Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order granting Edward Thomas Harding's application for licensure as a real estate salesman. RECOMMENDED this 24th day of January, 1985 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 24th day of January, 1985.
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.
The Issue The issue in this proceeding is whether William Jeffery Mishko's application for qualification as general lines agent should be denied for the reasons stated in the letter of denial: nolo contendere plea to a felony failure to reveal that plea on the application, based on the provisions of subsections 626.611(1)(2) and (7) F.S. and subsection 626.621(8) F.S.
Findings Of Fact William Jeffery Mishko, 1649 Algonquin Trace, Maitland, Florida, submitted his application, dated December 26, 1986, to the Department of Insurance, seeking qualification to take the examination for licensure as a general lines agent or solicitor. At the time that he filled out the application he was attending an insurance school, Hilda Tucker School, in Ft. Lauderdale, Florida. It was the first day of class and the students were told to get their applications in for the examination. He hurriedly completed the form and mailed it. A series of questions on the form address criminal history of the applicant. Those questions and Mishko's responses are: 8. Have you ever been charged with a felony? Yes if YES give date(s): 5/23/84 What was the crime? controlled Stubstnce[sic] Where and when were you charged? Winter Springs C.C. Tuskawilla Did you plead guilty or nolo contendere? No Were you convicted? No Was adjudication withheld? x Please provide a brief description of the nature of the offense charged. [writing struck through] controlled substance If there has been more than one such felony charge, provide an explanation to each charge on an attachment. Certified copies of the information or indictment and Final Adjudication for each charge is required. ---No Mishko testified that he started to explain the whole story on 8.(f), but there was insufficient space. He did not attach an additional sheet and did not attach a copy of the court documents as they were not available to him at the time. Later, the agency returned his application to him with the incomplete items circled. The question at 8.(c) was circled, as well as others relating to residence and employment in the past five years. Mishko then went to the Seminole County courthouse, obtained the certified copies and sent them to the agency. The court records reveal that on January 13, 1986, in case no. 85-999 CFC, in circuit Court of Seminole county, William Jeffery Mishko entered a plea of nolo contendere to possession of a controlled substance. Adjudication was withheld and he was placed on probation for three years. Mishko had been arrested on May 23, 1985, with two friends. He said that he was at work at the golf and country club and two friends came to see him with a small amount of cocaine. The police found them in the golf cart shed and arrested them for possession of cocaine and paraphernalia. The information, dated August 12, 1985, alleges a violation of section 893.13 F.S.. Mishko attributes the errors in the answers on the form itself to his haste to get the application filed so he could take the examination as soon as he finished the course in Ft. Lauderdale. When he followed up the application with the certified court records, he did not amend the application form with the accurate date of arrest or with the correct answer to 8.(c).
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Insurance enter a final order denying William Jeffery Mishko's application based upon subsection 626.621(8) F.S. DONE and RECOMMENDED this 20th day of July, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1254 The following constitute my specific rulings on the parties proposed findings of fact. Petitioner's Proposed Findings of Fact Adopted in paragraphs #1 and #2. Adopted in paragraph #2. Adopted in paragraphs #3 and #4. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph #3. Adopted in paragraph 4. Rejected as irrelevant. See paragraph 4, Conclusions of Law. 7-8. Adopted in paragraph #5. 9-11. Adopted in substance in paragraph #4. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Gerald Rutberg Esquire Post Office Box 977 Casselberry, Florida 32707 Rainell Y. McDonald, Esquire Richard W. Thornburg, Esquire Department of Insurance Room 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue The issue is whether Rule 4-211.042(8), Florida Administrative Code, contravenes Section 626.641(2), Florida Statutes, by imposing a waiting period in excess of two years for licensee whose license has been revoked to reapply for licensure.
Findings Of Fact From 1984 through November 28, 2000, Petitioner was licensed as a general lines insurance agent. On May 15, 2000, the Miami-Dade County State Attorney charged Petitioner with a felony violation of Section 817.034(3)(d), Florida Statutes (2003). The information alleged that Petitioner had participated in an organized scheme to defraud a person of less than $20,000 from December 1, 1997, through January 31, 1999. (All references to Sections are to Florida Statutes (2003), unless the context indicates otherwise.) On September 14, 2000, Petitioner entered a plea of no contest to the charge, and the court entered a finding of guilt, but withheld adjudication. The court ordered that Petitioner remain on probation and pay court costs. The period of probation was specified in a separate order that is not part of the present record. On the same day, Petitioner entered into a Settlement Stipulation for Consent Order with Respondent. The settlement stipulation acknowledges that Respondent has alleged that Petitioner misappropriated homeowners and flood insurance premiums and uttered forged insurance documents. The settlement stipulation memorializes Petitioner's "voluntary return" to Respondent of all licenses previously issued to him by Respondent and Petitioner's understanding that the return of the licenses has the same effect as a revocation of these licenses, pursuant to Section 626.641, Florida Statutes (2000). The final paragraph of the settlement stipulation states: No person whose licenses, appointments and eligibility for licensure have been revoked by the Department shall have the right to apply for another license or appointment under the Insurance Code within two (2) years from the date of the Consent Order to be issued in this case. The Department shall not, however, grant a new license or appointment or reinstate eligibility to hold such license or appointment if it finds that the circumstance or circumstances for which the eligibility was revoked or for which the previous license or appointment was revoked still exist or are likely to recur. After the Treasurer and Insurance Commissioner approved the settlement stipulation, Respondent issued a Consent Order, which incorporates the settlement stipulation and revokes Petitioner's "licensure and eligibility for licensure as an insurance agent . . . pursuant to Section 626.641(2), Florida Statutes (2000)." The final paragraph of the Consent Order, which was filed November 28, 2000, contains a paragraph identical to the final paragraph, quoted above, of the settlement stipulation, except for minor rewording and the addition of a citation in the second sentence to Section 626.641(1), Florida Statutes (2000). Prior to the expiration of two years following the issuance of the Consent Order, the Legislature passed Chapter 2002-206, Laws of Florida. Taking effect on October 1, 2002, Section 11 adds Section 626.207 which provides: The department shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation pursuant to s. 626.611, s. 626.621, s. 626.8437, s. 626.844, s. 626.935, s. 626.9917, s. 634.181, s. 634.191, s. 634.320, s. 634.321, s. 634.422, s. 634.423, s. 642.041, or s. 642.043. The purpose of the waiting periods is to provide sufficient time to demonstrate reformation of character and rehabilitation. The waiting periods shall vary based on the type of conduct and the length of time since the conduct occurred and shall also be based on the probability that the propensity to commit illegal conduct has been overcome. The waiting periods may be adjusted based on aggravating and mitigating factors established by rule and consistent with this purpose. On October 17, 2002, Respondent adopted Rule 4-211.042, Florida Administrative Code. (All references to Rules are to the Florida Administrative Code.) Rule 4-211.042(8) provides: Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date. Class A Crime. The applicant will not be granted licensure until 15 years have passed since the trigger date. Class B Crime. The applicant will not be granted licensure until 7 years have passed since the trigger date. Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date. The Department shall not impose any waiting period pursuant to this rule where the only crime in an applicant’s law enforcement record is a single felony crime that results from the applicant’s passing of a worthless check, or obtaining property in return for a worthless check, and the amount of the check or checks involved in the single felony crime is $500 or less. However, this subparagraph shall not apply where a felony crime resulting from the applicant’s passing of a worthless check, or obtaining property in return for a worthless check is not the only crime in an applicant’s law enforcement record. Rule 4-211.042(21) provides that Class A crimes include 64 felonies ranging from treason, murder, and air piracy, to unlawful possession of a postal key and defrauding an innkeeper. Rule 4-211.042(21)(2) includes fraud. Rule 4-211.041(11) provides that the "trigger date" is the date on which the applicant was found guilty, pleaded guilty, or pleaded no contest. As is apparent from the Notice of Denial, described below, the trigger date is the earliest of these three events. Section 626.641(2) provides: No person or appointee under any license or appointment revoked by the department or office, nor any person whose eligibility to hold same has been revoked by the department or office, shall have the right to apply for another license or appointment under this code within 2 years from the effective date of such revocation or, if judicial review of such revocation is sought, within 2 years from the date of final court order or decree affirming the revocation. The department or office shall not, however, grant a new license or appointment or reinstate eligibility to hold such license or appointment if it finds that the circumstance or circumstances for which the eligibility was revoked or for which the previous license or appointment was revoked still exist or are likely to recur; if an individual's license as agent or customer representative or eligibility to hold same has been revoked upon the ground specified in s. 626.611(12), the department or office shall refuse to grant or issue any new license or appointment so applied for. On January 10, 2003, Petitioner filed an application for licensure as a general lines agent. On February 13, 2003, Respondent issued a Notice of Denial. The Notice of Denial explains that Section 626.611(14) provides that Respondent shall deny an application for a license if it finds that the applicant has been found guilty of, or pleaded guilty or no contest to, a felony involving moral turpitude, without regard to adjudication, and that Section 626.621(8) provides that Respondent may deny an application for a license if it finds that the applicant has been found guilty of, or pleaded guilty or no contest to, a felony. The Notice of Denial cites Rule 4-211.042(8) with respect to the waiting time before licensure due to a record of a single felony. The Notice of Denial concludes that Respondent is subject to a waiting period of 14 years from when he was found guilty, pleaded guilty, or pleaded no contest. Petitioner is substantially affected by Rule 4-211.042(8)(a). The effect of this rule is to preclude Petitioner's application from consideration for 14 years from the trigger date. Given the resolution of this case, it is unnecessary to determine if Petitioner has standing to contest the remaining subsections of Rule 4-211.042(8).
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
