02-003763 Juan Ramon Leal vs. Department Of Insurance Status: Closed Recommended Order on Thursday, January 23, 2003.

Summary: Petitioner`s isolated incident of criminal behavior does not constitute an act of moral turpitude and he has demonstrated trustworthiness to be licensed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUAN RAMON LEAL, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3763

)

DEPARTMENT OF INSURANCE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case by video teleconference on December 6, 2002, with the

Petitioner appearing from Miami, Florida, before J. D.

Parrish, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Eugene J. LaNeve, Esquire

Law Offices of Ainslee R. Ferdie

717 Ponce de Leon Boulevard, Suite 215

Coral Gables, Florida 33134

For Respondent: Ladasiah Jackson, Esquire

Florida Department of Insurance

Division of Legal Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether the Petitioner, Juan Ramon Leal, is entitled to

be licen sed as resident legal expense sales representative.

PRELIMINARY STATEMENT

On June 27, 2002, the Respondent, Department of Insurance

(Respondent or Department), issued a notice to the Petitioner

that his application for licensure as a resident legal expense

sales representative was being denied based upon his criminal

history. The Petitioner timely challenged that denial and

filed an election of rights that sought an administrative

review of the Department's decision. The matter was then

forwarded to the D ivision of Administrative Hearings for

formal proceedings on September 25, 2002.

At the hearing conducted on December 6, 2002, the

Petitioner testified in his own behalf and presented

additional testimony from Nicolo Bonanno. The Petitioner's

Exhibits 1 - 7 were admitted by stipulation of the parties. The

Respondent offered testimony from Detective Ivan Cabrera and

Hazel Mohammed. The Respondent's Exhibits 1 - 8 were also

received by stipulation.

The Transcript of the proceeding was filed with the

Division o f Administrative Hearings on December 16, 2002.

Both parties timely filed Proposed Recommended Orders that

have been fully considered in the preparation of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this

case, the Respondent is the state agency charged with the

responsibility of regulating persons seeking licenses to

become resident legal expense sales representatives. As such

the Respondent appropriately received and considered the

application for licensure submitted by the Petitioner on or

about April 3, 2002.

2. On June 27, 2002, the Respondent issued its decision

regarding the Petitioner's application for licensure. Such

decision denied Petitioner's request based upon his criminal

history and the short amount of time that had elapsed between

the alleged criminal activity and the application for

licensure.

3. On July 6, 2000, when he was 20 years of age, the

Petitioner was arrested for possession of a controlled

substance, unauthorized possession of a driver's licens e, and

carrying a concealed weapon.

4. As to the controlled substance charge, at the time of

the arrest, the Petitioner was delivering to an individual,

who was a confidential informant for the police, 400 tablets

of a drug commonly known as ecstasy. The Petitioner knew that

the package contained an illegal substance and that he was

committing an illegal act.

5. As to the charge of possessing an unauthorized

driver's license, the Petitioner held fake identification so

that when carded at dance clubs he c ould enter with his older

girlfriend. There is no evidence that the fake license was

used for any other purpose.

6. As to the charge of possession of a concealed weapon,

the Petitioner was arrested and his vehicle was thoroughly

searched. The "concealed weapon" was a hunting knife under

the seat or in the crack of the seats. The knife was not

presented in the course of any of the activities cited by the

police.

7. In fact, the arresting officer described the

Petitioner as "sincerely remorseful" and "co operative."

Subsequent to his arrest the Petitioner attempted to assist

the police but proved unsuccessful.

8. On May 10, 2001, the Petitioner pled nolo contendere

to the possession charges. As he had no prior criminal

record, adjudication of guilt was withheld and he was placed

on probation.

9. The Petitioner successfully completed all

requirements of his probation. Thereafter, on March 14, 2002,

the probation was terminated.

10. On April 3, 2002, within the month of his probation

being completed, Pe titioner applied for the license at issue

in this proceeding.

11. Because the Department denied the license, the

Petitioner sought the instant administrative review of the

denial and sought relief from the criminal court having

jurisdiction over his probation and record.

12. To that end, Petitioner obtained an Order to Seal

his criminal records. This order was entered on August 15,

2002. Had the Petitioner waited until after that date to

apply for licensure, the pertinent criminal records would have

bee n under seal and therefore unavailable for review.

13. It is the Department's position that the Petitioner

lacks fitness and trustworthiness to hold the license based

upon the nature of the criminal activity and the recentness in

time to the application for licensure.

14. The Petitioner's employer, Nicolo Bonanno, testified

that the Petitioner is a trustworthy employee, that he has had

business dealings with the Petitioner for approximately 3

years, and that he has no hesitation in supporting his

licensur e. Mr. Bonanno is himself a licensee through the

Department.

15. The arresting officer expressed complimentary

statements regarding the Petitioner including his demeanor

during and subsequent to the arrest.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. Section 120.57, Florida Statutes.

17. As the proponent of the affirmative of the issue,

the Petitioner, as applicant for licensure, bears the burden

of pro of in this cause to establish he is entitled to the

license sought. See Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977);

Florida Department of Transportation v. J.W.C. Co. , 396 So. 2d

778, 788 (Fla. 1st DCA 1981); McDonald v. Department of

Professional Regulation, Board of Pilot Commissioners , 582 So.

2d 660, 670 (Fla. 1st DCA 1991).

18. Section 642.041, Florida Statutes, outlines the

circumstances wherein the Department, by statute, must deny a

license. The provisions, known in this record as the

"mandatory" sections, provide, in pertinent part that the

following constitutes grounds for compulsory refusal to

license any sales representative:

Having been found guilty of, or having pled

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 any state thereof or under

the law of any country, whether or not

judgment of conviction has been entered.

19. In contrast, Section 6 42.043, Florida Statutes,

outlines the "discretionary" provisions.

20. It is the Department's legal position that the

mandatory provisions requiring denial of the license are

applicable to this case. Moreover, the Department maintains

that the Petitioner lacks fitness and trustworthiness to

engage in the business of legal expense insurance.

21. As to the Department's contentions, it is undisputed

that the Petitioner was charged with possession of the

controlled substance. He admitted the possession, a dmitted

that he knew it was illegal, and admitted that he was

delivering the package for and presumably to a friend. The

Petitioner expressed sincere remorse for the conduct that even

the arresting officer deemed credible. There is no evidence

that the Petitioner was an experienced drug dealer or that

this was anything more than an isolated incident of very poor

judgment. Moreover, his employer who has known the Petitioner

for approximately 3 years claims that the Petitioner is

trustworthy.

22. Additi onally, the Petitioner timely and successfully

completed all conditions of his probation. The circuit court

then granted the Petitioner's request to seal to the criminal

record. The Petitioner was not adjudicated guilty of any

criminal offense; and based upon the circumstances of this

case, the Petitioner did not demonstrate behavior constituting

moral turpitude.

23. As such, it is concluded that the Petitioner has met

his burden of proof and is entitled to the license sought.

RECOMMENDATION

Based on th e foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Insurance

enter a final order granting the license sought by the

Petitioner.

DONE AND ENTERED this 23rd day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 23rd day of January, 2003

COPIES FURNISHED :

Honorable Tom Gall agher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Mark Casteel, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Eugene J. LaNeve, Esquire

717 Ponce de Leon Boulevard

Suite 215

Coral Gables, Florida 33134

Ladasiah Jackson, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.