00-004543PL Department Of Insurance vs. Sheila W. Collins Status: Closed Recommended Order on Monday, January 29, 2001.

Summary: Respondent`s failure to disclose felony conviction is ground to discipline license, but mitigation evidence supports shortening of disqualification time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 00-4543PL

)

SHEILA W. COLLINS, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

A hearing was held in this case by video teleconference,

on January 11, 2001, before Arnold H. Pollock, an

Administrative Law Judge with the Division of Administrative

Hearings. The undersigned and counsel for Petitioner appeared

from Tallahassee, and Respondent and her counsel appeared from

Tampa.

APPEARANCES

For Petitioner: Anoush A. Arakalian, Esquire

Department of Insurance

Division of Legal Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

For Respondent: Dirk R. Weed, Esquire

4505 North Armenia Avenue

Ta mpa, Florida 33603

STATEMENT OF 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.

PRELIMINARY MATTERS

By Administrative Complaint dated October 11, 2000, the

Honorable Bill Nelson, Insurance Commissioner, charged

Respondent with making false and material misrepresentations

in her application for licensure by the Department of

Insurance, in violation of Section 642.041(1), Florida

Statutes. Respondent disputed the allegations of material

fact and demanded formal hearing, and this hearing ensued.

Petitioner presented no testimony and relied exclusively

on documentation in support of the allegations. Consistent

therewith, counsel for Petitioner introduced Petitioner's

Exhibits 1 and 2. Respondent testified in her own behalf, but

offered no documentation.

A transcript of the proceedings was not provided.

Counsel for Petitioner and Respondent both submitted matters

in writing after hearing, which were carefully considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. 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?

3. Respondent checked the "No" block in answer to that

question.

4. 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?

5. Respondent checked the "No" block in answer to that

question as well.

6. 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.

7. 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.

8. 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.

9. 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.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. Section 120.57(1), Florida Statutes.

11. The Department seeks to discipline Respondent's

license as a legal expense agent for her failure to

acknowledge her prior felony conviction for worthless checks

on her application for licensure. If proven, this failure

would constitute a violation of Section 642.041, Florida

Statutes. Petitioner has the burden to establish its

allegations by clear and convincing evidence. Department of

Banking and Finance vs. Osborne Stern and Company , 670 So. 2d

932, Fla. 1998.

12. Section 642.041, Florida Statutes, authorizes the

Department to discipline the license of, or deny a license to,

any sales representative, if it finds the representative has

made a material misstatement, misrepresentation, or is guilty

of fraud in obtaining a license; has demonstrated a lack of

fitness or trustworthiness to engage in the business of legal

expense insurance; or, has willfully failed to comply with, or

violated, any proper order or rule of the Department.

13. Section 642.043, Florida Statutes, also authorizes

the Department to discipline the license of, or deny a license

to, any sales representative who has committed any action for

which granting a license could have been refused at the time

of application; or has been found guilty of or have plead

guilty or nolo contendere to a felony or a crime punishable by

imprisonment for one year or more, regardless of whether a

judgment of conviction has been entered.

14. Rule 4-211.03(8), Florida Administrative Code, sets

forth applicable waiting periods for licensure after the

commission of a felony. In the case of those who have

committed a Class "B" crime, the applicant will not be granted

licensure until at least ten years have passed since the

trigger date.

15. Under the rules of the Department applicable at the

time of Respondent's application for licensure, Rule 4-

211.031, Florida Administrative Code, the crime of Obtaining

Property by Worthless Check, the crime to which Respondent

plead nolo contendere on May 26, 1998, is a crime involving

moral turpitude and is classified as a "Class B" crime for

determining the applicable waiting period of licensure after

plea.

16. The Department's policy of matters on employment and

licensure, Rule 4-211.031(4), at Subsection (4)(a), Florida

Administrative Code, states that all matters part of an

applicant's law enforcement record are significant and

material, and the omission of any part of that record is

deemed a material misrepresentation or material misstatement

of that record.

17. Rule 4-211.031(4)(c)1, Florida Administrative Code,

requires, in the computation of time of ineligibility as the

result of a Class "B" crime, that one year be added to the

ten-year waiting period where the trigger date was more than

ten years. It the trigger date was less than ten years prior,

two years must be added.

18. Therefore, based on her plea of nolo contendere to a

Class "B" crime, Respondent was not, at the time her license

was issued, eligible for licensure, and her existing license

should be revoked. She will not be eligible for licensure

until May 25, 2010, which is twelve years from the trigger

date, the date of the court action. However, Petitioner

contends, and it appears appropriate, that Respondent should

be given a credit of two years for making restitution, and a

further credit of five additional years for the loss of her

civil rights, for a total mitigation credit of seven years.

Applying the mitigation credit makes Respondent eligible for

licensure on May 25, 2003.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

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.