03-002708 David N. Weiker, Sr. vs. Department Of Financial Services Status: Closed Recommended Order on Monday, December 22, 2003.

Summary: Petitioner, who had two disciplinary actions against his real estate license, lacked fitness or trustworthiness to hold an insurance agent`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID N. WEIKER, SR., )

)

Petitioner, )

)

vs. ) Case No. 03 - 2708

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursu ant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on October 21, 2003, in Orlando, Florida.

APPEARANCES

For Petitioner: David N. Weiker , Sr., pro se

1506 Elfstone Court

Casselberry, Florida 32707

For Respondent: R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0399

STATEMENT OF THE ISSUE

Whether Petitioner should be licensed as a life, variable

annuity and health agent by the Department of Financial

Services?

PRELIMINARY STATEMENT

On August 29, 2002, Respondent, Depar tment of Financial

Services, advised Petitioner, David N. Weiker, Sr., by a Notice

of Denial that his license application as a life, variable

annuity and health agent had been denied, listing the factual

and statutory basis for the denial. On September 9, 2002,

Petitioner responded by disputing material facts in the Notice

of Denial and requesting an administrative hearing.

On July 24, 2003, Respondent forwarded the Notice of Denial

and Petitioner's request for an administrative hearing to the

Division of Administrative Hearings, requesting assignment of an

Administrative Law Judge to consider the matter. On July 24,

2003, an Initial Order was sent to both parties.

On July 31, 2003, the case was scheduled for final hearing

in Orlando, Florida, on September 16, 2003. On September 10,

2003, the parties jointly moved to continue the final hearing.

In response to the Joint Motion to Continue, an order was

entered rescheduling the final hearing for October 21, 2003. On

September 25, 2003, Respondent filed a S econd Amended Motion to

Amend Notice of Denial; this motion was granted on October 7,

2003.

The final hearing took place as rescheduled on October 21,

2003. Petitioner testified and offered six exhibits, five of

which were admitted into evidence and marke d Petitioner's

Exhibits 1 through 5. Respondent offered twelve exhibits into

evidence; all were admitted and marked Respondent's Exhibits 1

through 12.

On November 17, 2003, Respondent moved to extend the time

for filing proposed recommended orders as the transcript had not

yet been filed. This motion was granted extending the time for

filing proposed recommended orders until December 10, 2003. The

hearing Transcript was filed on November 20, 2003. Respondent

filed a Proposed Recommended Order which was considered by the

undersigned Administrative Law Judge.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petitioner is 51 years old; has Associate of Arts

degrees from Seminole Community College, Sanford, Florida, and

Davenport University, Grand Rapids, Michigan; will soon acquire

a bachelor of business administration degree from Belhaven

College; and is applying for a doctoral program at the

University of Central Flori da.

2. Petitioner holds a real estate sales associate license

issued by the Department of Business and Professional

Regulation, Division of Real Estate. The effective date of the

license is September 29, 2003; it will expire on September 30,

2005.

3. On November 28, 2001, Petitioner applied to Respondent

for a license classified as a "life and variable annuity and

health insurance agent." One of the screening questions on the

license application was the following: "[H]ave you ever had any

professional license subjected to any of the following actions

by any state agency or public authority in any jurisdiction?"

In response, Petitioner circled "Yes." The screening question

was then followed by the following "actions": suspension,

revocation, placed on probation, administrative fine or penalty

levied, cease and desist order entered. In response, Petitioner

circled "suspension."

4. On July 17, 1997, a Final Order was entered in

Department of Business and Professional Regulation, Division of

Real Estate v. David Nelson Weiker , Case No. 95 - 85173, which

reads, in part, as follows:

. . . the Commission finds the Respondent

guilty of violating ss 475.25(1)(c) and

475.42(1)(j), Florida Statutes, as charged

in the Administrative Complaint. Therefore

the Commi ssion ORDERS that the license of

David Nelson Weiker be suspended until the

liens are removed. At the conclusion of the

period of suspension, the Respondent is

directed to contact the Records Section of

the Division of Real Estate . . . to secure

proper f orms for reinstatement of

Respondent's suspended license. The

Commission further ORDERS that the

Respondent pay a $1000 administrative fine

and investigative costs of $768 within

30 days of the filing date of this order or

the Respondent's license shall be suspended

until such time as the fine and costs are

paid in full.

5. In Weiker , Case No. 95 - 85173, Petitioner, David N.

Weiker, Sr., initially requested a formal hearing, then failed

to respond to a request for admissions. As a result, he

admitted be ing a licensed real estate salesperson who, as an

employee of a builder, Mercedes Homes, Inc., filed 14 liens in a

total amount of $23,301 against homes owned by Mercedes Homes,

Inc., in an attempt to collect sales commissions he deemed he

was owed.

6. Th e administrative fine of $1,000, in Weiker , Case

No. 95 - 85173, was paid by a check dated August 5, 1998, drawn on

the account of David S. Piercefield, P.A.

7. On August 13, 1998, an Amended Final Order was entered

in Department of Business and Profession al Regulation, Division

of Real Estate v. David Nelson Weiker , Case No. 96 - 83238 (DOAH

Case No. 97 - 4742), which reads, in part, as follows:

. . . the Commission finds the Respondent

guilty of violating s.475.25(1)(b) and (c),

Florida Statutes, as charged in the

Administrative Complaint. The Florida Real

Estate Commission therefore ORDERS that the

Respondent pay a $1,000.00 administrative

fine. . . . Therefore the Commission ORDERS

that the Respondent be placed on probation

for a period of ninety days . . .

8. In Weiker , Case No. 96 - 83238 (DOAH Case No. 97 - 4742),

the Real Estate Commission adopted the Recommended Order of the

Administrative Law Judge. In that Recommended Order, the

Administrative Law Judge found that "he [Weiker] furthered a

scheme of m isrepresentation, false promises, and dishonest

dealing."

9. The administrative fine of $1,000, in Weiker , Case

No. 96 - 83238 (DOAH Case No. 97 - 4742), was paid by a SouthTrust

Bank check dated October 14, 2003. The remitter was Irene L.

Weiker.

10. On s everal occasions, in correspondence with

representatives of Respondent, and while testifying at the final

hearing, Petitioner testified that his real estate license had

not been suspended. He also maintained, without substantive

evidence or reasonable exp lanation, that the two administrative

fines had been paid several times or by the wrong individuals.

His attempts to explain the facts and circumstances of the two

administrative actions disciplining his real estate license were

unreasonable and not credi ble.

CONCLUSIONS OF LAW

11. Respondent has jurisdiction over the licensing of

agents pursuant to Chapter 626, Florida Statutes (2003).

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

procee dings. § 120.57(1), Fla. Stat. (2003).

13. As an applicant for a license, Petitioner bears the

ultimate burden of proving entitlement to the license.

Department of Banking and Finance v. Osborne Stern and Company ,

670 So. 2d 932, 934 (Fla. 1996); Florid a Department of Trans. v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

14. Respondent has the discretion to determine an

applicant's fitness and trustworthiness to engage in the

business of insurance. Natelson v. Department of Insurance , 454

So. 2d 31 (Fla. 1st DCA 1984).

15. Section 626.611, Florida Statutes (2002), states, in

pertinent part:

The department shall deny an 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:

(1) Lack of one or more of the

qualifications for the license or

appointment as specified in this

code.

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

16. Section 626.831(1), Florida Statutes (2002), states,

in part, that:

The department shall not grant or issue a

license as health agent to any individual

found by it to be untrustworthy or

incompetent . . .

17. Considering Petitioner's convoluted explanations of

the attendant circumstances of the two disciplinary actions

against his real estate license, together with the remainder of

his testimony, which wholly lacks credibility, Petitioner failed

to demonstrate the fitness and trustwor thiness expected of a

licensee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent's decision to deny Petitioner's

application for a life, variable annuity and health insurance

agent license is well - founded; Petitioner's license application

should be denied.

DONE AND ENTERED this 22nd day of December, 2003, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 22nd day of December , 2003.

COPIES FURNISHED :

R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0399

David N. Weiker, Sr.

1506 Elfstone Court

Casselberry, Florida 32707

Honorable Tom Gallagher

Chief Financial Offi cer

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

NOTICE OF RIGHT TO SUBMIT EXCEP TIONS

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.