The Issue The issue is whether Respondent properly denied Petitioner's applications for licensure as a temporary resident life and health insurance agent and a resident life, variable annuity and health insurance agent.
Findings Of Fact Petitioner applied for licensure as a temporary resident life and health insurance agent in May 2004. In June 2004, a second application was filed on behalf of Petitioner seeking licensure as a resident life, variable annuity and health insurance agent. On May 7, 2004, Petitioner filed out an employment application with American International Group Company (AIG) seeking to become an insurance sales agent with the company. On his employment application, Petitioner disclosed to AIG that he had a criminal history, and included a written explanation of the circumstances surrounding the crime with his application. The criminal history disclosed by Petitioner arose from an incident that occurred in the State of Georgia in 1991. On September 18, 1991, Accusation No. 91-3119 was filed against Petitioner in the case of State of Georgia v. Dennis Wayne Greaves in the Superior Court of Cobb County, Georgia, charging him with violation of the Georgia Controlled Substances Act in which he was charged with intent to possess more than one ounce of marijuana. Petitioner entered a negotiated plea to this charge on October 29, 1991, and the court deferred adjudication of guilt, sentencing Petitioner to First Offender Treatment and placing him on five years' probation. On October 25, 1993, Petitioner was found to have violated probation, at which time the Superior Court of Cobb County, Georgia, entered an adjudication of guilt against Petitioner in Case No. 91-3119. At a point in time that is not clear from the record, Petitioner was hired by AIG to work as a sales agent out of the company's St. Augustine and Jacksonville offices. On May 28, 2004, an on-line application for a temporary resident life and health agent was filed with the Department. The application contained the question, "Have you ever been convicted, found guilty, or pled nolo contendre (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any . . . state . . . , whether or not adjudication was withheld or a judgment of conviction was entered?" The application form reflected a "no" answer. However, the application was not filled out by Petitioner. It was filled out by an individual or individuals in the Jacksonville AIG office. Petitioner was not present when the on-line application was filled out or when it was filed. Shortly after the online application for temporary license was filed, a "Temporary Appointment" form was submitted to the Department by AIG on behalf of Petitioner. The form included the question, "[h]as the applicant ever been convicted, found guilty, or pleaded guilty or nolo contendre (no contest) to a felony." Despite the fact that Petitioner had disclosed his criminal history to AIG on his application for employment, the question was answered in the negative. Again, Petitioner did not participate in the completion of the "Temporary Appointment" form which was signed by the General Manager of AIG's Jacksonville office. In addition to the temporary license, Petitioner needed to make application for and receive a permanent license in order to carry out his job at AIG. Petitioner and his immediate supervisor in AIG's St. Augustine office attempted to file an online application for a permanent license. However, they were unable to submit the online application because Petitioner had not yet passed the required 40-hour pre-licensing class, and could not, therefore, supply a "date completed" answer on the application. In the process of filling out the application, Petitioner answered the criminal history question in the affirmative. After receiving notification that the permanent license application could not be filed until Petitioner passed the pre- licensing course, someone in the AIG Jacksonville office completed the online application for Petitioner by supplying what apparently was a guess or estimated completion date for the course. Again, Petitioner was not present when this second application was completed and filed with the Department. In response to the criminal history question, a "no" answer was again supplied to the Department. Petitioner's testimony regarding the instances in which his employer incorrectly answered the criminal history question incorrectly is consistent, credible, and supported by corroborating evidence. That is, he did not answer the criminal history questions falsely. In the instances when he personally filled out applications, he answered the questions regarding his criminal history truthfully. In the instances that an incorrect answer was submitted on the application, those answers were submitted by others without his knowledge and contrary to the information he had given to his employer. Accordingly, Petitioner did not make a material misstatement, misrepresentation, or commit fraud in applying for licensure with the Department. The Department's Amended Notice of Denial is based solely on his failure to acknowledge his criminal history on the applications in question.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order rescinding its Amended Notice of Intent to Deny Petitioner's applications for licensure and to grant such licensure when all requirements for licensure have been met. DONE AND ENTERED this 1st day of March, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 1st day of March, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0330 Dennis Wayne Greaves, Jr. 101 Meadows Avenue St. Augustine, Florida 32804 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent properly denied Petitioner's application for a license as a resident independent all-lines insurance adjuster.
Findings Of Fact In June 2002, Petitioner was an 18-year-old high student. Early in the morning of June 1, 2002, Petitioner and two friends entered three unoccupied vehicles and stole several items, including a couple of cell phones. On October 9, 2002, in the Circuit Court in and for Santa Rosa County, Florida, Case No. 02-518, Petitioner entered a guilty plea to two counts of Burglary of an Unoccupied Conveyance, each count being a third-degree felony, and Petit Theft, a second-degree misdemeanor. On October 9, 2002, in the Circuit Court in and for Santa Rosa County, Florida, Case No. 02-720, Petitioner entered a guilty plea to one count of Burglary of an Unoccupied Conveyance, a third-degree felony, and Petit Theft, a second- degree misdemeanor. On November 1, 2002, the circuit court Judge entered an Order Withholding Adjudication of Guilt and Placing Defendant on Probation in Circuit Court Case Nos. 02-518 and 02-720. Petitioner was placed on probation for 18 months for each felony and 12 months for each misdemeanor, to be served concurrently. On or about April 14, 2004, Petitioner successfully completed his probation. From May 7, 2004, until October 5, 2004, Petitioner attended the Pensacola School of Massage Therapy. Petitioner is now a licensed massage therapist. On February 14, 2006, Petitioner completed a class for professional training as an accredited claims adjuster. On February 15, 2006, Petitioner filed an application for a license as a resident independent all-lines insurance adjuster. One question on the application stated as follows: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No Petitioner answered the question in the negative based on erroneous information provided to him by someone in his probation office. An attorney subsequently advised Petitioner that he should have answered the question affirmatively. In a letter dated March 23, 2006, Petitioner advised Respondent that he had incorrectly answered the question about his criminal record. Petitioner expressed his regret that he failed to disclose his criminal record on the application. He also requested consideration of his professional accomplishments and clean record since 2002. According to Petitioner, he never intended to make a false or misleading statement when he signed his application, indicating that he did not have a criminal record. By letter dated April 14, 2006, Respondent requested a written explanation, outlining the events which led to each of the arrests/charges. In a letter dated June 15, 2006, Respondent denied Petitioner's application based on his felony convictions and his failure to disclose his criminal record. Despite his poor judgment as a young adult, which resulted in a criminal record, Petitioner has matured into a productive citizen. In addition to massage therapy, Petitioner has two other business interests. He works as an interior contractor and invests in real estate. Additionally, he is married and the father of a child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 11th day of October, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2006. COPIES FURNISHED: William G. Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Randall Lee Woodall, Sr. 6300 Saragon Lane Milton, Florida 32583 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza 11 Tallahassee, Florida 32399-0300
Findings Of Fact During 1977, while licensed as an insurance agent, Mr. Yesnes engaged in a scheme to fraudulently obtain sales commissions from various insurance companies. He submitted applications for insurance coverage without the prior consent of the purported applicants. He obtained the data to fill in their application forms from information contained in previous policy records. This scheme was admitted by Mr. Yesnes when he appeared before a Department of Insurance investigator, Eugene Petree, III, to explain consumer complaints against him related to the bogus applications. On February 24, 1977 Mr. Yesnes, while registered with the Department as a non-resident agent, sold a $50,000 decreasing term life insurance policy to a 65 year old widow, Mrs. Inez Cameron. This sale was made in Pensacola, Florida, where both Mr. Yesnes and Mrs. Cameron were living at the time. The beneficiary of the policy was designated as "the estate of Inez Cameron." When that designation was made, Mr. Yesnes was the legatee of Mrs. Cameron's will. Mr. Yesnes later requested the company issuing the policy, United Presidential Life Insurance Company, to change the beneficiary of the policy to himself by name, but the company refused to make the change. Under the foregoing circumstances it is contrary to the standards of the insurance industry for an agent to sell a policy in which he is made the beneficiary. Mrs. Cameron was a widow and had no known living close relatives. She had established a personal "mother-son" relationship with Mr. Yesnes and for a period of time they lived together. For the last year and a half Mr. Yesnes has been a pizza wholesaler in the Pensacola area. He contracts for a supplier to manufacture the pizzas which Mr. Yesnes then sells to bars and small restaurants who cannot economically produce their own pizzas. According to his present supplier Mr. Yesnes sells a product of a much higher quality than the purchasers should expect to get for their cost. His present supplier, Mr. Meehan, has known Mr. Yesnes for eight to nine months. In his opinion Mr. Yesnes is trustworthy and reliable. He pays his bills on time and keeps his obligations. Mr. Secchiari, the owner of Genos Pizza in Pensacola, is Mr. Yesnes' former supplier. He too believes him to be trustworthy and reliable. In his opinion as an insurance consumer he believes that if licensed, Mr. Yesnes would be better than some life insurance agents and not as good as others. Mr. Yesnes has always been prompt in paying his bills with Mr. Secchiari. Mr. Yesnes was initially licensed as an insurance agent in Florida in February 1965. Three years later he moved to Atlanta, Georgia. He later moved to Pensacola in 1976 where he was employed by the Franklin Life Insurance Company. During that employment he was supervised by Michael Howard, an area manager. Mr. Howard had contact with Mr. Yesnes for a period of eighteen months. On the basis of that experience Mr. Howard is of the opinion that Petitioner is ethically unfit to be in the insurance business. Respondent offered testimony from Ms. Dorothy Dale Godwin and Ms. Sarah Dawson in the form of their opinion of Petitioner's character. This testimony is not accepted as credible. It lacks an adequate foundation because the witnesses contact with Mr. Yesnes was fleeting. Due to their relationship with Mrs. Cameron they are also found to be biased against Mr. Yesnes. On his pending application for licensure Mr. Yesnes gave 804 Royce Street, Pensacola, Florida 32503 as his address for the past five years. In fact, during that time he lived in Atlanta, Georgia; Mobile, Alabama; and at different addresses in Pensacola. He gave the 804 Royce Street address because that is where his father lives. At times Petitioner has lived there and he considers it his permanent address. At no time during these proceedings has Petitioner expressed regret for any past unprofessional actions. He has also not expressed any commitment not to engage in unprofessional behavior in the future, if licensed to sell insurance in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent, Department of Insurance and Treasurer, enter a final order denying the application of Ivan Yesnes for a license as a life agent in the State of Florida. DONE and RECOMMENDED this 14th day of July, 1981, in Tallahassee, Florida MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1981.
The Issue In Case No. 99-2748, should Elvira Demdam, d/b/a San Juan Retirement Home, be administratively fined for operating an unlicensed facility, and if so, in what amount? In Case No. 99-2755, should Elvira Demdam, d/b/a Ingleside Retirement Home, be administratively fined for exceeding the home's licensed capacity, and if so, in what amount?
Findings Of Fact AHCA is the state agency responsible for licensing and regulation of ALFs in Florida. Respondent, Elvira Demdam, operates both Ingleside Retirement Home and San Juan Retirement Home in Jacksonville, Florida. Gloria Wolfe is employed by AHCA to inspect ALFs for compliance with state and federal regulations for such facilities. Elvira Demdam is the licensee for Ingleside Retirement Home. The effective date of the license for Ingleside was October 27, 1997. Its expiration date was October 26, 1999. On April 26, 1999, Ms. Wolfe surveyed a facility doing business as San Juan Retirement Home due to a complaint that San Juan was operating as an unlicensed ALF. During Ms. Wolfe's inspection, San Juan Retirement Home had four residents, all of whom were being provided personal services by the home, including assistance with meals, administration of medications, and assistance with other essential activities of daily living. Therefore, the San Juan facility was being operated as an ALF on April 26, 1999. In a letter dated April 27, 1999, AHCA imposed a moratorium on admissions, effective April 26, 1999, on Ingleside Retirement Home, because Ms. Demdam had an interest in Ingleside Retirement Home and an interest in San Juan Retirement Home, which was operating without a license. The moratorium for Ingleside was to remain in force until the unlicensed facility (San Juan) ceased operation, and no residents could be readmitted without approval of AHCA. On April 27, 1999, Ms. Wolfe's superior, Mr. Robert Dickson, recommended a $1,000.00 sanction, based on Ms. Wolfe's report and because he believed that previous sanctions had been recommended against the Ingleside Retirement Home within the licensure period for the same type of deficiency. However, at hearing, he did not specify any previous sanctions against Ingleside, similar or otherwise. Elvira Demdam is the licensed administrator of Ingleside Retirement Home and should have known of the legal requirement that San Juan Retirement Home be licensed. Indeed, by her own admission, Ms. Demdam had been a nursing home administrator for four years, knew of the licensure requirement, and had been attempting to license the San Juan facility since at least 60 days before the property was transferred to her. San Juan was licensed to another person at the time Ms. Demdam took it over. That prior license had expired in December 1998, and Ms. Demdam did not get San Juan Retirement Home licensed in her name until July 1999. Ms. Demdam's exhibits support her testimony that much of her license application paperwork for San Juan Retirement Home was lost in the mail or within AHCA and that ACHA repeatedly required that she re-submit the same documents. However, she did not establish that the Agency failed to grant or deny her application within 90 days of submission of all necessary application items. The fact remains that on April 26, 1999, Ms. Demdam was operating San Juan Retirement Home without a valid ALF license. Although Ms. Demdam asserted that one or more of the San Juan residents were non-blood relatives who had lived with her as family members since 1995, she offered no corroborative evidence on this issue, and this assertion is not found to be credible. Ms. Wolfe also participated in a May 4, 1999, monitoring visit and survey of Ingleside Retirement Home. At that time, she found Ingleside to be operating in excess of its licensed capacity. Ingleside Retirement Home is licensed for 18 residents, but in fact, had 19 residents on that date. Ms. Wolfe personally reviewed residents, room by room, and made a census of Ingleside Retirement Home on May 4, 1999. Her census shows that a nineteenth resident, S.W., had been admitted to Ingleside in March 1999. Ms. Wolfe's investigation revealed that this resident was not noted in Ingleside's admissions/discharge log. Despite arguments that this deficiency constituted a Class III violation, an A-004 "not classified" deficiency was actually issued. (See ACHA Exhibit 4, page 3) Ms. Demdam's explanation for the extra resident in Ingleside Retirement Home was that she had taken in S.W. at the request of a case worker for the Department of Children and Family Services (DCF) as an emergency placement on a weekend for a projected stay of only two to four weeks but that due to unforeseen circumstances, DCF had not removed S.W. timely. It is unclear from this record whether the patient, S.W., put the census of Ingleside over 18 patients in March, the time that she was first taken in. It is also unclear exactly how long S.W. caused Ingleside's census to exceed the 18 patients provided for on its license, but as of May 1999, Ms. Demdam was providing care for S.W. and another Ingleside resident, J.J., without pay. Mr. Dickson testified that he recommended a $1000.00 fine as a sanction for having the one extra resident in Ingleside Retirement Home on May 4, 1999, because of prior sanctions recommended within the licensure period for the same type of deficiency. However, the only similar deficiency or sanction he noted during his testimony was the Ingleside moratorium which had been based upon the lack of licensure of the San Juan facility. By a letter dated May 7, 1999, AHCA notified the Respondent of the findings supporting the imposition of a moratorium at Ingleside. Ms. Demdam testified credibly that she moved S.W. out of Ingleside Retirement Home as soon as she was notified and that she cleared-out the four residents of San Juan Retirement Home as soon as possible. Mr. Dickson views both ALF citations very seriously because operating an ALF without a license can be prosecuted by the State Attorney as a third-degree felony (see Section 400.408(1)(b)-(c), Florida Statues, (Supp. 1998) and because he views Ms. Demdam's long practice and licensure in the ALF field to demonstrate her knowing and willful disregard of the law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding Respondent guilty of operating an unlicensed facility and imposing an administrative fine in the amount of $1,000 in DOAH Case No. 99-2748; and That the Agency for Health Care Administration enter a final order finding Respondent guilty of exceeding her licensed capacity at Ingleside Retirement Home, and imposing an administrative fine in the amount of $500.00 in DOAH Case No. 99-2755. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3408D Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elvira Demdam, Administrator San Juan Retirement Home Un-Licensed 6561 San Juan Avenue Jacksonville, Florida 32210 Elvira Demdam, Administrator Ingelside Retirement Home 732 Camp Milton Lane Jacksonville, Florida 32220 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the Respondent properly denied the Petitioner's application for licensure as a Resident All Lines Insurance Adjuster for a material misstatement on her application?
Findings Of Fact The Petitioner, Krista Rose Navarro, filed an application with the Respondent for licensure as a Resident Independent All Lines Insurance Adjuster (05-20) by letter dated December 30, 2004. This application was filed on line. As part of that application the Petitioner answered, "no," to the 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 law of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? The Respondent conducted a criminal records file check that revealed that the Petitioner had entered a plea to a count of mail fraud in the Federal District Court for the Central District of California in 1986. The records of this proceeding under the seal of the records custodian of the National Archives and Records Administration were introduced as Department's Composite Exhibit 2. Based upon this information, the Respondent determined that (1) the period an applicant would have to wait to be licensed for the offense involved was 15 years, and that this had run; and (2) the Petitioner's failure to disclose the offense resulted in extending the licensure eligibility date until December 30, 2005. Based upon this latter determination, the Respondent denied the Petitioner's application for licensure. The Petitioner testified that the portion of the question that stated, "pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the law" was confusing to her. She took the question to require reporting an offense for which one was imprisoned for a year or more, and that she had not intentionally failed to reveal the offense. In support of this contention, the Petitioner pointed out that she was currently a licensed real estate broker and held this license for ten years, and had revealed the subject offense and plea on the application for that license. She also introduced a letter from her child's school, the Petitioner's Exhibit 2, which indicated that the Petitioner had shared the information about her plea with the principal of the school as part of the vetting of parental chaperones. The Petitioner passed that vetting process. Although the underlying facts of the offense to which the Petitioner entered the plea are not relevant to the matters under consideration, they show the Petitioner engaged in a telephone marketing ploy in which businesses and offices were called and copier products were offered for sale at current prices before an anticipated price increase. Although not stated, an impression was given that the salesperson was a representative of the supplier usually used by the office being called, and the "price hike" was not factual, but a sales gimmick. The "handling charges" and similar fees in these transactions were very high, although the products were delivered to the purchasers. Such practices are specifically prohibited today, but were not specifically proscribed at the time. The Petitioner was cooperative with authorities when arrested, and is now remorseful about her conduct at the time considering this is an embarrassing epiphany in her life; however, she has fully disclosed the facts as indicated above when she perceived it was necessary. The Petitioner has her own real estate brokerage; has never been the subject of disciplinary action by those licensing authorities; and is a long-time resident of her community. She is married, has two children, and takes part volunteering at her children's school, as indicated above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Financial Services issue the Petitioner as a Resident Independent All Lines Insurance Adjuster. DONE AND ENTERED this 2nd day of June, 2005, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN 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 2nd day of June, 2005. COPIES FURNISHED: Krista Rose Navarro 111 Placido Place Panama City Beach, Florida 32413 Dana M. Wiehle, 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 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
