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 Whether Petitioner should be licensed as a title agent by the Department of Financial Services?
Findings Of Fact The Parties Ms. Shirley Auxais, the Petitioner, was born on November 20, 1971, in Brooklyn, New York. She is presently a resident of Coral Springs, Florida. Formerly married, Ms. Auxais' married name was Shirley A. Seraphin. The Department of Financial Services, the Respondent, was created by the Florida Legislature in the 2002 Session. Section 20.121, Florida Statutes. It is responsible for taking action on the license application submitted by Ms. Auxais and has been substituted as the Respondent in this proceeding for the Department of Insurance, the agency that issued the notice of denial. See B., 1Note to Section 120.121, Florida Statutes (2002), p. 400. Unemployment Compensation Fraud On February 17, 1998, the State Attorney of the Seventeenth Judicial Circuit filed an information against Ms. Auxais for unemployment compensation fraud, a felony. See Section 443.071(1), Florida Statutes. At the time of the filing, Ms. Auxais' name was Shirley A. Seraphin. The information charged the following: Shirley A. Seraphin from on or about the 13th day of August, A.D., 1995 up to and including the 16th day of September A.D., 1995, . . ., did . . . make a false statement or representation on her Pay Order Card(s), Florida Department of Labor Form UCB60 and/or UCB61, knowing said statement or representation to be false, or knowingly failed to disclose a material fact to obtain or increase benefits or other payments for her or any other person, in that the said Shirley A. Seraphin did knowingly state on her pay order cards that she was unemployed and not earning wages during the aforesaid period, when in fact and truth she was employed . . ., and earning wages which she willfully failed to report, and the said false statement was made or material fact not disclosed with the intent to obtain or increase benefits pursuant to the Florida Unemployment Compensation Law Respondent's Exhibit 3. Ms. Auxais, in the Circuit Court of the 17th Judicial Circuit, in and for Broward County (the "Court") entered a plea of "No Contest" to the charges. On June 18, 1998, Ms. Auxais upon the motion of the State, was ordered by the Court to pay restitution to the Division of Unemployment Compensation "in the total sum of Eight hundred twenty-five and 00/100 ($825)." Respondent's Exhibit 5. On June 18, 1998, an Order of Probation was rendered by the Court in Ms. Auxais' case pursuant to a plea of nolo contendere to Unemployment Compensation Fraud as reflected on the face of the order. Adjudication of guilt was withheld and Ms. Auxais was placed on "18 months mail in probation." Respondent's Exhibit 6. Slightly more than four months later, an order was entered by the Court that terminated Ms. Seraphin's probation. Application for Licensure as a Title Agent On May 13, 2002, Ms. Auxais submitted an application for a new license as a title agent to the Department of Insurance's Bureau of Agent and Agency Licensing. The license applied for, according to the application is "04-10-Resident Title Agent." Respondent's Exhibit 2, p. 7. The application poses a number of screening questions. Two are immediately adjacent to each other in the order that follows: In the past 12 months, have you been arrested, indicted, or had an information filed against you or been otherwise charged with a crime by any law enforcement authority anywhere in the United States or its possessions or any other country. Have you ever been charged, 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. Respondent's Exhibit 2, p. 8. The answer shown on the application to both questions is "N" which stands for "no." Six months later, on November 14, 2002, the Notice of Denial was issued. The factual basis for the denial consists of two interrelated facts. First, Ms. Auxais responded "no" to the question of whether she had ever pled no contest to a crime. Second, Ms. Auxais had pled no contest to Unemployment Compensation Fraud, a felony, in the Circuit Court in and for Broward County. Explanations In the interim between the submission of the application and the denial, Ms. Auxais, in a letter to a Regulatory Consultant at the Department of Insurance, offered "explanations . . . in regard to the cases filed against [her] . . .". Respondent's Exhibit 9, page 25. The first explanation concerns a criminal charge of "larceny by credit card." The charge is not related to the Department's basis for denial. Nonetheless, the explanation sheds light on Ms. Auxais' credibility. It has value to this case, moreover, because Ms. Auxais chose in her testimony at hearing to explain further her written explanation. She did so as she attempted, at the same time, to explain away the false answer on her application with regard to the nolo contendere plea for Unemployment Compensation Fraud, the second explanation in her letter in November of 2002 to the Department of Insurance. The explanation to the unrelated charge (the first explanation offered in the letter to the Department of Insurance) follows: Arrest Date: 3/13/95. Charge: Larceny Credit Card I went shopping with an ex-associate. I was not aware of the fact that she had obtained a credit card and attempted to use it unlawfully. When security began to question the nature of the card she fled the scene and I was held, arrested and charged for Larceny Credit Card. I explained the nature of the incident to the defense attorney appointed to me who suggested I plead no-contest. The courts ruled adjudication withheld. (Respondent's Exhibit 9). With regard to a question about whether her ex-associate had ever been charged with some type of theft crime for the incident, Ms. Auxais testified, "No she was never found. I can't find her to this day." (Tr. 44, 45). The second explanation relates to the felony of Unemployment Compensation Fraud: Arrest Date: 4/29/98 Charge: Fraud/Unemployment I worked for a group of physicians one of whom split from the group. At that time the other physicians felt threatened since I worked directly for the physician who decided to leave and I got fired. During this time I filed for unemployment. While I was on unemployment and receiving benefits the physician gave me a gift (so I thought) in the sum of $400.00. I was not aware that her accountant documented the $400.00 as employment. Some months later after she re-opened her new practice and I resumed working for her I among other employees received a letter from the unemployment office notifying us of unemployment fraud and they demanded repayment of the monies I received in the amount of $800.00. When I explained the situation to the physician she agreed to repay unemployment. I set up a payment plan with unemployment however the physician's accountant did not keep up with the payment which caused me to get arrested for unemployment fraud. (Id.) At hearing, in the midst of elaborating on these two explanations, Ms. Auxais offered an explanation for how it happened that her application had been submitted with the false answer of "no" to the screening question of whether she had ever pled "no contest" to a crime when, in fact, she had pled nolo contendere or no contest to crimes twice. Her explanation in this regard was: I personally did not fill out the application for the title insurance thing on line. My supervisor did it for me[.] [A]t the time that the application was filled out for me on line[,] I was in title insurance training in Tampa . . . But you just don't go around telling everybody that yes I was charged with unemployment compensation fraud after you thought everything was done. I guess the person who filled out the application for me was not aware that I was charged with a felony, so when the question was asked, had I ever been charged with a felony, they checked no. When it came back, I had already signed the last page of that prior to leaving, because you can actually print out the application. The application was sent out with that. (Tr. 30). Before transmitting it to the Department of Insurance, Ms. Auxais did not read the filled-out application. She testified she did not have the opportunity to so "[b]ecause [she] was in the midst of trying to go out of town and [she] was in the midst of trying to get [the] application out for a deadline . . .". (Tr. 64). There are at least two problems with this explanation. Both relate to the declaration that appears above the signature line in the application: Under penalties of perjury, I declare that I have read the foregoing application for licensure and that the facts stated in it are true. Respondent's Exhibit 2, p. 000011 of Respondent's Exhibits. If Ms. Auxais is to be believed, she had not, in fact, read the application with answers before signing it so that her attestation by way of her signature was false. The other problem occurs with her reading of the application after it had been signed, filled out, sent in and discovered by the Department of Insurance to be false. On this point, Ms. Auxais had yet another explanation. This explanation has as its basis Ms. Auxais' reading of the two screening questions quoted in paragraph 10, above. The first of the two has a time frame with regard to the question it asks about criminal arrests or charges. "In the past 12 months," is the predicate to the question. The second question, has no such time limitation. It asks whether the applicant has "ever" pled nolo contendere or no contest to a crime. When confronted by a Department of Insurance employee, "a Mr. Thomas" with the false answer to the second question, Ms. Auxais testified, "I . . . explained to him that even after going back and re-reading everything I would have still said no because the prior question asked within the past 12 months." (Tr. 60, 61). In other words, Ms. Auxais construed the second question to be limited by the time frame of the first so that contrary to its plain inquiry as to whether she had "ever" pled nolo contendere or no contest to a crime, it really asked whether she had so pled within the previous 12 months. Ms. Auxais is a college graduate. She plans to continue her education post-graduate by attending law school and regards employment as a licensed title insurance agent as a stepping stone to a career in law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying Petitioner's application for licensure as a title insurance agent. DONE AND ORDERED this 28th day of April, 2003, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 28th day of April, 2003. COPIES FURNISHED: Shirley Auxais 9022 West Atlantic Boulevard, No. 227 Coral Springs, Florida 33065 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 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 Whether Respondent's insurance license should be suspended or revoked because Respondent failed to disclose his criminal history on his insurance license application.
Findings Of Fact The Department has authority over licensing insurance agents pursuant to Chapter 626, Florida Statutes. At times pertinent Mr. Arleo was a resident of Pensacola, Florida. He holds a 220 General Lines (Property and Casualty) Agent license issued on February 27, 2001. The license he received was based on a license application he filed with the Florida Department of Insurance on January 30, 2001. Question three of the licensure and screening questions portion of the January 30, 2001, application inquired, "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 adjudication was withheld or a judgment of conviction was entered?" Respondent answered this question in the negative. Question four of the licensure and screening questions portion of the application inquired, "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 adjudication was withheld or a judgment of conviction was entered?" Respondent answered this question also in the negative. Following the aforementioned answers, Mr. Arleo signed his name beneath a statement that reads as follows: "Under penalty of perjury, I declare that all answers to the forgoing questions 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)." Notwithstanding his responses on the application, the evidence indicated that Mr. Arleo, on September 30, 1986, pleaded nolo contendere to, and was adjudicated guilty of, one count of theft of property worth $100 or more, but less than $20,000, and one count of burglary of a structure or conveyance, in the Circuit Court of Escambia County, Case No. 86-2796. Both of the listed offenses are felonies in the State of Florida. Mr. Arleo was adjudicated guilty of the offenses. However, on January 6, 1987, pursuant to an Order of Modification, adjudication was withheld.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department revoke Mr. Arleo's license. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 November, 2003. COPIES FURNISHED: Steve Arleo 704 North 80th Avenue Pensacola, Florida 32506 Dana M. Wiehle, Esquire Department of Financial Services 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 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
