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
Findings Of Fact When Petitioner applied to take the Florida Real Estate Salesman's Licensure Examination in approximately 1971 or 1972, it was discovered that criminal charges were still pending against Petitioner as a result of a check which had "bounced" in 1962, or 1963. He therefore made restitution on that check, even though the charges had been pending for almost ten years, and Petitioner was allowed to take the licensure examination. He failed to achieve a passing score. Petitioner did not immediately attempt to sit for the licensure examination a second time but rather simply continued operating his retail florist business. In 1976 he had a dispute with an intermittent employee who had just left Petitioner's employment and started working for one of Petitioner's competitors. When an insurance/salary reimbursement check made payable to petitioner's florist shop and that employee arrived, Petitioner endorsed the names of both payees and cashed the check. Charges arising from that $46.00 check were dismissed after Petitioner had been arrested and had made restitution. For approximately three years before her death in 1973, Petitioner and his wife "cared for" his mother-in-law who was in a nursing home. During that time her only source of income was her Social Security checks, and Petitioner had a power of attorney to sign her name and cash her checks. After her death the checks continued to come although Petitioner called and wrote the Social Security Office. He started collecting them and storing them in a box. In 1975 his florist business encountered financial difficulties, and Petitioner signed his name and his deceased mother-in-law's name to the checks he had been collecting and cashed them. He was subsequently arrested by the F.B.I. and charged with 46 counts of uttering forged U.S. Treasury checks, one count for each check. On December 12, 1977, Petitioner plead guilty and was found guilty. He was committed to some type of work release program on one count. As to counts two through 46, sentence was withheld and he was placed on probation for a period of three years with the additional condition that restitution be made. Petitioner did make restitution. Toward the end of 1982 Petitioner realized that his educational credits would soon expire and he again wished to apply to take the Real Estate Licensure Examination. Where questioned on his application whether he had ever been arrested or charged with any offenses, Petitioner responded in the affirmative and listed the 1963 bad check which was paid, the "1977" check which was paid, and a 1978 three year probation with restitution. Based upon that information, Respondent denied Petitioner's application to take the licensure examination.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure. DONE and RECOMMENDED this 27th day of August, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 27th day of August, 1984. COPIES FURNISHED: Mildred Smith Brown, Esquire 4173 Southwest LeJeune Road Miami, Florida 33146 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32001
Findings Of Fact Respondent Larry Nathan Booker is presently employed as an office manager for an insurance agent in Jay, Florida. At all times pertinent to this proceeding, he has been licensed by Petitioner as an Ordinary Life including Health agent (Testimony of Respondent, Stipulation). On June 21, 1985, in Case No. 85-00077 in The United States District Court for the Southern District of Alabama, Respondent pleaded guilty and was found guilty to a violation of 18 United States Code, Section 656, as charged in Count One of the information. Count One of the information contained the following allegations: At all times material to this information Larry N. Booker, served in the capacity of manager of the Flomaton Branch, United Bank of Atmore, Flomaton, Alabama. At all times material to this information, the deposits of the United Bank of Atmore were insured by the Federal Deposit Insurance Corporation - charter number 0058-2 dated December 23, 1969. At all times material to this information, Larry N. Booker had open a personal checking account number 02111607 with the United Bank of Atmore. At all times material to this information, Ronald E. Watkins was doing Business as Watkins Cars-Trucks, 726 Highway 90-West, Milton, Florida and Ronald E. Watkins had open a checking account with the United Bank of Atmore. On or about the 17th day of December, 1982, Larry N. Booker, the then manager of the Flomaton Branch, United Bank of Atmore, with the intent to injure and defraud the United Bank of Atmore did knowingly and willfully misapply $2,333.33 of the funds of the United Bank of Atmore. Larry N. Booker did knowingly and wilfully misapply the $2,333.33 by crediting his personal account with a debit from the account of Watkins Cars-Trucks, at the time of debit the Watkins Cars-Trucks account was in an overdrawn status and Larry N. Booker knew that the Watkins Cars-Trucks account was in an overdrawn status; all in violation of 18 United States Code, Section 656. Respondent was placed on probation for a period of five years, and required to make restitution in the amount of $2,333.33, and to pay a personal note that he had with the United Bank of Atmore. (Petitioner's Composite Exhibit 1) In explanation of his conviction, Respondent testified that in order to assist Ronald E. Watkins in keeping his rental business property from being sold by his landlord, Respondent purchased the property in his name with four investors to hold the mortgage to the property. The arrangement was for Watkins to pay Respondent rent on the property and Respondent would subsequently make payment of the rental amount to the investors under a lease-purchase agreement at a monthly payment of $2,333.33. The payment was made on an automatic debit from Watkins' bank account to Respondent's bank account. Respondent further testified that the overdraft occurred due to the fact that Watkins came into the bank between 1:30 and 2:00 p.m., paid off some of his floor plan loans to tellers, and then went directly to Respondent's assistant to work up new additional floor plan loans to offset the checks that he had just given. However, by the time the loans were prepared and signed, it was after 2:00 p.m., which was the cut-off time for bookkeeping transactions. Therefore, the overdraft in question occurred even though it was automatically covered the next day. Respondent testified that such overdrafts are a common occurrence in the banking system and that, at no time did he have an intent to defraud the bank, nor did it lose any money as a result of the overdraft. (Testimony of Respondent)
The Issue The issue to be determined in this case is whether Petitioner's application for licensure as a Resident Customer Representative insurance agent should be granted.
Findings Of Fact The Petitioner is a receptionist for an insurance agency and is seeking licensure as a Florida Resident Customer Representative from the Department of Financial Services. The Department is an agency of the State of Florida responsible for the licensing of insurance agents and customer representatives in the State of Florida, in accordance with the provisions of Chapter 626, Florida Statutes. On October 22, 2003, the Petitioner filed a license application (electronically) with the Department seeking licensure as a Resident Customer Representative insurance agent. On her application for licensure, the Petitioner answered the following question in the negative: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one 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? When the Petitioner signed her application for licensure she signed an "Applicant Affirmation Statement" and mailed it to the Department. In that statement, she swore that all the answers on the questions on the application were true and correct to the best of her knowledge and belief. She knew of the requirement to be truthful and honest on the application and that had been stressed to her by her instructor for the insurance pre-licensing course which she attended. On March 16, 1995, the Petitioner entered a plea of nolo contendere to one count of forgery and one count of uttering a forged instrument, both felonies. The related arrest had occurred on November 10, 1994. The Petitioner was sentenced to three years probation, required to make restitution, pay court fines and costs and to perform fifty hours of community service. She was to write a letter of apology to the victim and to have no contact with the victim. Adjudication of guilt was withheld. She performed all of the requirements of her sentence. She was excused by the court from providing the fifty hours of community service because she was pregnant at the time. The Petitioner acknowledges that she answered the question incorrectly and had made a mistake, because she felt the phrase "punishable by one year or more" meant that she had been imprisoned for one year or more, which she had not. She testified that she intentionally answered the question in the negative because she was not aware that her felony crimes were potentially punishable by one year or more. She signed the 1995 plea agreement, which indicated that it was then her understanding that the offenses could carry a maximum sentence of ten years imprisonment. At the time she answered the relevant question on her application, however, she did not have a present understanding or recollection that that would be the case. The point is, she answered in good faith. She did not intentionally answer the question untruthfully but rather due to a mistaken impression, after some nine or so years had elapsed, concerning the nature and effect of the punishment or potential punishment her crimes carried. The Petitioner has not had a criminal history since her 1995 plea, with the exception of a June 7, 2000 arrest in Hernando County, Florida, after her return to Florida from Tennessee, for purported violation of probation with regard to the 1995 felony case. The Petitioner's testimony demonstrates in a credible way that indeed she had fulfilled the requirements of her probation. The judge had released her from her community service requirement and the reason for the arrest, because she was believed to have failed to pay relevant costs and restitution, apparently was a mistake. She established that at or around the time of her moving to Tennessee she had paid the relevant monetary sums required with two cashiers checks. The court terminated her probation. It is found that this arrest was based upon a mistake. The Petitioner's supervisor corroborated the testimony of the Petitioner and established that the circumstances and mental impression leading to the Petitioner's negative answer show no intent to be untruthful or to defraud. The Petitioner and her witnesses (her supervisors) established that she has been fit and trustworthy in her work with the insurance agency. Petitioner has routinely handled sums of money for the agency and for insurance clients, always with proper accounting and never with any funds being missing or mis-appropriated. The Petitioner's employment provides her family's only livelihood for her and her child. Her employment is dependent on her being granted licensure as a Customer Representative. Denial of the license application will create a hardship for her. She was nineteen years of age at the time of the arrest and plea, made full restitution and complied with the terms of her probation.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department granting the licensure applied; or granting it for a probationary period of two years under reasonable terms and conditions specified by the Department in that final order. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 December, 2004. COPIES FURNISHED: 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 Tanya C. Lollie 4732 Elwood Road Spring Hill, Florida 34608 Elizabeth Penny, Certified Legal Intern Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
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).
