02-004788PL Department Of Insurance vs. James E. Loper Status: Closed Recommended Order on Monday, April 7, 2003.

Summary: Insurance agent`s license revoked for failure to disclose criminal background on application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4788PL

)

JAMES E. LOPER, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in th is case

on February 12, 2003, by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida, before Florence Snyder

Rivas, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: R. Terry But ler, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: James E. Loper, pro se

18217 Northwest 61st Place

Miami, Florida 33015

STATEMENT OF THE ISSUE

At issu e is whether Respondent’s license as insurance agent

should be revoked for providing false answers under oath to

questions regarding his criminal history on his application for

licensure.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 20, 2002,

Petitioner, the Department of Insurance and Treasurer, now the

Department of Financial Services, filed a one - count complaint

against Respondent, a licensed Florida insurance agent, alleging

that he had falsely answered questions concerning his crimi nal

history on his application for licensure dated March 28, 2000.

Respondent timely exercised his right to an administrative

hearing.

At hearing, Respondent testified on his own behalf.

Petitioner offered exhibits 1 through 9 as evidence, which were

a dmitted without objection.

A transcript of the final hearing was filed on February 27,

2003. Petitioner timely filed a proposed recommended order.

FINDINGS OF FACT

1. On March 28, 2000, Respondent executed under oath an

application for licensure. Incl uded on the application were the

following questions:

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 a

judgment of conviction has been entered?

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, territo ry,

or country, whether or not a judgment of

conviction has been entered?

2. As to both of these questions, Respondent answered --

falsely -- "No." Respondent was subsequently licensed as an

insurance agent. Had he accurately answered these questions,

his application for licensure would have been denied.

3. By way of defense, Respondent contends that he was

misled by comments made by the trial judge who sentenced him.

Respondent testified that at the time he executed his

application, he believed, based u pon what the judge had said at

sentencing, that the charges to which Respondent had pleaded no

contest did not constitute a felony and did not carry a sentence

of greater than one year in prison.

4. A transcript of Respondent's sentencing would provide a

verbatim record of what the judge said, and would afford the

fact finder an opportunity to form an opinion as to whether

Respondent could have reasonably believed that he could

appropriately answer "no" to the above - quoted questions.

5. All criminal sente ncing hearings in Florida are, as a

matter of course, attended by a court reporter. However,

Respondent did not introduce a transcript of his sentencing into

evidence in this hearing, nor did he provide an explanation as

to why a transcript could not be m ade available. Neither did

Respondent offer any testimony other than his own in support of

his claim that he had been misled by the sentencing judge as to

the nature of the charges to which he plead and/or the maximum

sentence permitted under the law. Re spondent's own memory as to

the details of his crime and punishment was very poor.

6. Thus, there is no factual basis upon which it can be

concluded that Respondent's failure to accurately respond to

questions regarding his criminal history may be attribu ted to

the failure of the judge who sentenced him to clearly

communicate, rather than Respondent's own negligence in

responding to the questions concerning his criminal background.

7. It is noted on the face of the application that it is

the applicant's b urden to provide accurate information, and the

failure to do so will result in a denial of licensure.

8. Even if the evidence established that Respondent's

misstatements were made in good faith, the outcome of this

proceeding would be the same. As noted above, under Florida

law, a "yes" answer to either of the above - noted questions would

have required the state to deny Respondent's application for

licensure.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction of the subject mat ter and the parties to this

proceeding pursuant to Section 120.57(1), Florida Statutes.

10. Petitioner is the agency of the State of Florida

vested with the statutory authority to administer the

disciplinary provisions of Chapter 626, Florida Statutes.

1 1. Petitioner has the burden of proving its allegations

by clear and convincing evidence. See Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987). In this case, Respondent concedes that

his answers to questions regarding his criminal background were

inaccu rate.

12. Subsections 626.611(1), (7), and (14), Florida

Statutes, provide, in pertinent part:

. . . The department shall deny an

application for, suspend, revoke, or refuse

to renew or continue the license or

appointment of any . . . agent, . . . an d it

shall suspend or revoke the eligibility to

hold a license 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:

(1) Lack of one or more of the

qual ifications for the license or

appointment as specified in this code.

* * *

(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 con tendere 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. . . .

13. Under Florida law, felons are not eligible for

licensure as insurance agents. In Natelson v. Dep artment of

Insurance , 454 So. 2d 31, 32 (Fla. 1st DCA 1984), the court

said:

Insurance is a business greatly affected by

the public trust, and the holder of an agent’s

license stands in a fiduciary relationship to

both the client and insurance company.

For this reason, the state had a legitimate interest in denying

licensure to persons who have pled guilty to or been convicted

of felonies.

14. The evidence established that Respondent was licensed

in error, and the error should now be rectified.

RECOMM ENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Financial

Services enter a final order revoking Respondent's license and

eligibility for licensure.

DONE AND ENTERED this 7th day of April , 2003, in

Tallahassee, Leon County, Florida.

___________________________________

FLORENCE SNYDER RIVAS

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 7th day of April, 2003.

COPIES FURNISHED :

R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines S treet

Tallahassee, Florida 32399 - 0333

James E. Loper

4105 North University Drive

Number J - 206

Sunrise, Florida 33351

James E. Loper

18217 Northwest 61st Place

Miami, Florida 33015

Honorable Tom Gallagher

Treasurer and Chief Financial Officer

Departm ent 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

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.