09-006642 James Gregory Basara vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, May 27, 2010.

Summary: Petitioner failed to demonstrated his eligibility for license in light of his prior criminal history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES GREGORY BASARA, )

)

Petitioner, )

)

vs. ) Case No. 09-6642

)

DEPARTMENT OF )

FINANCIAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 29, 2010, a hearing was held in Tallahassee,

Florida, before Lisa Shearer Nelson, a duly-appointed

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: James Gregory Basara, pro se

1537 Chatham Court

St. Augustine, Florida 32092

For Respondent: Robyn Blank Johnson, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a resident company employee all lines adjuster should be granted.

PRELIMINARY STATEMENT

Petitioner applied for a license as a resident company

employee all lines adjuster. On November 6, 2009, the Department

of Financial Services (DFS or Respondent) issued a Notice of

Denial with respect to Petitioner's application based upon

Petitioner's criminal history. Specifically, the Department

indicated it was denying Petitioner's application because of a

1989 felony conviction for aggravated assault in Pennsylvania,

and a 2004 plea of nolo contendere to the felony of resisting an

officer with violence, in St. Johns County, Florida. The

Department relied on Section 626.611 (7) and (14), Florida

Statutes, to deny licensure, and, pursuant to Florida

Administrative Code Rule 69B-211.042(9)(a), established his

waiting period for any future application at 20 years.

Petitioner elected to challenge the denial of licensure and

requested a Section 120.57(1) hearing. On December 8, 2009, the

matter was referred to the Division of Administrative Hearings

for assignment of an administrative law judge. The case was

originally scheduled for hearing on February 17, 2010. At the

request of Respondent, the matter was rescheduled for March 29,

2010, and proceeded as scheduled.

At the commencement of hearing, Respondent moved to amend

the Notice of Denial to reflect that with respect to the

Pennsylvania conviction, the Respondent was "convicted by a jury

or pled guilty to aggravated assault, a felony." Petitioner did

not object and the Motion to Amend the Notice of Denial is

granted. Petitioner presented no witnesses and Petitioner's

Composite Exhibit 1 was admitted into evidence. The Department

presented the testimony of Amelia Spears and Respondent's

Exhibits 1-5 were admitted into evidence. Official recognition

was taken of Sections 120.569, 120.57, 120.60, 626.015, 626.171,

626.207, 626.611, 626.621, Florida Statutes (2009), and Florida

Administrative Code Rules 28-106.201-217, 69B-211.041 and 69B-

211.042.

At hearing, the Department indicated that it was going to

order a transcript, and, based upon the transcript being filed

April 12, 2010, the parties were given until April 22, 2010, to

file their proposed recommended orders. Both parties timely

filed their Proposed Recommended Orders, but to date no

transcript has been filed and Respondent's Proposed Recommended

Order indicates that ultimately, the transcript was not ordered

by either party. Both post-hearing submissions have been

carefully considered in the preparation of this Recommended

Order. All references to Florida Statutes are to the 2009

codification.

In addition, during the preparation of the Recommended Order

in this case, an Amended Final Order was issued in Armando Cesar

Santana v. Department of Financial Services , Case No. 09-0829RX

(DOAH Apr. 29, 2010), which found that portions of Florida

are invalid exercises of delegated legislative authority. As a

result, on May 11, 2010, the undersigned issued an order in this

case advising the parties that the Recommended Order in this case

would not issue until the time for filing an appeal in the

Santana case had expired. The parties were permitted, if they so

chose, to file Supplemental Proposed Recommended Orders

addressing the effect of the Santana decision on the decision in

this case.

On May 26, 2010, the Department filed a Notice of Appeal in

the Santana case, and on May 27, 2010, the Department filed a

Status Report in this case to that effect. To date, neither

party has submitted or requested to submit supplemental proposed

recommended orders. Section 120.56(3), Florida Statutes (2009),

"delays the date on which a rule shall become void until after

appellate proceedings have ended." Abbott Labs. v. Mylan

Pharms., Inc. , 15 So. 3d 642, 653 (Fla. 1st DCA), review denied ,

26 So. 3d 582 (Fla. 2009). Therefore, inasmuch as Florida Code

the pendency of the appeal, issuance of this Recommended Order is

appropriate.

FINDINGS OF FACT

1. The Department is the state agency responsible for

licensing and regulation of insurance adjusters in the State of

Florida pursuant to Chapter 626, Florida Statutes.

2. On February 21, 1989, Petitioner was found guilty by a

jury of aggravated assault, a felony, in the Common Pleas Court

of Philadelphia, Case No. CP88-06-0164. The original sentence of

probation entered November 13, 1989, was vacated on January 30,

1991. Petitioner was re-sentenced November 26, 1991, to not less

than five and not more than ten years of imprisonment. The

action taken in Pennsylvania is based on a criminal complaint

that alleges Petitioner shot a police officer with a handgun,

while the police officer was attempting to arrest him.

3. On November 15, 2004, Petitioner pled nolo contendere to

resisting an officer with violence, a felony, in the Circuit

Court in and for St. Johns County, Florida, in Case No.

04001546CF. Adjudication was withheld and Petitioner was

sentenced to a term of five years of probation.

4. On July 1, 2009, Petitioner submitted to the Department

an application for licensure as a resident company employee all

lines insurance adjuster. The application included the following

question:

Have you ever been convicted, found guilty,

or pled 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 judgment of conviction was

entered?

5. On the form submitted to the Department, Petitioner

provides information related to an incident occurring June 13,

2003, in Saint Augustine, Florida, which presumably is related to

the plea of nolo contendere in 2004, referenced in paragraph 3

above.

6. The application does not divulge the Pennsylvania

conviction. However, the Department conducts a background

investigation on applicants, including a fingerprint check with

both state and national law enforcement. Apparently, the

Department requested additional information from Mr. Basara, and

on August 20, 2009, he provided additional information regarding

both the Pennsylvania and Florida crimes. With respect to the

Pennsylvania crimes, Petitioner stated:

In this paragraph I hope to outline the

Pennsylvania charges. Over two decades ago

on May 23, 1988, I was arrested and charged

with things that I was not guilty of. I was

twenty three years old. I do not claim to be

completely innocent, but I was not guilty of

the charges filed against me because there

was no malicious intent on my part and my

actions were in self defense. Never-the-less

I accepted responsibility for my actions, was

convicted and given probation by the judge.

That same year I bought a home, got married,

had my first daughter Amanda with my wife

Barbara and went on to complete two years of

the probationary sentence when I found out

that the District Attorney had successfully

appealed my probationary sentence. This

required me to be re-sentenced to the

Pennsylvania Department of Corrections. I

appealed this "re-sentencing" and after 22

months I was successful. The Superior Court

overruled the Lower Court and vacated my

sentence completely. With agreement of the

Appellate Superior Court, Common Pleas

Judges, the District Attorney and myself we

finally agreed on reduced charges and 5 years

probation which was the "Final" final

disposition. I completed all of the

requirements with no problem and have gone on

to live a productive and happy life since

then.

7. No documentation was submitted into evidence at hearing

to support Petitioner's assertion that upon reversal of his

sentence the second time, he pleaded guilty and was once again

sentenced to probation. 1/

8. On November 6, 2009, the Department issued a Notice of

Denial, informing Respondent that denial of his application for

licensure was based upon the criminal conviction in Pennsylvania

and the plea of nolo contendere in St. Johns County, Florida.

Based upon its interpretation of Florida Administrative Code

rules establishing eligibility requirements, the Department

determined his waiting period to apply for licensure to be 20

years from the date of the second felony, i.e. , from the date he

pled nolo contendere in St. Johns County.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter and the parties to this action in

accordance with Sections 120.569 and 120.57(1), Florida Statutes.

10. Petitioner is the person seeking licensure in this

proceeding. He bears the ultimate burden of proving entitlement

to a license and that he meets all of the relevant statutory

criteria for obtaining a license. Department of Banking and

Finance v. Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla.

1996).

11. Several statutory and rule provisions are relevant to

the Department's determination regarding Petitioner's eligibility

for licensure. For instance, Section 626.201, Florida Statutes,

provides:

(1) The department or office may propound

any reasonable interrogatories in addition to

those contained in the application, to any

applicant for license or appointment, or on

any renewal, reinstatement, or continuation

thereof, relating to the applicant's

qualifications, residence, prospective place

of business, and any other matter which, in

the opinion of the department or office, is

deemed necessary or advisable for the

protection of the public and to ascertain the

applicant's qualifications.

(2) The department or office may, upon

completion of the application, make such

further investigation as it may deem

advisable of the applicant's character,

experience, background, and fitness for the

license or appointment. Such an inquiry or

investigation shall be in addition to any

examination required to be taken by the

applicant as hereinafter in this chapter

provided.

(3) An inquiry or investigation of the

applicant's qualifications, character,

experience, background, and fitness must

include submission of the applicant's

fingerprints to the Department of Law

Enforcement and the Federal Bureau of

Investigation and consideration of any state

criminal records, federal criminal records,

or local criminal records obtained from these

agencies or from local law enforcement

agencies.

12. Section 626.211, Florida Statutes, provides that under

certain circumstances, the Department is compelled to deny

licensure to an applicant. Section 626.611 provides in pertinent

part:

The department shall deny application for . .

. the license or appointment of any

applicant, . . . if it finds that as to the

applicant, . . . any one or more of the

following applicable grounds exist:

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business

of insurance.

* * *

(14) Having been found guilty of or having

pleaded guilty or nolo contendere to a felony

or a crime punishable by imprisonment of 1

year or more under the law of the United

States of America or of any state thereof or

under the law of any other country which

involves moral turpitude, without regard to

whether a judgment of conviction has been

entered by the court having jurisdiction of

such cases.

13. While denial of an application for licensure based upon

the grounds enumerated in Section 626.611 is compulsory, the

Legislature has authorized the Department to adopt rules

establishing specific waiting periods for a person to become

eligible for licensure following a denial pursuant to several

provisions within the Insurance Code, including denial pursuant

to Section 626.611. "The purpose of the waiting periods is to

provide sufficient time to demonstrate reformation of character

and rehabilitation" and "may be adjusted based on aggravating and

mitigating factors established by rule and consistent with this

purpose." § 626.207, Fla. Stat.

14. Consistent with this directive, the Department has

adopted rules establishing classifications of crimes, the length

of the waiting period for each class; and how the waiting period

for multiple crimes is to be calculated. Florida Administrative

Code Rule 69B-211.042 provides in pertinent part:

(7) Classification of felony crimes.

(a) The Department makes a general

classification of felony crimes into three

classes: A, B an C, as listed in subsections

(21), (22) and (23) of this rule. The lists

refer only to such crimes when they are

felonies, since certain of the crimes could

be misdemeanors in some jurisdictions and

felonies in other jurisdictions.

* * *

(8) 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.

(a) Class A Crime. The applicant with not

be granted licensure until 15 years have

passed since the trigger date.

(b) Class B Crime. The applicant will not

be granted licensure until 7 years have

passed since the trigger date.

(c) Class C Crime. The applicant will not

be granted licensure until 5 years have

passed since the trigger date.

(9) Applicants with Multiple Crimes.

(a) The Department construes Sections

626.611 and 626.621, Florida Statutes, to

require that an applicant whose law

enforcement record includes multiple felony

crimes wait longer than those whose law

enforcement record includes only a single

felony crime before becoming eligible for

licensure in order assure that such

applicant's greater inability or

unwillingness to abide by the law has been

overcome. Therefore, the Department finds it

necessary that a longer waiting period be

utilized in such instances, before licensure

can be safely granted. Accordingly, where

the applicant has been found guilty or pled

guilty or nolo contendere to more than one

felony or to a felony and one or more

misdemeanors, . . . the Department shall add

5 years to the waiting period for each

additional felony or insurance-related

misdemeanor, . . .

(b) The additional periods are added to the

basic waiting period for the one most serious

crime, and the combined total waiting period

then runs from the trigger date of the most

recent misdemeanor or felony crime.

15. Aggravated assault is classified as a Class A felony.

Fla. Admin. Code R. 69B-211.042(21)(yy). Based on the

Pennsylvania felony alone, Petitioner's waiting period would be

15 years. Fla. Admin. Code R. 69B-211.042(8)(a). The plea of

nolo contendere in St. Johns County constitutes his second

felony, mandating an additional five years. Fla. Admin. Code R.

69B-211.042(9)(a).

16. The "trigger date" from which the waiting period would

begin is defined as the date on which an applicant was found

guilty, pled guilty, or pled nolo contendere to a crime, or where

that date is not ascertainable, the date of the charges or

indictment. Fla. Admin. Code R. 69B-211.041(11). Respondent's

most recent trigger date is the date he pled nolo contendere in

St. Johns County, i.e. , November 15, 2004. Because Rule 69B-

211.042(9)(b) requires that the combined total waiting period run

from the trigger date of the most recent crime, the waiting

period for Petitioner expires November 15, 2024.

17. Rule 69B-211.042(10) provides for certain mitigating

factors to be considered which could reduce the waiting period.

However, inasmuch as Petitioner did not present any evidence of

mitigation, these factors need not be considered.

18. Petitioner maintains that the Department should grant

his application for licensure because there are other convicted

felons who have received licensure. However, the Consent Orders

submitted as Petitioner's Composite Exhibit 1 are not

sufficiently similar to Petitioner's case to establish any sort

of precedent. For example, many of the consent orders involved

applicants who had committed Class C crimes or single crimes, or

the applicable waiting period was close to expiring at the time

of the settlement agreement. Moreover, it cannot be determined

from Petitioner's Composite Exhibit 1 whether mitigating factors

identified by rule may have been presented in support of the

entry of the Settlement Agreement. Here, both crimes were Class

C felonies; the waiting time extends several years into the

future; and no evidence was presented in support of mitigation.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Department of Financial Services enter a Final

Order denying Petitioner's application for licensure as a

resident company employee all lines adjuster, and establishing

that his waiting period in terms of eligibility expires

November 14, 2024.

DONE AND ENTERED this 27th day of May, 2010, in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of May, 2010.

ENDNOTE

1/ In discovery submitted to the Department and filed with the

Division, Petitioner included a written plea colloquy from

Pennsylvania, wherein he pleaded guilty to what appears to be

aggravated assault and possessing an instrument of crime. He

agrees to time served for the possession charge and five years of

probation for the aggravated assault charge. Neither the colloquy

nor any order accepting the guilty plea was entered into evidence.

Regardless, the result remains the same. Whether based upon the

original conviction or a subsequent plea of guilty, the Notice of

Denial is based in part upon the action in Pennsylvania emanating

from the charge of aggravated assault. Moreover, because there

was a subsequent felony charge, pursuant to Fla. Admin. Code R.

69B-211.042(9)(b), the waiting period runs from the St. Johns

County plea as opposed to the Pennsylvania action.

COPIES FURNISHED:

Robyn Blank Jackson, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0307

James Gregory Basara

1537 Chatham Court

St. Augustine, Florida 32092

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0307

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.