The Issue The issue in this proceeding is whether Respondent should deny Petitioner's application for licensure as a general lines insurance agent on the grounds that Petitioner was convicted of a crime of moral turpitude that is punishable by more than one year of imprisonment and committed a material misstatement or misrepresentation within the meaning of Subsections 626.611(2) and (14), and 626.621(8), Florida Statutes (2003), and Florida Administrative Code Rules 69B-211.042(21)(s) and 69B-211.042(2).
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2004). On June 23, 2004, Petitioner electronically filed (on-line) a completed application for licensure as an agent authorized to sell resident life, variable annuity, and health insurance (the license). In the on-line application, Petitioner answered "no" to the following question: [i]n 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 . . . ? On May 19, 2004, Petitioner was arrested in New York for grand larceny, a third degree felony in that state. The allegations were that Petitioner received unemployment benefits from the State of New York after Petitioner found employment. The State of New York eventually convicted Petitioner on one count of grand larceny in the third degree. The sentence placed Petitioner on probation for five years and required Petitioner to pay restitution in the amount of $11,573.57. Petitioner is not scheduled to be released from probation until December 1, 2009. Petitioner's failure to disclose the arrest in New York is a material misstatement within the meaning of Subsection 626.611(2), Florida Statutes (2003). The arrest in New York occurred within approximately 35 days of the date that Petitioner submitted the application. A preponderance of the evidence does not support a finding that the failure to disclose the criminal history on the application was inadvertent. Petitioner knew, or should have known, the importance of accurate answers to questions on the license application. The final section of the on-line application, entitled "Applicant Affirmation Statement" contained the following language: Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his/her official duty shall be guilty of a misdemeanor of the second degree. * * * 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). The material misstatement or misrepresentation of the arrest history of Petitioner was an intentional, false statement. Petitioner knew that the answer he supplied in the application was not true. The failure to disclose the arrest was a reckless and careless act. The false statement evinces a "lack of fitness or trustworthiness to engage in the business of insurance" within the meaning of Subsection 626.611(7), Florida Statutes (2003). Petitioner has now been convicted of a felony that is a crime of moral turpitude. The preponderance of evidence does not support a finding that the crime is punishable by imprisonment for one year or less. Petitioner is on probation through December 1, 2009. After a final order denying the application, Petitioner is subject to the presumption and waiting periods prescribed in Florida Administrative Code Rule 69B-211.042(6).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the license application. DONE AND ENTERED this 19th day of July, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 19th day of July, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Peter J. Soto 14028 Island Bay Drive, Apartment 103 Orlando, Florida 32828 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
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
