of Rear Admiral Jan C. Gaudio on May 30, 2002. By correspondence to Respondent, received on June 29, 2004, and through his testimony at the final hearing, Petitioner asserted that his attorney at the time informed him that his criminal record would never be seen outside the military. Notwithstanding his attorney’s assurance, Petitioner informed two subsequent employers that he thought he had a felony record. When those employers checked and discovered no convictions, he assumed the records were sealed as his previous attorney had assured him would be the case. Accordingly, he did not disclose the matter on his application. By Notice of Denial dated June 7, 2004, Respondent informed Petitioner that his application was denied for violations of Sections 626.611, 626.621(8), 626.785(1), and 626.831(1), Florida Statutes. Additionally, the denial informed Petitioner of required waiting periods set forth in Florida Administrative Code Rule 69B-211.042. In Petitioner’s case, he was also informed that a 16-year waiting period would be required before reapplication could be considered by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent acted properly in denying Petitioner’s application. DONE AND ENTERED this 4th day of January, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 4th day of January, 2005. COPIES FURNISHED: Gregg Allen Brewer 9342 Cumberland Station Drive Jacksonville, Florida 32257 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Peter Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue At issue is whether Respondent’s license as insurance agent should be revoked for providing false answers under oath to questions regarding his criminal history on his application for licensure.
Findings Of Fact On March 28, 2000, Respondent executed under oath an application for licensure. Included on the application were the following questions: Have you ever been convicted, found guilty, or pleaded 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 a judgment of conviction has been entered? Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not a judgment of conviction has been entered? As to both of these questions, Respondent answered-- falsely--"No." Respondent was subsequently licensed as an insurance agent. Had he accurately answered these questions, his application for licensure would have been denied. By way of defense, Respondent contends that he was misled by comments made by the trial judge who sentenced him. Respondent testified that at the time he executed his application, he believed, based upon what the judge had said at sentencing, that the charges to which Respondent had pleaded no contest did not constitute a felony and did not carry a sentence of greater than one year in prison. A transcript of Respondent's sentencing would provide a verbatim record of what the judge said, and would afford the fact finder an opportunity to form an opinion as to whether Respondent could have reasonably believed that he could appropriately answer "no" to the above-quoted questions. All criminal sentencing hearings in Florida are, as a matter of course, attended by a court reporter. However, Respondent did not introduce a transcript of his sentencing into evidence in this hearing, nor did he provide an explanation as to why a transcript could not be made available. Neither did Respondent offer any testimony other than his own in support of his claim that he had been misled by the sentencing judge as to the nature of the charges to which he plead and/or the maximum sentence permitted under the law. Respondent's own memory as to the details of his crime and punishment was very poor. Thus, there is no factual basis upon which it can be concluded that Respondent's failure to accurately respond to questions regarding his criminal history may be attributed to the failure of the judge who sentenced him to clearly communicate, rather than Respondent's own negligence in responding to the questions concerning his criminal background. It is noted on the face of the application that it is the applicant's burden to provide accurate information, and the failure to do so will result in a denial of licensure. Even if the evidence established that Respondent's misstatements were made in good faith, the outcome of this proceeding would be the same. As noted above, under Florida law, a "yes" answer to either of the above-noted questions would have required the state to deny Respondent's application for licensure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order revoking Respondent's license and eligibility for licensure. DONE AND ENTERED this 7th day of April, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 7th day of April, 2003. COPIES FURNISHED: R. Terry Butler, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 James E. Loper 4105 North University Drive Number J-206 Sunrise, Florida 33351 James E. Loper 18217 Northwest 61st Place Miami, Florida 33015 Honorable Tom Gallagher Treasurer and 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
