The Issue The issue is whether Petitioner is entitled to an exemption from disqualification for employment with Respondent due to Petitioner's plea of guilty to three felony counts of credit card fraud, one felony count of theft, and one misdemeanor count of theft.
Findings Of Fact Petitioner was born on July 21, 1967. He was raised in Miami, where he earned his high school diploma in 1985. Petitioner's first employment after high school was as a child care worker. He was initially employed at the Elaine Gordon Treatment Center, for four years, and then the Southeast Florida State Hospital, for a year and a half. For the next three years, Petitioner worked as a senior patient clinical assistant at a facility operated by the University of Miami; in this job, Petitioner worked with adolescent sex offenders. His last job in the Miami area was as a supervisor at the Village for Behavioral Change, where Petitioner worked as a supervisor at a halfway house for delinquent youth; after a short time at this job, Petitioner decided to move to Tampa. Petitioner's first job in Tampa was as a counselor of adolescents at Tampa Crossroads, which provides alcohol and drug treatment. After a year at Tampa Crossroads, Petitioner became employed by the Pinellas Regional Juvenile Detention Center as a Detention Care Worker I. While working for Tampa Crossroads, Petitioner lived with his cousin and her brother. His cousin was employed by a company that distributed and collected credit cards. A few months after arriving in Tampa, Petitioner and his cousin developed a scheme to make fraudulent use of credit cards with which the cousin came into possession through her employment. For example, Petitioner and his cousin used the credit card of a recently deceased person, whose survivors had returned the card to the cousin's company. This seems to have been the full extent of the scheme; evidently, neither Petitioner nor his cousin gave much thought to escaping detection. Through the fraudulent use of credit cards supplied by his cousin, Petitioner bought furniture, car repairs and accessories, gasoline, meals, and home electronic equipment. Fraudulently charging as much as $17,000, Petitioner and his cousin were arrested after a couple of months. Petitioner expresses remorse for his actions. Without trying to avoid responsibility for his criminal behavior, Petitioner suggests that he was in a difficult period of his life because his first marriage had just failed and this was his first time away from Miami. But basically he admits he engaged in the fraud because he wanted things. In September 1995, a law enforcement officer employed by the Tampa Police Department filed an affidavit charging Petitioner as follows: two felony counts of "forgery," in violation of Section 831.01, Florida Statutes; two felony counts of "fraudulent use of credit card," in violation of Section 817.61(1), Florida Statutes; one felony count of "possession of two or more/dealing in credit cards," in violation of Section 817.60(6B)[sic], Florida Statutes; one felony count of "grand theft," in violation of Section 812.014, Florida Statutes; and one misdemeanor count of "petit theft," in violation of Section 812.014, Florida Statutes. Following his arrest on October 3, 1995, Petitioner pleaded guilty to two felony counts of "fraudulent use of a credit card," one felony count of "dealing credit cards of another," one felony count of "grand theft third degree," and one misdemeanor count of "petit theft." By Order of Probation entered February 29, 1996, the court withheld adjudication of guilt and placed Petitioner on probation for eight years: five years for the first three counts and three years, to run consecutively, for the fourth count. (The probation for the fifth count ran concurrently with the probation for the other counts.) The Order of Probation also ordered Petitioner to pay restitution in the total amount of $17,896.32 and court costs of $200, as well as perform 200 hours of community service. Evidently by separate order, the court required Petitioner to pay the restitution monthly in payments of $200. Thus, assuming no interest, Petitioner must pay restitution over 90 months, which means that he would complete restitution prior to the termination of probation, which is due to terminate February 28, 2004. Petitioner earns $25,000 annually from a janitorial service that he operates. Out of takehome pay of $661 every two weeks, Petitioner pays monthly child support of $260, monthly rent of $400, and monthly debt payments of $100. Petitioner owns no assets, except for a unliened 1996 Kia Sophia, which he bought, in damaged condition, for $1000. Petitioner has paid $162.50 every two weeks, so as to shorten the period required to pay the restitution. He also returned to the stores the stolen merchandise still in his possession. On October 2, 1996, Petitioner completed a State of Florida employment application and submitted it to Respondent for possible employment at Respondent's Pinellas Regional Juvenile Detention Center (JDC). In response to a written question asking if the applicant has ever pleaded no contest or guilty to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and explained: "I used a credit card belonging to another" in Tampa. In response to a written question asking if the applicant has ever had adjudication withheld to a crime that is a felony or first-degree misdemeanor, Petitioner checked the box marked yes and noted: "same as above." Respondent conducted the standard criminal screenings of job applicants, and nothing was uncovered, perhaps due to the fact that the offenses were relatively recent. Respondent offered Petitioner an Other Personnel Services (OPS) position, essentially as a detention care worker responsible for maintaining order in the JDC. Petitioner began working in November 1996. When a career service Detention Care Worker I position became available, Petitioner decided to seek the position, which imposed the same requirements as the job he was performing, but offered better benefits. Petitioner completed another State of Florida employment application, dated November 2, 1997, and submitted it to Respondent. He answered the above-cited questions in the identical way as he did 13 months earlier. This time, Petitioner also submitted a signed affidavit of good moral character. He indicated that he was not guilty of any of 30 cited statutory offenses, including "812 relating to theft, robbery and related crimes, if the offense was a felony." Performing another criminal screening, Respondent received information concerning the above-described arrests and probation. By letter dated February 18, 1999, Respondent informed Petitioner that he was no longer eligible for employment in a position of special trust or responsibility, such as his current position with Respondent. He was therefore to be terminated from his position immediately. Petitioner sought an exemption from disqualification. A committee of Respondent's employees at the JDC conducted a hearing and entered a recommendation on April 26, 1999, that Respondent grant an exemption. In part, the recommendation reasoned: [Petitioner] has been honest and forthright about his record since his first point of contact with our agency. . . . His record with us is unblemished and is highly recommended by his peers and his supervisors. [Respondent] has complied with his probation order up to this point. He has completed 200 service hours and has not missed a restitution payment. He is working two jobs in order to pay back the restitution sooner. . . . The delay between the adverse criminal screening and the letter terminating Petitioner's employment is partly attributed to a series of disqualification waivers that Petitioner received from Respondent's JDC employees. These waivers appear to have been for nonwaivable offenses and, except for their small value as evidence of Petitioner's value as an employee of Respondent at the JDC, they are not relevant and, in particular, do not establish an exemption by estoppel. In any event, Respondent's Inspector General overturned the recommendation and denied the request for an exemption. Any delay in the issuance of his ruling was immaterial and, again, does not provide the basis for some form of exemption by estoppel or default. However, the fact remains that Petitioner was a model employee at the JDC. He worked effectively with the juveniles incarcerated at the JDC and with his coworkers and supervisors. He was conscientious, dependable, loyal, competent, and professional in all of his dealings and even voluntarily assisted a coworker with her troubled son. When dealing with the juveniles, he always insisted upon compliance with the rules, but, whenever possible, exhibited kind-heartedness. While working at the JDC, Petitioner earned the trust and respect of all of those around him and never displayed bad moral character. The evidence provided by Petitioner's coworkers, supervisors, and friends also tend to establish his rehabilitation. Petitioner's probation officer testified that Petitioner is very compliant and cooperative. At the time of the hearing, he had completed all of his community service except for 1.5 hours, which may have arisen due to an accounting error. Petitioner has maintained fulltime employment and passed all drug screens, as required by the conditions of his probation. He has renewed his religious practices and is now active at his church. At the time of the hearing, Petitioner still owed $13,005.15 in restitution. Except for the fact that restitution is not complete, the probation officer testified that she would recommend termination of probation; she explained that she cannot recommend termination of probation as long as any conditions remain outstanding. Respondent's primary contention in support of denying the request for probation is that Petitioner has not completed his probation. Respondent argues that the completion of probation is a necessary precondition to rehabilitation. In determining whether a person seeking an exemption has completed rehabilitation, it is important to assess the extent of his compliance with the conditions of his probation. Obviously, the successful completion of probation is evidence of rehabilitation, and, if supported by the other evidence, the successful completion of probation may be an important factor in determining that a person has rehabilitated himself. On the other hand, the failure to complete probation does not necessarily preclude a determination of rehabilitation. All of the circumstances must be considered in determining whether a person has rehabilitated himself. The failing in predicating the rehabilitation determination on the successful completion of probation is revealed in comparing Petitioner's case with a hypothetical case of another detention care worker, who, but for three facts, is identically situated with Petitioner. The first distinguishing fact is that, after reducing the restitution to $13,000, the hypothetical detention care worker wins the lottery or receives a large inheritance. The second distinguishing fact is that, after receiving the proceeds, the hypothetical detention care worker pays off the remainder of his restitution. The third distinguishing fact is that his probation is then terminated. In the absent of statutory or regulatory authority, the rehabilitation determination cannot be governed by the continuation of probation, when probation likely has not been terminated due merely to the ongoing liability for restitution, without introducing an arbitrary element into the rehabilitation determination. In the present case, Petitioner is working two jobs and is shortening the period of repayment as much as he can; this is exactly what would be expected of the hypothetical detention care worker who enjoys a windfall, and this is all that we can expect, given other evidence of rehabilitation, of Petitioner. More generally, the record does not offer much detail as to the identity of the victims or the extent of the injury caused, except that it was obviously about $17,000. The circumstances surrounding the crimes are not particularly telling. Charging a camcorder and auto accessories does not conjure images of Jean Valjean stealing a loaf of bread to eat. On the other hand, five years have passed since the crimes, and, during that time, Petitioner has conducted himself in an exemplary fashion. Unusual in exemption cases is the fact that Petitioner has had an opportunity to demonstrate, following disqualifying crimes, his good moral character while performing the work for which he now seeks the exemption. Candidly disclosing his crimes, Petitioner, due to the failure of Respondent's personnel to follow up on the disclosures in the application and the failure of the criminal screening process, was able to obtain employment as a detention care worker. Later, seeking to gain the benefits of a career service position, Petitioner again disclosed his criminal background. Although it is true that he should have disclosed the grand theft on the affidavit filed at this time, his failure to do so is not indicative of an attempt to conceal. He had, again, revealed the credit card crimes on the application that he was filing for this career service position, as he had revealed the credit card crimes on his first application. It is illogical that he would try to conceal one count of grand theft while disclosing three counts of credit card fraud. More likely, as revealed by the two applications, he had reduced in his mind the various crimes to their most salient characteristic: credit card theft. His failure to detect the specific language in the affidavit requiring disclosure of the felony theft offense is reflective of Petitioner's linguistic skill, not his honesty. Petitioner has proved by clear and convincing evidence that he has rehabilitated himself and is of good moral character to justify the issuance of the exemption.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this 25th day of August, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 25th day of August, 2000. COPIES FURNISHED: William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Manny Anon, Jr., Deputy General Counsel AFSCME Florida Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Lynne T. Winston, Attorney Chief of Investigations Office of Inspector General 2737 Centerview Drive, Suite 300 Tallahassee, Florida 32399-3100
The Issue The issues to be resolved in these proceedings concern whether the Petitioner is entitled to licensure as a non-resident life and health insurance agent in Florida in consideration of a prior history involving a criminal charge concerning a felony of moral turpitude, as well as his alleged failure to disclose prior disciplinary actions against his licenses by Florida and Wisconsin, which arose out of the same felony charge.
Findings Of Fact The Petitioner is a licensed insurance agent, who has been practicing as an insurance agent for 25 years in Minnesota, Florida and Wisconsin. His Florida licensure was suspended for a period of two years by Final Order of the Department entered on November 25, 1985. That regulatory situation is described in more detail below. The Petitioner has now applied for licensure in Florida as a non- resident life and health insurance agent. He primarily practices insurance in the State of Minnesota, his native state. He did, however, practice in Florida from approximately 1980 to 1985 but relocated to Minnesota after his prior Florida disciplinary experience. The Respondent is an agency of the State of Florida charged with enforcing the licensure standards for insurance. Those standards are embodied in Chapter 626, Florida Statutes. The Respondent is charged with insuring that licensed applicants and licensed agents comply with those standards and with conducting enforcement actions and imposing penalties up through and including licensure revocation or denial where agents or applicants fail to comply with Florida's insurance law. Upon the convening of the prior disciplinary action against the Petitioner in 1984, the Petitioner was licensed as an ordinary life and disability insurance agent, doing business as Steven Miller Insurance and Associates in Daytona Beach, Florida. On June 2, 1983, the Petitioner was charged, by criminal information in Case No. 83-2219-CC, with two felony counts, Count One being presentation of a fraudulent insurance claim in violation of Section 817.234, Florida Statutes, and Count Two being a charge of grand theft of the second degree, in violation of Section 812.014, Florida Statutes. On January 5, 1984, the Petitioner entered a plea of nolo contendere to the felony offense of grand theft, second-degree felony. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit in and for Volusia County, Florida (Circuit Court) accepted that plea and placed the Petitioner on three years of supervised probation, but withheld adjudication of guilt and imposition of sentence. On July 18, 1985, the Petitioner was discharged early from his probation, after successfully completing 18 months of the original three-year probationary period. In June of 1982, the Petitioner's wife's sister and her husband came to Florida to visit the Petitioner and his wife for a period of time. The Petitioner's brother-in-law and wife were having severe financial problems. The Petitioner owned a 24-foot boat at the time, which he kept stored in a vacant lot, behind a chain-link fence, in the vicinity of his home. Several days after his brother-in-law and sister-in-law returned to their home in Minnesota, the Petitioner noticed that his boat was missing. On June 29, 1982, he reported the boat as being stolen to the Daytona Beach Police Department. Several months after reporting the theft, he filed an insurance claim seeking reimbursement on his insurance policy for the theft of the boat. Approximately one year later, the boat was found in the possession of his brother-in-law, who had returned to his home in Minnesota shortly before the boat was reported stolen. In order to save himself from prosecution, the brother-in-law claimed that the boat had been given to him by the Petitioner and that he had not stolen it. Consequently, the Petitioner was charged with one count of insurance fraud, a felony, and the other charge referenced above involving second-degree grand theft, also a felony. According to the Petitioner, he presented adequate proof that he had not stolen the boat and the insurance fraud charges were immediately dropped. He was then informed, by his counsel in the criminal matter, with the agreement of the state attorney and the court, that, in effect, if he pled nolo contendere to the grand theft charge, the criminal matter could be put behind him with a minimum of anguish and expense. In return for such a pleading, he was assured that it would effectively be the same as pleading not guilty, that his insurance license would not be affected by the matter or the result, and that by so pleading, he could avoid the straining of his marriage because of the family relationship involved in the underlying facts. Consequently, the Petitioner pled nolo contendere to the second criminal charge involving second-degree grand theft. Adjudication and sentencing were withheld, and he was placed on three years of supervised probation, which he successfully completed in 18 months. Thereafter, on or about October 25, 1984, an Administrative Complaint was filed by the Department against the Petitioner in Case No. 84-L-360LS (DOAH Case No. 84-4124), which ultimately went to hearing before a Hearing Officer of the Division of Administrative Hearings. The issue in that proceeding concerned whether disciplinary measures provided for in Sections 626.611 and 626.621, Florida Statutes, should be imposed for the plea of nolo contendere to a felony offense involving moral turpitude. The Hearing Officer, after finding the facts as delineated above, entered a Recommended Order finding that the offense charged did involve moral turpitude and that the petitioner in that case had met its burden of proof of showing a violation which could stand independently of whether or not there had been an adjudication of guilt. Accordingly, the Hearing Officer recommended that a Final Order be entered suspending the Petitioner's licensure for a period of two years and, by Final Order entered on November 25, 1985, the Department adopted the Recommended Order as the agency's Final Order and imposed a suspension of licensure for a period of two years from that date. Thus, the suspension terminated on or about November 25, 1987. On his application for licensure, dated November 29, 1994, in response to the question concerning whether his application or licensure had ever been suspended, etc., the Petitioner answered "yes". The question requires no explanation of the circumstances on the application form. The Petitioner, however, gratuitously, drew an arrow to the margin of the form and indicated that he had been suspended in Minnesota in 1987 briefly, for two weeks, for accidentally "overlapping" a medicare supplement policy too long. He wrote no such explanation concerning his Florida suspension occurring in 1985. The Petitioner, however, established that he knew, of course, that the Department already had knowledge of that suspension, it having entered a Final Order, still in its records, suspending him for two years, as referenced in the above Findings of Fact. Moreover, the Petitioner was under the impression that since that suspension arose out of the criminal activity with which he had been charged and which record had been sealed by order of the Circuit Court, he need not respond in the affirmative to that question concerning the Florida suspension. That is the same reason he answered "no" to the question concerning any plea or conviction involving a crime of moral turpitude. This belief was based upon the fact that the sealing order of the Circuit Court, pursuant to Section 943.059, Florida Statutes, allowed him to deny that those criminal charges, and the probation imposed, had ever occurred to any employing or licensing entity not specifically enumerated in that statute. The Department is not specifically enumerated in that statute as an agency to which the protection of the sealed record for the Petitioner does not apply. Thus, the Petitioner had no intent to defraud or misrepresent, in a material way, his entitlement to licensure by his answers on the application concerning the earlier Florida prosecution. In any event, in the free-form stage of this matter, before the first denial letter and the amended denial letter were filed and served on the Petitioner, the matter had been discussed with agency personnel and thus disclosed. On or about September 11, 1987, the Petitioner's license in the State of Minnesota was suspended for four weeks for purported improper "overlapping" and duplicating of medicare supplement coverages, in violation of Minnesota statutes. The Petitioner established that that was an inadvertent violation. It occurred due to an administrative and record-keeping error in his office. He acted immediately to correct the error, and the licensure authorities in Minnesota were satisfied with his efforts to correct the error. No member of the public suffered any pecuniary or other loss as a result, nor did the Petitioner gain any pecuniary or other benefit by that mistake. It was simply a clerical or administrative error due to inadvertent mistake. On or about September 28, 1989, the Petitioner was disciplined by the State of Wisconsin, Department of Insurance, and ordered to pay a fine based upon a settlement negotiation. This occurred because of his failure to disclose on his application for licensure as an "intermediary" in Wisconsin his previous Florida disciplinary action concerning the criminal matter. Indeed, the Petitioner did not disclose that to the State of Wisconsin. The reason he did not, as he established by unrefuted testimony, was that by the time he applied for licensure in Wisconsin, the circuit court's order sealing the record concerning the criminal matter had been entered. By his lay understanding of the law concerning sealing of his record, he was allowed to decline to disclose anything concerning that criminal matter or any matter based upon it. In his mind, this included no longer being under a requirement to disclose the Florida Department of Insurance disciplinary action which arose out of that criminal matter. His belief in this regard was further buttressed by the fact that the Department itself, upon his request, issued a "letter of clearance" for him to supply to the Wisconsin Department of Insurance. This document depicted that he was in good standing in terms of his licensure in the State of Florida (this was after the lapse of his two-year suspension period) and that there was no impediment, as far as Florida was concerned, to his licensure in the other jurisdiction. Under these circumstance, the Petitioner did not believe that he had a legal obligation to disclose to Wisconsin the matters concerning the Florida suspension. Upon learning of it, the State of Wisconsin, Department of Insurance, initiated a disciplinary action. Upon negotiation and stipulation, he was required to pay a $500.00 fine. When the Petitioner was asked about any suspensions of his licensure, on the application form at issue, and since the form and the question do not provide for any written explanation, he did not disclose the Wisconsin action leading to his fine. This is because, in the first place, it was not a suspension. Moreover, he still believed that, due to the circuit court's order sealing the record, since the Wisconsin action grew out of the Florida disciplinary and criminal matter, it was all related and he was not required to disclose it. Further, he did not believe that he had actually had a disciplinary action imposed in the State of Wisconsin. This is because the $500.00 fine, which he agreed to pay, was based upon a "stipulation and order." This document clearly recites upon its face (Petitioner's Exhibit 3) that the respondent (the Petitioner herein) denied the allegation and merely wanted to resolve the matter to avoid further litigation and expense. It states that the stipulation and order did not constitute the adjudication of any issue of fact or law and would not be admissible as such in any proceeding. Thus, because no determination of any guilt had been made regarding him by the State of Wisconsin and because the $500.00 fine he paid was merely the result of a settlement negotiation to prevent litigation, the Petitioner did not deem that he had been subjected to actual disciplinary action and certainly not suspension by the State of Wisconsin. Thus, it has not been established that he failed to reveal the Wisconsin matter on his application through any intent to misrepresent or defraud the Department in Florida, in a material way, in an attempt to gain licensure. This is particularly deemed to be the case because if he had been merely seeking to conceal what he actually believed was a disciplinary action occurring in Wisconsin, it would be illogical to assume that he would disclose the Minnesota action. He freely and voluntarily disclosed the Minnesota action, however, which he knew to be a brief suspension of his license. The Department, by the amended denial letter, is also seeking to deny licensure based upon his having pled nolo contendere to the criminal charge, as referenced above. This is so even though the Department, when it could have revoked his license for that same ground in 1985, chose the two-year suspension as an appropriate penalty for that criminal infraction, which resulted from a negotiated plea of convenience. In 1985, when the Final Order was entered, only two and one-half to three years had elapsed after the infraction is supposed to have occurred. The Department, however, without any significant time for rehabilitation from the effects on his license-worthiness from the purported criminal infraction, implicitly took the position that revocation of licensure was not appropriate and only a two-year impairment to licensure entitlement was warranted. Approximately a decade has now elapsed since the prior Florida discipline and approximately 12 to 13 years since the basis of that discipline (the criminal matter). The Petitioner has substantially shown his rehabilitation from the effects of that incident. The criminal matter itself did not involve any proof of actual guilt of immoral conduct but, rather, was a negotiated plea for the convenience of the Petitioner and the avoidance of the expense and anguish of trial. Moreover, the Petitioner has been a licensed agent in Minnesota, Florida, and Wisconsin for some 25 years and has never had any disciplinary altercation other than those mentioned in the evidence and this Recommended Order which arose out of that negotiated plea. The Minnesota and Wisconsin infractions were not significant in terms of reflecting adversely on the Petitioner's character, traits of honesty and trustworthiness, nor his competence, and qualifications to practice as an insurance agent. The Florida infraction in 1985 on its face is serious; however, the actual underlying facts do not reveal that the Petitioner was actually guilty of second-degree grand theft because of the findings concerning the imposition of probation through a "plea of convenience", upon advice of counsel and the court. The unrefuted testimony is that the Petitioner practiced insurance in a manner in which the public has never been harmed. No policyholder or insurer has suffered loss by any act or omission of the Petitioner, nor has the Petitioner benefited pecuniarily from any wrongful conduct. The above facts and circumstances, taken in their totality, show that the public in the State of Florida will not be harmed by licensure of the Petitioner. The total circumstances represented by the above Findings of Fact show that any adverse implication on his qualifications or worthiness for licensure has long since been rehabilitated by the passage of time and by the appropriate and proper conduct of his business as an insurance agent in the states where he has been licensed. In 25 years, he has continuously handled money and financial affairs of insurers and insureds with honesty and integrity. It has not been demonstrated that the Petitioner lacks fitness or trustworthiness to engage in the practice of insurance or that he is incompetent to engage therein. It has not been demonstrated that he made a misrepresentation or other fraudulent act in the obtaining of a license or appointment or in the initiation of an attempt to obtain a license or appointment.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered granting the Petitioner's application for licensure as a non-resident health and life agent. DONE AND ENTERED this 6th day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 6th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3363 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5. Rejected, as not entirely in accord with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 6-14. Accepted. 15. Accepted, but not as to its entire purported legal import. Respondent's Proposed Findings of Fact 1-5. Accepted. 6. Accepted, but not for its entire purported material import. 7-9. Accepted, but not in themselves materially dispositive. COPIES FURNISHED: Thomas F. Woods, Esquire 1709-D Mahan Drive Tallahassee, Florida 32308 Allen R. Moayad, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 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 Respondent, George Thomas Darby, at all times relevant to these proceedings, was licensed as a professional bail bondsman and limited surety agent. The Respondent was previously licensed as an ordinary-combination life, including disability agent, but such license expired on March 30, 1981. On January 7, 1982, a grand jury indictment was issued in the United States District Court for the Northern District of Florida, Panama City Criminal Division, against the Respondent, George Thomas Darby. The indictment specifically charged that the Respondent: Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other stated individuals to possess with the intent to distribute more than 1,000 pounds of the Schedule I control substance marijuana, in violation of Sections 841 and 846 of Title 21 of the United States Code. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other specified persons to import into the United States the Schedule I control substance marijuana in violation of Sections 952 and 963 of Title 21 of the United States Code. Did knowingly and intentionally import into the United States a Schedule I control substance in violation of Section 952 of Title 21 and Section 2 of Title 18 of the United States Code. Did knowingly and intentionally possess with the intent to distribute the Schedule I control substance marijuana in violation of Section 841 of Title 21 and Section 2 of Title 18 of the United States Code. On July 14, 1982, George Thomas Darby was convicted in the United States District Court for the Northern District of Florida, Panama City Criminal Division, as follows: Defendant has been convicted as charged of the offense of from on or about January, 1975, until the date of the indictment, in the Northern' District of Florida and elsewhere, knowingly combining, conspiring, and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952 and 963, as charged in Count 111(3) of the indictment. Pursuant to the above conviction, the Respondent, George Thomas Darby, was sentenced to a term of five years imprisonment and fined $15,000. The Respondent, by answer, admitted and further, at the formal hearing by stipulation, accepted as true the following facts: That you, George Thomas Darby, on or about July 14, 1982, in the United States District Court of the Northern District of Florida, in Case No. MCR 82-00203-07, were found guilty of knowingly combining, conspiring and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952, and 953, as charged in Count 111(3) of a previous grand jury indictment, Criminal Case No. MCR82-00203. The violation of either of the aforementioned titles is a felony as defined by Title 18, U.S.C. Section I(1). The Respondent has been licensed as a professional bail bondsman since October, 1976. His primary business as a bail bondsman has been in Jackson County, Florida. The Respondent has had no prior criminal convictions and no complaints or other disciplinary actions by the Department of Insurance against any license held by him from that Department. The Respondent has voluntarily ceased writing bail bonds since February of 1982, to the date of the hearing. Prior to the above-referenced conviction, the Respondent enjoyed a reputation as an honest, hardworking, and law-abiding citizen in the Jackson County area. On January 31, 1983, Clyde M. Taylor, Jr., Esquire, counsel for the Respondent in the above-referenced criminal action, filed an appellate brief in the United States Court of Appeal for the Eleventh Circuit on behalf of George Thomas Darby, seeking to reverse the July 14, 1982, district court conviction. At the time of the formal hearing, this appeal was pending.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent, George Thomas Darby. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance Suite 413-B, Larson Building Tallahassee, Florida 32301 Clyde M. Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 MARVIN E. CHAVIS 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 28th day of July, 1983.
The Issue The issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: 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? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: 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 denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 February, 2005.
The Issue The issue to be determined is whether Petitioner has demonstrated eligibility for licensure as a resident life, including variable annuity, insurance agent.
Findings Of Fact Based upon the observation and the demeanor of the witnesses while testifying, documentary material received in evidence, stipulation of the parties, and evidentiary rulings during the hearings, and the entire record complied herein, the following relevant, material, and substantial facts are determined: The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2004). On October 4, 2004, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity, insurance agent. The online application form completed by Petitioner for the licensure at issue included the following question: 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? Petitioner answered this question in the negative. On November 9, 2004, the Department sent a letter to Petitioner, requesting she provide, among other things, certified copies of court documents relating to her 1999 arrest in Hillsborough County, Florida, for child abuse. Petitioner found the above question to be confusing and in an attempt to be completely forthcoming, she sent the Department copies of two documents: (1) an August 9, 2004, letter to Petitioner from the Department of Corrections and (2) Petitioner's two-page printout regarding the Probation/Parole record. The Department received the referenced documents on November 23, 2004. Petitioner's criminal history established a November 18, 1999, arrest on two felony counts of aggravated child abuse. Petitioner had used an electric cord to spank her daughter as punishment for stealing and had left marks on the child as a result. The two-count information was filed in the Thirteenth Judicial Circuit, Hillsborough County Circuit Court, Case No. 99-20373, on January 27, 2000. On December 13, 2000, Petitioner entered a plea of guilty to one felony count of child abuse, as set forth in Count II of the information, and the second count pending against Petitioner was nolle prossed. The disposition of the case was that adjudication of guilt be withheld on the one felony count of child abuse and that Petitioner be placed on four years probation and required, inter alia, to complete parenting and anger management classes, which she did. Circumstances that resulted in Petitioner's plea involved her method of disciplining her daughter. Petitioner was born and grew up in Haiti and her method of punishment, spanking her daughter with electric cord, is culturally accepted. Spanking with electric cord leaves bruises and marks on the child spanked. Petitioner's testimony indicates that she learned through her anger management classes that the Haitian method of punishment is not considered appropriate, and other nonphysical methods would bring about desired results. Petitioner now has four children. She is employed by Lakeshore Villas, a nursing home where she is responsible for caring for elderly persons, as a full-time Certified Nursing Assistant (CNA). To acquire her CNA license from the Department of Health (DOH), Petitioner testified that she reported her criminal history to the DOH, and no disciplinary action was taken by the agency because of her plea. Even though the answer to the criminal history question on her application for licensure was not correct, circumstances evident from evidence of record reveals that Petitioner, in fact, disclosed her criminal history to the Department prior to the Department's specific inquiry about that history. She testified that her "no" answer on the application was because she spent only two days in jail. Subsequently realizing the possibility of a misunderstanding, Petitioner, before a request by the Department, mailed documents to the Department that disclosed her criminal history. Viewed in the totality of circumstances, Petitioner's voluntary disclosure of her criminal history negates any reasonable inference or conclusion that Petitioner made an intentional "[m]aterial misstatement, misrepresentation, or fraud in . . . [her] attempt to obtain the licensure or appointment," Subsection 626.611(2), Florida Statutes (2004). Likewise, the simple fact that Petitioner (through misunderstanding) incorrectly answered the application question does not show that Petitioner's conduct demonstrated a "lack of fitness or trustworthiness to engage in the business of insurance." Notwithstanding the foregone findings, there is no evidence that Petitioner was under the age of 21 years when the crime was committed. There is no written documentation from the prosecuting attorney evidencing the belief that Petitioner posed no significant threat to public welfare if licensed.
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 finding that Petitioner did not attempt to obtain the license at issue through material misstatement, misrepresentation or fraud, but that Petitioner has not met the 15-year mandatory waiting period applicable to her criminal history and is, therefore, ineligible for licensure pursuant to Subsection 626.611(14), Florida Statutes (2004), and denying Petitioner's request for relief. DONE AND ENTERED this 9th day of August, 2005, 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 9th day of August, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alia Baptiste Sossous 10310 Birdwatch Drive Tampa, Florida 33647 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 Level 11 Tallahassee, Florida 32399-0307
The Issue The issue for consideration in this case is whether Respondent's license as a legal expense agent in Florida should be disciplined in some manner as a result of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Department of Insurance (Department) was the state agency in Florida responsible for the licensing of insurance agents and the regulation of the insurance profession in this state. Respondent either was licensed or had applied for licensure as a legal expense agent in Florida. On or about May 29, 2000, Respondent filed an application for licensure as a legal expense agent with the Department. In Section 9 of the application form, that section in which the Department asks the applicant certain questions about his or her background, at question 3, the form reads: 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 judgement of conviction was entered? Respondent checked the "No" block in answer to that question. In that same section of the application form, the Department also asks the question: 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 judgement of conviction was entered? Respondent checked the "No" block in answer to that question as well. Notwithstanding her answers to the questions cited, the evidence of record indicates that on May 26, 1998, Respondent pleaded nolo contendere to a charge of Obtaining Property by Worthless Check, a felony, in Case No. 96-01386, in the Circuit Court for the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. Adjudication of guilt was withheld by the court. In reliance, at least in part, on Respondent's denials on her application for licensure that she had pleaded guilty or pleaded nolo contendere to a felony charge, on July 7, 2000, the Department issued Respondent a license as a legal expense agent. Respondent admits to having plead nolo contendere to the worthless check felony charge, but because adjudication of guilt was withheld, she believed the action would not be on her record. She also admits to having recognized the nature of the questions she answered in the negative but indicated she did so because she believed the case was closed and her record would not show the court action. At the time she applied for licensure, Respondent was aware a background investigation would be done and contends she was not trying to do anything to obstruct it. She did not check with the court to determine the status of her case before filling out the application. She had an attorney for the criminal action and took his word that the matter was closed and would not appear on her record. Since being contacted by the Department's investigator, she has been completely forthright in her dealings with it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order finding Respondent guilty of Misrepresentation of a Material Matter on her application for licensure, and revoking her license as a legal expense agent. DONE AND ENTERED this 29th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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 29th day of January, 2001. COPIES FURNISHED: Anoush A. Arakalian, Esquire Department of Insurance Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Dirk R. Weed, Esquire 4504 North Armenia Avenue Tampa, Florida 33603 The Honorable Bill Nelson Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended action to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Parties and Background Petitioner is a 41-year-old male residing in Gainesville, Florida. For the last four months Petitioner has been employed by Plane Techs, where he has been contracted out to Haeco Aviation for repair of interior aviation mechanics. Petitioner wishes to become employed by Successful Living II, an Agency provider which operates residential treatment group homes serving people with both moderate and severe behavioral disabilities. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. Disqualifying Offenses Petitioner’s record contains two felony offenses which automatically disqualify him from employment in any position of special trust with children or vulnerable adults. The first offense is the armed robbery of an Arby’s restaurant in Lake City, Florida, in May 1998. Petitioner conspired with his two male cousins, then employees of the subject Arby’s, to rob the restaurant. A first attempt was scrapped due to the number of customers in the restaurant, but Petitioner returned and finished the job just prior to closing. Petitioner was tried and convicted by a jury of both armed robbery and burglary of an occupied structure. He was sentenced to 32 months in prison, followed by eight months of probation. In the second offense the same month as the first, Petitioner and the same two cousins robbed a man in the parking lot of a hotel in Gainesville. The trio held up the man at gunpoint and deprived him of a duffle bag containing a computer and other valuables, as well as his wallet containing cash and credit cards. Petitioner was tried and convicted by a jury of aiding and abetting robbery while armed with a deadly weapon. He was sentenced to 64 months in prison, to be served concurrently with the sentence from the first offense. Petitioner was 22-years old at the time of the disqualifying offenses. Petitioner served 64 months (approximately five years) in a state correctional facility and eight months’ probation. The Department of Corrections terminated his supervision on December 13, 2010. At hearing, Petitioner denied that he and his co- conspirators used a gun during the Arby’s robbery. He failed to appreciate that adjudication of the offense had established a weapon was utilized. At hearing, Petitioner downplayed his involvement in the robbery of the man in the hotel parking lot. Petitioner insisted that he had no idea his cousin was going to rob the man until the robbery was underway. However, Petitioner admitted that he participated in the robbery by ordering the victim to kick over his duffle bag, while his cousin threatened the victim at gunpoint. Subsequent Non-Disqualifying Offenses Petitioner’s background screening revealed several non- disqualifying offenses subsequent to Petitioner’s incarceration.1/ Respondent alleges Petitioner had three probation violations: (1) driving with a suspended license on October 14, 1998; (2) an unspecified violation on March 23, 2004; and (3) failure to appear on May 26, 2004.2/ No court records concerning these alleged probation violations were offered in evidence. According to a letter from the Columbia County Clerk’s office, no records of the alleged violations could be located. Respondent submitted no evidence of the source of information for the alleged probation violations. The record does contain an Affidavit of Probation Violation dated March 3, 2004, in which Probation Officer Aaron Robert attested to Petitioner’s violation of a condition of his probation requiring Petitioner to complete 100 hours of community service within one year of his release from prison. The affidavit states that, as of that date, Petitioner had submitted proof of completion of only 28 hours. The record also contains an Order of Modification of Probation entered on July 8, 2004, finding Petitioner admitted to the violation, was found in violation, and adjudicated guilty of the violation. However, the same terms of probation were reinstated. The record supports a finding that Petitioner is guilty of only one probation violation subsequent to commitment of the disqualifying offenses. 20. (DWLS) in Petitioner was cited for driving with license November and December 2006; October 2009; and suspended February, July, and August 2011. 21. With regard to the November and December 2006 DWLS adjudications, Petitioner’s license had been suspended for lack of insurance. Petitioner claimed not to have known his license had been suspended when he was first stopped in November 2006. For the November 2006 DWLS charge, Petitioner pled guilty and was sentenced to serve 12 months’ probation and ordered to pay court costs, fines, and fees. Columbia County Court Judge Tom Coleman presided over Petitioner’s case, and terminated Petitioner’s probation on January 31, 2008, finding Petitioner had satisfied all conditions of probation. Petitioner likewise plead guilty to the December 2006 DWLS charge, was placed on 12 months’ probation, and ordered by Judge Coleman to complete 50 hours of community service and produce a valid driver’s license within 10 months. Judge Coleman allowed the probation to run concurrent with the November sentence. Judge Coleman terminated Petitioner’s probation on January 31, 2008, finding Petitioner had satisfied all conditions of probation. On October 4, 2008, Petitioner was cited for violating a municipal open container ordinance, and ordered to appear in Columbia County Court on October 30, 2008. Although the citation was admitted in evidence, no court record of the violation was produced in response to Petitioner’s records request. Again in 2009, Petitioner’s automobile insurance was canceled for nonpayment, leading to the suspension of his driver’s license. On October 27, 2009, Petitioner was again charged with DWLS and ordered to appear in county court on November 10, 2009. On March 11, 2010,3/ Petitioner was ordered to pay court costs, fines, and fees in the amount of $373.50 by September 9, 2010, or return to court on that date. On November 16, 2010, Petitioner appeared before Judge Coleman on the October 27, 2009 DWLS charge. Judge Coleman withheld adjudication and again sentenced Petitioner to 12 months’ probation and payment of court costs (of which $343.50 was remaining from the partial payment plan), allowing for early termination within six months, if all conditions were met. In 2011, Petitioner became employed at Target and assumed the risk of driving to and from work without a valid license in order to earn an income. Petitioner was stopped by police three separate times that year and cited for driving with a suspended license.4/ During the February 2011 traffic stop, Petitioner falsely identified himself as his cousin, and gave his cousin’s address, in an effort to avoid another citation. However, the police officer discovered Petitioner’s Target employee badge which revealed his correct identity. Petitioner was charged with both giving a false name to law enforcement (Count I) and DWLS (Count II). On March 29, 2011, Judge Coleman entered an order withholding adjudication on Count I, but adjudicating Petitioner guilty on Count II. As to Count I, Judge Coleman sentenced Petitioner to 12 months’ probation and ordered Petitioner to write a letter of apology to the arresting officer, pay court costs and fees, complete 15 community service hours per month until Petitioner either became employed or completed 150 hours, and produce a valid driver’s license within 10 months. As to Count II, Petitioner was also sentenced to 12 months’ probation to run concurrently with the sentence for Count I. Unfortunately for Petitioner, the March 29, 2011, adjudication constituted a violation of the probation order entered on September 16, 2010. On January 24, 2012, Judge Coleman entered a new judgement on the 2009 DWLS violation, sentencing Petitioner to 20 days in county jail, but allowing him to serve the sentence in consecutive weekly installments of 48 hours from 5 a.m. Sundays to 5 a.m. Tuesdays. On June 5, 2012, Judge Coleman terminated Petitioner’s probation under the September 16, 2010, judgement as Petitioner had satisfied all conditions of probation. On April 30, 2013, Judge Coleman terminated Petitioner’s probation under the March 29, 2011, judgement as Petitioner had satisfied all conditions of probation. For Petitioner’s subsequent July 12, 2011, DWLS charge, and August 27, 2011, DWLS charge, he was adjudicated guilty and sentenced to two consecutive jail terms of 30 days, probation of 12 months, and ordered to pay court costs and fees. Judge Coleman allowed Petitioner to serve the jail time on subsequently designated weekends. Petitioner was released from probation on those charges on January 29 and March 31, 2015, respectively. Petitioner has subsequently obtained a restricted license which allows him to drive to and from work, as well as to pick up his children from school and other activities. Subsequent Employment History Petitioner has had varied employment since his release from prison. He worked for Hunter Panels in Lake City on the insulation assembly line for approximately two years, then Accurate Car Care as Assistant Manager of the detail shop for another year. Petitioner’s last job in Lake City was with Target, where he was terminated for tardiness. After his relocation to Gainesville, Petitioner worked for the Florida Farm Bureau in maintenance before becoming employed by Plane Techs. Petitioner anticipates being laid off by Plane Techs at the conclusion of the current contract with Haeco, due to lack of contract opportunities. In the summer of 2014, Petitioner was certified as a basketball referee by the Mid-Florida Officials’ Association. Petitioner officiates basketball games three to four times a week during basketball season, as well as post-season tournaments. Petitioner had to undergo background screening with Mid-Florida Officials’ Association, and was originally denied certification due to his criminal record. However, the association allowed him to proceed with certification following an exemption review. Subsequent Personal History Petitioner was divorced in late 2015. Petitioner has joint custody of his five children, who reside with him every other weekend, portions of each summer, and certain holidays. For the last ten years, Petitioner has volunteered as a football coach in Lake City (commuting from Gainesville) to remain involved in his son’s life. Additionally, Petitioner has volunteered as a coach for Columbia County little league football for approximately four years. In this capacity, he has worked with children ages five, six, and seven. Petitioner has completed some of his required community service by sharing his experiences with high school students, and encouraging them to make better life choices. Petitioner remarried on November 12, 2016. The couple met approximately four and a half years earlier. Petitioner revealed his criminal history to his new wife on their third date, approximately three years earlier. Petitioner met Diyonne McGraw a little over two years ago through her husband, who is also a volunteer football coach. Ms. McGraw became more familiar with Petitioner through his wife, who is Ms. McGraw’s hairdresser. Ms. McGraw owns Successful Living II, under which she operates three group homes and is working to license a fourth. She specializes in “intensive behavior focus,” meaning she serves clients with mental health issues, sexual issues, and physical and verbal aggression, some of whom have dual and triple diagnoses, and many of whom were recently released from incarceration. Ms. McGraw is a former probation officer. She testified, credibly, that, based on her observation of Petitioner’s interaction with her own children, as well as many other children involved in recreational sports, he has the patience to effectively deal with her clients. Further, she testified that Petitioner has demonstrated a commitment to her agency and a passion for the work it entails. Petitioner’s Exemption Request In his exemption request, in response to the question regarding the “degree of harm to victim or property (permanent or temporary), damage, or injuries,” Petitioner answered, “[n]one.” In response to the question regarding any stressors in his life at the time of the disqualifying offenses, Petitioner also stated, “[n]one.” Petitioner achieved a Graduate Equivalency Diploma (GED) while incarcerated. Petitioner reported no further educational pursuits. In his exemption request, Petitioner accepted responsibility for “poor and wrong decision[s] [he] chose early in [his] life.” He admitted that he is embarrassed by his charges, but is not ashamed to talk about his history and advise young people that such mistakes can change the course of your life. Petitioner’s request also demonstrates a dedication to providing life lessons for his children and preventing them from going down the path he chose. In the employment history section, Petitioner listed only his employment with Target in Lake City. Petitioner’s exemption request included two personal reference letters--one from his wife, then Dawn Teasley, and one from Matthew Dillard, a teacher at Lake City Middle School in Columbia County. The letter from Petitioner’s wife described Petitioner as “reliable, honest and responsible” both in his capacity as maintenance and groundskeeper for her salon and as a head coach for her nephew’s football team in Lake City. She also commented on Petitioner’s “ability, patience and genuine concern and care for youth” and his ability to “bring out the very best of every youth he coaches regardless of their skill set of level.” His wife further described Petitioner as an “enthusiastic leader,” as well as “reliable, honest and responsible.” Mr. Dillard’s letter was brief. In the letter, he stated that he has known Petitioner for ten years, has played recreational basketball with Petitioner, and has worked with Petitioner at a local community center volunteering with youth. He noted that he “has never seen [Petitioner] become overwhelmed by a given task or assignment.” Along with his exemption application, Petitioner also submitted a personal letter from Judge Coleman. Petitioner received the unsolicited letter in April 2015 following Petitioner’s release from court supervision. In the letter, Judge Coleman acknowledged that he “cannot remember writing a letter like this before” but wanted to congratulate Petitioner. The letter reads, as follows: As you know, I made several decisions to give you additional time and chances to succeed despite the opposition of others. I had faith in you because I saw something in you - a determination and focus. By your actions you have justified my faith in you and I admire you for that. I am very proud of you and I know that you will go on to accomplish great things with your life. As you know, I see many people daily and I cannot always remember faces, so I request this of you. If you see me somewhere and recognize me, come and see me so I can congratulate you in person. I wish you all the best life has to offer. Keep working hard. Ultimate Facts Many of Petitioner’s recent decisions and pursuits demonstrate a commitment to a life of responsibility to family and community, concern and respect for others, and the importance of steady and reliable work. Petitioner’s volunteerism is commendable, as well as his remarriage and support of his children. Judge Coleman’s letter is evidence of Petitioner’s determination to better himself and to overcome his prior poor decisions. However, many of the facts established about Petitioner are grounds for the Agency to question his fitness to work with the most vulnerable clients. Petitioner’s attempts to downplay his involvement in the 1998 felonies evidence a lack of true remorse for his actions. His willingness to lie to a police officer, as recently as 2011, evidence a lack of respect for law enforcement, and his lack of separation from his cousins, who have been a bad influence in his past, supports the Agency’s uneasiness concerning Petitioner’s future decisions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 25th day of January, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 25th day of January, 2017.
The Issue The issue in this case is whether Respondent should grant Petitioner's application for licensure as a public adjuster, despite his having pleaded guilty to (and been convicted of) a felony involving moral turpitude (conspiracy to commit mail fraud), which conviction was not disclosed on Petitioner's application.
Findings Of Fact On August 29, 2005, Petitioner Alex Niznik ("Niznik") completed an online application for licensure as a Resident Public Property and Casualty Insurance Adjuster and submitted the form electronically to Respondent Department of Financial Services ("Department" or "DFS"). The application contained 18 "screening questions" that called for a "yes" or "no" answer. Focusing primarily on matters bearing on character and fitness, these questions sought to elicit personal information about the applicant's background. One question, for example, asked: "Have you held a resident insurance license in another state during the last three years?" Another inquired: "Have you ever had an application for a license declined or denied by this or any other insurance regulatory body?" The instant dispute arose from the eighth screening question, which asked: 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? Niznik answered, "no." At the end of the application, just above his electronic signature, Niznik checked a box manifesting agreement with the following declaration: 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 . . . . Despite having declared that his responses were true, Niznik's answer to the question of whether he had a criminal record was false. In fact, contrary to his denial of past criminal convictions, Niznik had pleaded guilty, about nine years earlier, to the felony charge of conspiracy to commit mail fraud, which is an offense against the United States. Following this guilty plea, the United States District Court, Southern District of New York, on July 25, 1996, had entered a judgment of conviction against Niznik, sentencing him to three years of probation and imposing a $50 fine. DFS discovered Niznik's conviction before granting him a license. Based on Niznik's criminal record and his failure to disclose its existence, DFS denied Niznik's application. DFS's decision was communicated to Niznik though a Notice of Denial dated July 27, 2006. Niznik was informed that he would not be eligible to reapply until after 17 years had elapsed, starting from the date of his conviction. Niznik timely requested an administrative hearing to determine his substantial interest in obtaining a license. Determinations of Ultimate Fact Because conspiracy to commit mail fraud is a felony that involves moral turpitude, and because it is undisputed that Niznik pleaded guilty to——and was convicted of——this federal crime, the Department is required by statute to deny Niznik's application for licensure. Pursuant to its rules, the Department must impose a waiting period on Niznik, which he is required to serve before becoming eligible to reapply. The usual waiting period for the type of crime of which Niznik was convicted is 15 years. An additional two years must be added to this, in consequence of Niznik's failure to disclose the conviction. Although Niznik failed to present persuasive evidence on any specific mitigating factors that might have given grounds to shorten the prescribed waiting period, he did persuade the undersigned that, more likely than not, he has been rehabilitated. Rehabilitation is a general mitigating factor that warrants a modest reduction of the waiting period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order (a) denying Niznik's application for licensure as a Resident Public Property and Casualty Insurance Adjuster and (b) imposing a waiting period of 16 years, from the date of his criminal conviction, which must be served before Niznik may reapply. DONE AND ENTERED this 22nd day of January, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 22nd day of January, 2007.
