The Issue Whether Petitioner's application for licensure as a health insurance agent should be granted.
Findings Of Fact By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded 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? In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Naomi A. Visser for licensure as a health insurance agent. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 21st day of January, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Naomi A. Visser 1617 London Grove Port Road Grove City, Ohio 43123 Honorable Tom Gallagher 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
The Issue The issue in this case is whether Respondent, Amelia Kay Jacobs, committed the offenses alleged in an Administrative Complaint entered by the Insurance Commissioner of the State of Florida on February 20, 1998.
Findings Of Fact Petitioner, the Department of Insurance (hereinafter referred to as the "Department"), is an agency of the State of Florida charged with the responsibility for, among other things, the licensing and discipline of insurance representatives in Florida. Chapter 626, Florida Statutes (1997). Respondent, Amelia Kay Jacobs, is currently licensed by the State of Florida as a nonresident life and health agent. Ms. Jacobs agent number is 510427789. On or about July 24, 1980, a Complaint/Information was filed in the District Court of the Eighteenth Judicial District in and for Sedgwich County, Kansas, charging Ms. Jacobs with one count of Giving a Worthless Check in violation of Section 21- 3707, Kansas Statutes, a Class E Felony. On or about April 28, 1981, Ms. Jacobs entered a plea of guilty to the charge of Giving a Worthless Check before the Kansas District Court. The Court adjudicated Ms. Jacobs guilty as charged, but withheld sentencing for a period of one year from June 26, 1981. Ms. Jacobs was subsequently released early from probation. On or about May 20, 1996, Ms. Jacobs swore to and signed an Insurance License Application (hereinafter referred to as the "Application") with the Department. Ms. Jacobs filed the Application seeking licensure as a nonresident life and health agent. On the Application Ms. Jacobs, while under oath, responded "NO" to the following questions: 13. Have you ever been convicted of, found guilty of, or pleaded no contest to a crime involving moral turpitude No (yes or no), or a felony No (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or country, whether or not a judgment of conviction has been entered? No (yes or no) If yes, give date(s): N/A Ms. Jacobs knew or should have known that her answers to question 13 were false and a material misrepresentation of fact. The Department relied upon the incorrect misrepresentation of Ms. Jacobs to question 13 on the Application in approving the Application. Ms. Jacobs was informed by the Department by letter dated August 14, 1996, that the Department had received information concerning the foregoing. The Department gave Ms. Jacobs an opportunity to explain the incident or to withdraw her Application because she was a first-time applicant still on probation. On or about February 20, 1998, the Insurance Commissioner entered an Administrative Complaint against Ms. Jacobs. The complaint was based, in part, on the incident described, supra. On or about February 28, 1998, Ms. Jacobs executed an Election of Rights form denying the factual allegations of the Administrative Complaint and requesting a formal administrative hearing. Rule 4-231.160(2), Florida Administrative Code, lists certain aggravating and mitigating circumstances which should be considered in determining the appropriate penalty for a violation of Sections 626.611(14) or 626.621(8), Florida Statutes (1997): The number of years since the criminal proceeding: It has been 18 years since Ms. Jacobs was charged with Giving a Worthless Check in violation of Section 21-3707, Kansas Statutes. Age of licensee at the time the crime was committed: Ms. Jacobs was 36 when the offense was committed. Whether licensee served time in jail: The evidence failed to prove that Ms. Jacobs served time in jail. Whether or not licensee violated criminal probation: Ms. Jacobs did not violate probation. She was released from probation early. Whether or not licensee is still on criminal probation: The evidence failed to prove that Ms. Jacobs is still on probation. Whether or not licensee's actions or behavior resulted in substantial injury to the victim: Ms. Jacobs made restitution of the amount of the worthless check. The victim, therefore, did not suffer substantial injury. Whether or not restitution was, or is being timely, paid: Ms. Jacobs made restitution. Whether or not licensee's civil rights have been restored: Ms. Jacobs' civil rights were not impacted. Other related factors: The evidence failed to prove that any other factors apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Insurance finding that Amelia Kay Jacobs has violated the provisions of Sections 626.611(2), (7), and (14), and 626.621(1) and (8), Florida Statutes (1997), as alleged in the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Jacobs violated Sections 626.611(1) and (13), and 626.621(2), Florida Statutes (1997), be dismissed. It is further RECOMMENDED that the nonresident life and health agent license issued to Ms. Jacobs be suspended for a period of six months from the date of the Final Order. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance 645A Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Amelia Kay Jacobs Post Office Box 8073 Wichita, Kansas 67268-8073 Bill Nelson State Treasurer and Insurance Commission The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant hereto, respondent, Jack Michael Schwartz, held a life and health agent and ordinary combination life including health agent license issued by petitioner, Department of Insurance and Treasurer. Respondent presently resides at 2027 Northeast 172nd Street, North Miami Beach, Florida. On November 30, 1981 respondent submitted an application to petitioner for licensure as an ordinary life including disability agent. Question 15 on the application asked the following: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." The application was subsequently approved by petitioner in February, 1982 after respondent successfully completed a written examination. On June 18, 1985 respondent submitted an application to petitioner for licensure as a general lines agent. Question 11 on the application asked the following question: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." During the course of a routine background check of Schwartz, petitioner later learned that respondent had pled guilty to grand larceny by fraudulent representation on August 3, 1977 in circuit court in and for Broward County, Florida. The offense is a felony. Schwartz was thereafter placed on probation for five years under the direct supervision of the Department of Offender Rehabilitation. He was released from probation after two and one-half years. Schwartz acknowledged that he had pled guilty to a felony. However, after his probation was ended, Schwartz interpreted advice from his probation officer to mean he did not have to acknowledge on job or licensure applications that he had been convicted of a felony. He had no further explanation for his answers.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the license and eligibility for licensure of respondent be REVOKED. DONE and ORDERED this 15th day of September, 1986, 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 15th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1809 PETITIONER: Covered in finding of fact 4. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 3. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Wilbur W. Anderson, Esquire 413-B Larson Bldg. Tallahassee, Florida 32301 Jack Michael Schwartz 2027 N.E. 172nd Street North Miami Beach, Florida 33162
The Issue The issue is whether Respondent properly denied Petitioner's application for a license as a resident independent all-lines insurance adjuster.
Findings Of Fact In June 2002, Petitioner was an 18-year-old high student. Early in the morning of June 1, 2002, Petitioner and two friends entered three unoccupied vehicles and stole several items, including a couple of cell phones. On October 9, 2002, in the Circuit Court in and for Santa Rosa County, Florida, Case No. 02-518, Petitioner entered a guilty plea to two counts of Burglary of an Unoccupied Conveyance, each count being a third-degree felony, and Petit Theft, a second-degree misdemeanor. On October 9, 2002, in the Circuit Court in and for Santa Rosa County, Florida, Case No. 02-720, Petitioner entered a guilty plea to one count of Burglary of an Unoccupied Conveyance, a third-degree felony, and Petit Theft, a second- degree misdemeanor. On November 1, 2002, the circuit court Judge entered an Order Withholding Adjudication of Guilt and Placing Defendant on Probation in Circuit Court Case Nos. 02-518 and 02-720. Petitioner was placed on probation for 18 months for each felony and 12 months for each misdemeanor, to be served concurrently. On or about April 14, 2004, Petitioner successfully completed his probation. From May 7, 2004, until October 5, 2004, Petitioner attended the Pensacola School of Massage Therapy. Petitioner is now a licensed massage therapist. On February 14, 2006, Petitioner completed a class for professional training as an accredited claims adjuster. On February 15, 2006, Petitioner filed an application for a license as a resident independent all-lines insurance adjuster. One question on the application stated as follows: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or 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? Yes/No Petitioner answered the question in the negative based on erroneous information provided to him by someone in his probation office. An attorney subsequently advised Petitioner that he should have answered the question affirmatively. In a letter dated March 23, 2006, Petitioner advised Respondent that he had incorrectly answered the question about his criminal record. Petitioner expressed his regret that he failed to disclose his criminal record on the application. He also requested consideration of his professional accomplishments and clean record since 2002. According to Petitioner, he never intended to make a false or misleading statement when he signed his application, indicating that he did not have a criminal record. By letter dated April 14, 2006, Respondent requested a written explanation, outlining the events which led to each of the arrests/charges. In a letter dated June 15, 2006, Respondent denied Petitioner's application based on his felony convictions and his failure to disclose his criminal record. Despite his poor judgment as a young adult, which resulted in a criminal record, Petitioner has matured into a productive citizen. In addition to massage therapy, Petitioner has two other business interests. He works as an interior contractor and invests in real estate. Additionally, he is married and the father of a child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 11th day of October, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 11th day of October, 2006. COPIES FURNISHED: William G. Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Randall Lee Woodall, Sr. 6300 Saragon Lane Milton, Florida 32583 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza 11 Tallahassee, Florida 32399-0300
The Issue Whether the Respondent's license as a life insurance agent should be suspended or revoked based on the allegations set forth in the Department's Amended Administrative Complaint.
Findings Of Fact Respondent is currently licensed by the Department as a life insurance agent. On or about January 29, 1987, Respondent was charged with the felony, Misapplication of Funds, in the Circuit Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, Florida, Case No. 86-10485B. On or about February 12, 1987, Respondent was charged with the felony, Misapplication of Funds, in the Circuit Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, Florida, Case No. 87-1826B. On or about March 27, 1987, Respondent pled nolo contendre to two counts of Misapplication of Funds, a felony. The court withheld adjudication and placed Respondent on five years' probation for each count, to run concurrently; required Respondent to perform community service; and to pay restitution and court costs. On or about June 1, 1988, Respondent submitted an application to the Department for licensure as a health agent. Question 8 of the application asked, "Have you ever been charged with a felony?" Respondent answered "no" to that question. On or about September 20, 1988, Respondent submitted an application to the Department for licensure as a life insurance agent. Question 8 of the application asked, "Have you ever been charged with a felony?" Respondent answered "no" to that question. On the application dated June 1, 1988, and on the application dated September 20, 1988, Respondent signed and swore to the statement that read: I do solemnly swear that I will not directly or indirectly divide my commissions with any person other than a qualified life and/or health insurance agent, licensed by the State of Florida; that all answers to the foregoing questions are true and correct to the best of my knowledge and belief; that I will in good faith conduct myself in a manner befitting the insurance profession as set forth in the Code of Ethics; that I have not or will not withhold any information on myself that will in any way affect my qualifications as an insurance agent. (emphasis supplied) On or about August 15, 1991, the court revoked Respondent's probation because of a probation violation and Respondent was convicted of a felony, Misapplication of Funds, in Case Nos. 86-10485 and 87-1826. Respondent was sentenced to three and one-half years in prison followed by community control and probation. Respondent was incarcerated in both county jail and state prison for this felony conviction. Respondent's civil rights have not been restored. On or about May 21, 2000, Respondent completed and submitted an application for a health insurance agent license to the Department as his health agent license apparently had expired. Respondent answered "yes" to questions 3 and 4 on the application which inquired whether the applicant had ever been convicted, found guilty, or pled nolo contendre to a felony or to a crime punishable by imprisonment of one year or more. From November 1998 to March 2000, Respondent resided in Tucson, Arizona. Respondent did not notify the Department of his address change or his move from Florida to Arizona until May of 2000, when he submitted his health agent application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Insurance enter a final order finding that Respondent violated Sections 626.611, 626.621, and 626.551, Florida Statutes, and revoking Respondent's life insurance agent license. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. Hearings Hearings BARBARA J. STAROS Administrative Law Judge Division of Administrative 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 this 10th day of August, 2001.
Findings Of Fact At all times material hereto, Respondent is and has been eligible for licensure and licensed as a life insurance agent, a an ordinary life including health insurance agent, as a general lines insurance agent, and as a health insurance agent. On July 25, 1986, Respondent pled guilty and was found guilty in the United States District Court for the Southern District of Florida of conspiracy to possess with intent to distribute cocaine, a felony. He was sentenced to serve one year and one day in a penal institution and was fined $50. On September 10, 1986, Respondent pled guilty and was convicted in the United States District Court for the Southern District of Florida of conspiracy to import marijuana, a felony. He was given a five year sentence to run concurrent with his other sentence, with the requirement that six months be served in a jail-type institution, and with the execution of the remainder of the sentence of imprisonment being suspended. Additionally, Respondent was placed on probation for a period of five years to commence upon his release from confinement, was assessed a fine of $50, and was required to perform 250 hours of community service work during his first year of probation, 200 hours of community service work during his second year of probation, and 100 hours of community service work during his third year of probation. Other charges involving either the sale or possession of machine guns were dismissed. No underlying facts regarding the marijuana conviction were offered in evidence. Respondent and a companion negotiated with federal undercover agents for the sale of approximately 4700 automatic weapons (machine guns). Those discussions ultimately lead into negotiations for the sale of 15 kilos of cocaine. The final agreement was that the first transaction would involve 10 kilos of cocaine. On July 10, 1985, Respondent and two companions sold to the undercover agents 2 kilos of cocaine, Respondent explaining to the undercover agents that there would be a delay in him supplying the additional 8 kilos. The actual sale took place at Respondent's insurance office, as had many of the telephone contacts between Respondent and the federal agents. Respondent and his companions were arrested at Respondent's insurance office immediately following Respondent's sale of the 2 kilos of cocaine to the federal agents. Three firearms were seized from Respondent and his companions at the time of their arrests. No evidence was offered to show that Respondent has completed serving his probation or that his civil rights have been restored. Respondent has been licensed by Petitioner since 975. None of his insurance licenses have been previously revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the factual allegations contained within the Administrative Complaint filed herein, revoking Respondent's licenses, and revoking Respondent's eligibility for licensure as an insurance agent in this state. DONE and RECOMMENDED this 30th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 88-1374 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues under consideration herein. Petitioner's proposed findings of fact numbered 7 and 8 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Robert C. Byerts, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 Leslie L. Florez, Esquire Ocean Bank Building, Suite 604 780 N.W. LeJune Road Miami, Florida 33126 Don Dowdell, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue The issue in this proceeding is whether Petitioner, Daniel James Bradley's, application for licensure as a resident life including variable annuity and health insurance agent should be denied for the reasons stated in Respondent, Department of Financial Services', Notice of Denial dated April 26, 2004.
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to the authority granted in Chapter 626, Florida Statutes (2004). On January 3, 2004, Mr. Bradley filed an on-line application with the Department seeking licensure as a resident life including variable annuity and health insurance agent. The on-line application form included the following question: Have 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?. Mr. Bradley answered "No," which was a false answer. The Department conducted an internal investigation during the application process, and the criminal history check obtained by the Department revealed that in 1995 Mr. Bradley was charged with two counts of Obtaining Property for Worthless Check(s) (one check in an amount over $150 and one check in an amount less than $150). On May 31, 1995, in State of Florida v. Daniel J. Bradley, Case No. 94-2473F, in the Circuit Court in and for Sarasota County, Florida, Mr. Bradley appeared before Judge Robert B. Bennett and entered a plea of nolo contendere to the charge of Obtaining Property For a Worthless Check (over $150), which is a third degree felony in violation of Subsection 832.05(4)(a), Florida Statutes (1995). Judge Bennett withheld adjudication of guilt and imposed a fine and court cost in the amount of $250 that was paid by Mr. Bradley. Mr. Bradley testified that during the 1995 period, he was in the midst of a domestic dispute that was finalized in a dissolution of marriage, when he wrote two checks to Sears. He explained further that at the time the checks were written, sufficient funds were in the joint checking account at the bank, but his then-estranged wife withdrew all bank funds without his knowledge or consent resulting in the overdrafts. Explaining his "no" response to the criminal history question on his on-line licensure application form, Mr. Bradley asserted a lack of fully understanding the (intended) meaning of the term "punishable by imprisonment of one (1) year or more." Mr. Bradley testified that he "did not know, and had no reason to know, [or be concerned] that the worthless check charge to which he pled nolo contendere was punishable by imprisonment of one year or more," even though he knew the crime was a third- degree felony. Continuing, Mr. Bradley explained in detail his ongoing domestic entanglement then, as well as his financial obligations now. Mr. Bradley explained that he has undertaken the obligation to care for his parent(s) and his need for income to pay for his children's education. In effect, Mr. Bradley offered an "excusable neglect and a lack of knowledge" explanation for the "no" answer on his on-line licensure application form. Mr. Bradley earnestly insisted that it was not his "intent" to mislead, conceal, or lie about the criminal background question. He explained in detail that he "did not understand nor was he advised by his attorney, Susan Maulucci, or the Sarasota County Circuit Court that any offense that he had been accused or pled guilty to was punishable by a term of incarceration of one or more years." In conclusion, Mr. Bradley stated, "[I]f I had previous knowledge of such information I would never have answered incorrectly. If the question had addressed a felony charge punishable by one or more years, I would have certainly answered yes based on the assumption of a felony being the subject of the question not the period of punishment." It appears from his post-hearing submittal that he was under the impression that the term "felony" is missing from the question and that by the omission, he was somehow misled. The blame-shifting inference Mr. Bradley sought is that it was the omission by the Department to include the word "felony" in its application form that misled him. This suggestion is rejected. Mr. Bradley's explanation becomes even more suspect when one considers: his knowledge and experience as a military police officer; at the time he signed the plea document, it was clear that he was facing up to five years in prison for the crime(s) with which he was charged; when arrested on both misdemeanor and felony check charges, he spent the night in jail; and finally, he signed two bonds, one for the misdemeanor charge and a separate bond for the felony charge before he was released from jail. Mr. Bradley was individually and personally responsible for the accuracy of his answer. His misrepresentation of the truth by answering "no," if not intentional, supports the inference of a reckless or careless disregard as to the truth of the matter asserted. At the time he answered "no" on his application form, Mr. Bradley knew, without a doubt, that he had pled "no contest" to a felony worthless check charge in the Sarasota County Circuit Court in Florida. During his court appearance, he was identified and was personally informed by the presiding judge that he faced a felony charge, and he agreed to enter his plea of nolo contendere to that felony charge. On May 31, 1995, in open court, Mr. Bradley signed an "Acknowledgement and Waiver of Rights" form that contained in paragraph 1, the following statement: "I am pleading to the charge of worthless check (2 counts), and I understand the maximum penalty provided by law is five (5) years prison." (Emphasis added.) After the court accepted his plea, sentenced him, and imposed court costs, Mr. Bradley signed the court's acknowledgement reflecting the disposition of the proceeding. Only after completion of the foregone process was Mr. Bradley free to leave the courtroom.
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 dismissing the Petition herein filed by Petitioner, without prejudice, for Petitioner to reapply as provided in the Florida Administrative Code Rule 69B-211.042(4). DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 31st day of August, 2004.
