01-004271PL Department Of Insurance vs. Gary L. Koniz Status: Closed Recommended Order on Tuesday, April 23, 2002.

Summary: Department proved that Respondent pled guilty to felony DUI. Statute does not require intentional misstatement of information in order to impose penalty. Rules limit penalties that can be imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4271PL

)

GARY L. KONIZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, t his cause came on for hearing before

Stephen F. Dean, Administrative Law Judge, on February 27, 2002,

in Jacksonville, Florida.

APPEARANCES

For Petitioner: Matthew A. Nowels, Esquire

Department of Insurance

612 Larson Building

200 East Gaines Stre et

Tallahassee, Florida 32399 - 0333

For Respondent: Gary L. Koniz, pro se

9480 Princeton Square Boulevard, South

Apartment No. 815

Jacksonville, Florida 32256

STATEMENT OF THE ISSUES

Whether Respondent's licenses as a health insurance agent ,

a life and health insurance agent, and a life including variable

annuity agent should be suspended or revoked based on the

allegations set forth in the Department's Administrative

Complaint.

PRELIMINARY STATEMENT

On September 11, 2001, Petitioner Depar tment of Insurance

filed an Administrative Complaint against Respondent Gary L.

Koniz. The complaint alleged that Respondent failed to divulge

on his application for licensure dated September 30, 2000, that

he plead guilty in 1988 in County Court in and f or Ulster

County, New York, to operating a vehicle while under the

influence of alcohol, a felony. Respondent timely filed a

request for a formal proceeding conducted pursuant to Sections

120.569 and 120.57(1), Florida Statutes. The matter was

referred t o the Division of Administrative Hearings and a formal

hearing was scheduled for January 31, 2002. Pursuant to

Respondent's request for a continuance, the hearing was

re - scheduled and held on February 27, 2002.

Petitioner's Exhibits 1 - 3 were admitt ed into evidence.

Respondent submitted various documents into evidence, all of

which Petitioner had seen previously.

Respondent testified on his own behalf and was subject to

cross - examination. Petitioner did not call any witnesses.

Petitioner submitt ed a Proposed Recommended Order that was read

and considered; Respondent did not file any documents post -

hearing.

FINDINGS OF FACT

1. Respondent Gary L. Koniz (Respondent) is currently

licensed by the Department as a health insurance (2 - 40) agent, a

life and health insurance (2 - 18) agent, and a life including

variable annuity (2 - 14) agent.

2. On August 17, 1988, Respondent plead guilty to

operating a vehicle while under the influence of alcohol (DUI),

a felony, in the County Court in and for Ulster Coun ty, New

York, Case No. 88 - 57. Respondent was sentenced to five years'

probation, license revocation, and payment of a fine.

3. On or about September 30, 2000, Respondent submitted an

application to the Department for licensure as health agent, a

life an d health agent, and a life including variable annuity

agent, on which he was asked the following two questions:

a) Have you ever been convicted, found

guilty, or pleaded guilty or nolo contendere

to a felony under the laws of any

municipality, county, sta te, territory, or

country, whether or not adjudication was

withheld or a judgment of conviction was

entered?

b) Have you ever been convicted, found

guilty, or pleaded guilty or nolo contendere

to a crime punishable by imprisonment of one

year or more und er the laws of any

municipality, county, state, territory, or

country, whether or not adjudication was

withheld or a judgment of conviction was

entered?

Respondent answered each of the aforementioned questions, "no."

4. On the application dated Septembe r 30, 2000, Respondent

signed and swore to the statement that read:

Under penalty of perjury, I declare that I

have read the foregoing application for

licensure, related information and related

attachments, and that the facts as stated in

it are true. I u nderstand that

misrepresentation of any fact required to be

disclosed through this application is a

violation of the Florida Insurance and

Administrative Code and may result in the

denial of my application and/or the

revocation of my insurance license.

5 . Respondent testified at hearing. Respondent made a

court appearance at which he entered a plea as part of a plea

bargain to a misdemeanor. He did not comply with one of the

conditions and the matter was called back up before the court.

At this second hearing, the court asked how he plead.

Respondent indicated he had already plead. The court took this

response as a plea to the DUI felony and imposed the

aforementioned penalties. Respondent did not knowingly answer

the questions on the application fo r licensure incorrectly.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject mater of,

these proceedings.

7. The standard of evidence to discipline an insurance

licensee is that of clear a nd convincing evidence. See

Farris v. Turlington , 510 So. 2d 292 (Fla. 1987).

8. Section 626.611, Florida Statutes, states in pertinent

part:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, title agency, solicitor,

adjuster, customer representative, service

representative, or managing general agent,

and it shall suspend or revoke the

eligibility to hold a license or appointment

of any such person, if it f inds that as to

the applicant, licensee, or appointee any

one or more of the following applicable

grounds exist:

(1) Lack of one or more of the

qualifications for the license or

appointment as specified in this code.

(2) Material misstatement,

misreprese ntation, or fraud in obtaining the

license or appointment or in attempting to

obtain the license or appointment.

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

* * *

(14) Having been found gu ilty 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 turpitu de,

without regard to whether a judgment of

conviction has been entered by the court

having jurisdiction of such cases.

9. Section 626.621, Florida Statutes, provides in

pertinent part:

The department may, in its discretion, deny

an application for, su spend, revoke, or

refuse to renew or continue the license or

appointment of any applicant, agent,

solicitor, adjuster, customer

representative, service representative, or

managing general agent, and it may suspend

or revoke the eligibility to hold a licens e

or appointment of any such person, if it

finds that as to the applicant, licensee, or

appointee any one or more of the following

applicable grounds exist under circumstances

for which such denial, suspension,

revocation, or refusal is not mandatory

under s. 626.611:

(1) Any cause for which issuance of the

license or appointment could have been

refused had it then existed and been known

to the department.

* * *

(8) 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, without regard to whether a

judgment of conviction has been entered by

the court having jur isdiction of such cases.

10. As to Section 626.621, Florida Statutes, Respondent's

plea of guilty to DUI is a felony. An applicant's prior

criminal history is material to the Department's decision to

license the applicant. Thus, Respondent's failure t o disclose

his prior felony plea was a material misstatement of fact

contrary to Section 626.621(1), Florida Statutes. His felony

plea was also a violation of Section 626.621(8), Florida

Statutes.

11. Respondent asserts that he did not knowingly answ er

the questions on the application for licensure incorrectly. He

states that he believed he had entered a plea of guilty to a

misdemeanor, rather than a felony, and, therefore, answered the

questions on his application for licensure correctly to the best

of his knowledge.

12. Sections 626.611(2) and 626.621(1) and (8), Florida

Statutes, do not require Respondent to have knowingly answered

the questions on his application for licensure incorrectly. The

statutes state than any "material misstatement or

m isrepresentation" are grounds for suspension or revocation of

Respondent's licenses. This is stated in the disjunctive;

intent is not an element. Indeed, the knowing failure to

disclose is addressed separately in the statute by the phrase,

"fraud in obta ining the license," which follows the terms

"misstatements" or "misrepresentation". Further, entering a

plea to a felony is a separate, distinct basis for discipline

which also may be revocation or suspension.

13. It is impossible for the Department to k now what each

applicant knows or believes at the time of application for

licensure. The inclusion of the phrase "material misstatement"

allows the Department to avoid having to make impossible

determinations of what was and was not known to the applicant.

If the applicant misstates his or her criminal background, even

unknowingly, he or she is held liable for that misstatement.

14. The Department has presented clear and convincing

evidence showing that Respondent entered a guilty plea in 1988

to a felon y charge and failed to disclose said plea on his

application for licensure. While Respondent's answers on the

application may have been truthful to the best of his knowledge,

his answers still represent material misstatements and he

entered a plea to a fe lony.

15. Pursuant to Rule 4 - 231.080, Florida Administrative

Code, the penalty for violation of Section 626.611(2), Florida

Statutes, is a three - month suspension. Pursuant to Rule

4 - 231.090, the penalty for violations of Section 626.621(1),

Flo rida Statutes, is three months and for violation of Section

626.621(18) 12 months. See Rule 4 - 231.150, Florida

Administrative Code.

16. Pursuant to Rule 4 - 231.040, Florida Administrative

Code, the total penalty could be an 18 - month suspension.

17. Pursuant to Rule 4 - 231.160, Florida Administrative

Code, the Department shall apply aggravating and mitigating

factors to the Total Penalty in reaching the Final Penalty. No

aggravating or mitigating factors apply.

RECOMMENDATION

Based on the foregoi ng Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Insurance enter a final

order finding Respondent Gary L. Koniz guilty of violating

Sections 626.611 and 626.621, Florida Statutes, and suspending

his licensure as a heal th insurance agent, a life and health

insurance agent, and a life including variable annuity agent for

a period of up to 18 months.

DONE AND ENTERED this 23rd day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

STE PHEN 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 t he

Division of Administrative Hearings

this 23rd day of April, 2002.

COPIES FURNISHED :

Gary L. Koniz

9480 Princeton Square Boulevard, South

Apartment 815

Jacksonville, Florida 32256

Matthew A. Nowels, Esquire

Department of Insurance

612 Larson Build ing

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner

Department of Insurance

The Capitol, Plaza Level 02

Tallahassee, Florida 32399 - 0300

Mark Casteel, General Counsel

Department of In surance

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.