03-002859RX
Guido Perou vs.
Department Of Financial Services
Status: Closed
DOAH Final Order on Friday, November 7, 2003.
DOAH Final Order on Friday, November 7, 2003.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8GUIDO PEROU, )
11)
12Petitioner, )
14)
15vs. ) Case No. 03 - 2859RX
22)
23DEPARTMENT OF FINANCIAL )
27SERVICES, )
29)
30Respondent. )
32______________________________)
33FINAL ORDER
35Robert E. Me ale, Administrative Law Judge of the Division
45of Administrative Hearings, conducted the final hearing in
53Tallahassee, Florida, on September 22, 2003. The sole witness
62testified by videoconference from Miami where the court reporter
71was located. The Admin istrative Law Judge and attorneys were in
82Tallahassee.
83APPEARANCES
84For Petitioner: Steven M. Malono
89Pennington, Moore, Wilkinson,
92Bell & Dunbar, P.A.
96Post Office Box 10095
100215 South Monroe Street, Second Floor
106Tallahassee, Florida 32301
109For Respondent: S. Marc Herskovitz
114Terry Butler
116Department of Financial Services
120Division of Legal Services
124612 Larson Building
127200 East Gaines Street
131Tallahassee, Florida 32399 - 4260
136STATEMENT OF THE ISSUE
140The issue is whether Rule 4 - 211.042(8), Florida
149Administrative Code, co ntravenes Section 626.641(2), Florida
156Statutes, by imposing a waiting period in excess of two years
167for licensee whose license has been revoked to reapply for
177licensure.
178PRELIMINARY STATEMENT
180By Petition for a Determination of the Invalidity of an
190Existin g Rule filed August 5, 2003, Petitioner alleged that Rule
2014 - 211.042(8), Florida Administrative Code, is an invalid
210exercise of delegated legislative authority because the rule
"218enlarges, modifies and contravenes" the specific provisions of
226Section 626.641, Florida Statutes (2002), which is purportedly
234implemented by the rule. Specifically, the petition alleges
242that the rule imposes a 15 - year waiting period for reapplication
254following the commission of a specified felony, but the statute
264requires only a two - year waiting period. The petition also
275states an additional issue is whether the rule is arbitrary or
286capricious.
287Respondent's Pre - Hearing Stipulation, which was filed
295September 17, 2003, raises the issue of whether Petitioner has
305standing to maintain t his rule challenge.
312At the hearing, Petitioner called one witness, himself. He
321testified solely on the issue of standing. Petitioner offered
330into evidence four exhibits: Petitioner Exhibits 1 - 4.
339Respondent called no witnesses and offered into evidence three
348exhibits: Respondent Exhibits 1 - 3. All exhibits were admitted.
358The court reporter filed the transcript on September 26,
3672003. The parties filed their proposed final orders on
376October 31, 2003.
379FINDINGS OF FACT
3821. From 1984 through November 28, 2 000, Petitioner was
392licensed as a general lines insurance agent.
3992. On May 15, 2000, the Miami - Dade County State Attorney
411charged Petitioner with a felony violation of Section
419817.034(3)(d), Florida Statutes (2003). The information alleged
426that Petitione r had participated in an organized scheme to
436defraud a person of less than $20,000 from December 1, 1997,
448through January 31, 1999. (All references to Sections are to
458Florida Statutes (2003), unless the context indicates
465otherwise.)
4663. On September 14, 200 0, Petitioner entered a plea of no
478contest to the charge, and the court entered a finding of guilt,
490but withheld adjudication. The court ordered that Petitioner
498remain on probation and pay court costs. The period of
508probation was specified in a separate order that is not part of
520the present record.
5234. On the same day, Petitioner entered into a Settlement
533Stipulation for Consent Order with Respondent. The settlement
541stipulation acknowledges that Respondent has alleged that
548Petitioner misappropriated homeow ners and flood insurance
555premiums and uttered forged insurance documents. The settlement
563stipulation memorializes Petitioner's "voluntary return" to
569Respondent of all licenses previously issued to him by
578Respondent and Petitioner's understanding that the return of the
587licenses has the same effect as a revocation of these licenses,
598pursuant to Section 626.641, Florida Statutes (2000).
6055. The final paragraph of the settlement stipulation
613states:
614No person whose licenses, appointments and
620eligibility for licen sure have been revoked
627by the Department shall have the right to
635apply for another license or appointment
641under the Insurance Code within two (2)
648years from the date of the Consent Order to
657be issued in this case. The Department
664shall not, however, grant a new license or
672appointment or reinstate eligibility to hold
678such license or appointment if it finds that
686the circumstance or circumstances for which
692the eligibility was revoked or for which the
700previous license or appointment was revoked
706still exist or a re likely to recur.
7146. After the Treasurer and Insurance Commissioner approved
722the settlement stipulation, Respondent issued a Consent Order,
730which incorporates the settlement stipulation and revokes
737Petitioner's "licensure and eligibility for licensure as an
745insurance agent . . . pursuant to Section 626.641(2), Florida
755Statutes (2000)." The final paragraph of the Consent Order,
764which was filed November 28, 2000, contains a paragraph
773identical to the final paragraph, quoted above, of the
782settlement stipula tion, except for minor rewording and the
791addition of a citation in the second sentence to Section
801626.641(1), Florida Statutes (2000).
8057. Prior to the expiration of two years following the
815issuance of the Consent Order, the Legislature passed Chapter
8242002 - 2 06, Laws of Florida. Taking effect on October 1, 2002,
837Section 11 adds Section 626.207 which provides:
844(1) The department shall adopt rules
850establishing specific waiting periods for
855applicants to become eligible for licensure
861following denial, suspension , or revocation
866pursuant to s. 626.611, s. 626.621,
872s. 626.8437, s. 626.844, s. 626.935,
878s. 626.9917, s. 634.181, s. 634.191,
884s. 634.320, s. 634.321, s. 634.422,
890s. 634.423, s. 642.041, or s. 642.043. The
898purpose of the waiting periods is to provide
906suffi cient time to demonstrate reformation of
913character and rehabilitation. The waiting
918periods shall vary based on the type of
926conduct and the length of time since the
934conduct occurred and shall also be based on
942the probability that the propensity to commit
949i llegal conduct has been overcome. The
956waiting periods may be adjusted based on
963aggravating and mitigating factors
967established by rule and consistent with this
974purpose.
9758. On October 17, 2002, Respondent adopted Rule 4 - 211.042,
986Florida Administrative Code. (All references to Rules are to
995the Florida Administrative Code.) Rule 4 - 211.042(8) provides:
1004(8) Required Waiting Periods for a Single
1011Felony Crime. The Department finds it
1017necessary for an applicant whose law
1023enforcement record includes a single fel ony
1030crime to wait the time period specified
1037below (subject to the mitigating factors set
1044forth elsewhere in this rule) before
1050licensure. All waiting periods run from the
1057trigger date.
1059(a) Class A Crime. The applicant will
1066not be granted licensure unt il 15 years have
1075passed since the trigger date.
1080(b) Class B Crime. The applicant will
1087not be granted licensure until 7 years have
1095passed since the trigger date.
1100(c) Class C Crime. The applicant will
1107not be granted licensure until 5 years have
1115pas sed since the trigger date.
1121(d) The Department shall not impose any
1128waiting period pursuant to this rule where
1135the only crime in an applicants law
1142enforcement record is a single felony crime
1149that results from the applicants passing of
1156a worthless che ck, or obtaining property in
1164return for a worthless check, and the amount
1172of the check or checks involved in the
1180single felony crime is $500 or less.
1187However, this subparagraph shall not apply
1193where a felony crime resulting from the
1200applicants passing of a worthless check, or
1207obtaining property in return for a worthless
1214check is not the only crime in an
1222applicants law enforcement record.
12269. Rule 4 - 211.042(21) provides that Class A crimes include
123764 felonies ranging from treason, murder, and air piracy, to
1247unlawful possession of a postal key and defrauding an innkeeper.
1257Rule 4 - 211.042(21)(2) includes fraud. Rule 4 - 211.041(11)
1267provides that the "trigger date" is the date on which the
1278applicant was found guilty, pleaded guilty, or pleaded no
1287contest. As is apparent from the Notice of Denial, described
1297below, the trigger date is the earliest of these three events.
130810. Section 626.641(2) provides:
1312No person or appointee under any license or
1320appointment revoked by the department or
1326office, nor any person wh ose eligibility to
1334hold same has been revoked by the department
1342or office, shall have the right to apply for
1351another license or appointment under this
1357code within 2 years from the effective date
1365of such revocation or, if judicial review of
1373such revocation is sought, within 2 years
1380from the date of final court order or decree
1389affirming the revocation. The department or
1395office shall not, however, grant a new
1402license or appointment or reinstate
1407eligibility to hold such license or
1413appointment if it finds that the
1419circumstance or circumstances for which the
1425eligibility was revoked or for which the
1432previous license or appointment was revoked
1438still exist or are likely to recur; if an
1447individual's license as agent or customer
1453representative or eligibility to hold s ame
1460has been revoked upon the ground specified
1467in s. 626.611(12), the department or office
1474shall refuse to grant or issue any new
1482license or appointment so applied for.
148811. On January 10, 2003, Petitioner filed an application
1497for licensure as a general l ines agent. On February 13, 2003,
1509Respondent issued a Notice of Denial. The Notice of Denial
1519explains that Section 626.611(14) provides that Respondent shall
1527deny an application for a license if it finds that the applicant
1539has been found guilty of, or pl eaded guilty or no contest to, a
1553felony involving moral turpitude, without regard to
1560adjudication, and that Section 626.621(8) provides that
1567Respondent may deny an application for a license if it finds
1578that the applicant has been found guilty of, or pleade d guilty
1590or no contest to, a felony. The Notice of Denial cites Rule
16024 - 211.042(8) with respect to the waiting time before licensure
1613due to a record of a single felony. The Notice of Denial
1625concludes that Respondent is subject to a waiting period of 14
1636ye ars from when he was found guilty, pleaded guilty, or pleaded
1648no contest.
165012. Petitioner is substantially affected by Rule
16574 - 211.042(8)(a). The effect of this rule is to preclude
1668Petitioner's application from consideration for 14 years from
1676the trigger d ate. Given the resolution of this case, it is
1688unnecessary to determine if Petitioner has standing to contest
1697the remaining subsections of Rule 4 - 211.042(8).
1705CONCLUSIONS OF LAW
170813. The Division of Administrative Hearings has
1715jurisdiction over the subjec t matter, pursuant to Section
1724120.56(3). Petitioner has standing, pursuant to Section
1731120.56(1)(a) and (3)(a).
173414. Pursuant to Section 120.56(3)(a), Petitioner has the
1742burden of proving that Rule 4 - 211.042(8) is an invalid exercise
1754of delegated legisla tive authority.
175915. Petitioner argues that the 15 - year waiting period in
1770Rule 4 - 211.042(8)(a) contravenes the two - year waiting period in
1782Section 626.641(2). However, there is no conflict between these
1791provisions. The statute deprives a licensee whose li cense has
1801been revoked of the right to reapply for two years. The rule
1813does nothing to change this statutory prohibition.
182016. Petitioner finds a negative implication in the statute
1829that limits to two years the period during which the revoked -
1841licensee may not reapply. However, such a negative implication
1850results in a conflict between Section 626.641(2) and the newer
1860Section 626.207(1). A reasonable interpretation that avoids any
1868conflict between the older and newer statutes limits the older
1878statute to it s two - year term and finds no implication that,
1891after two years, previously revoked applicants may file
1899applications. By this interpretation, Section 626.207(1) merely
1906builds upon the two - year waiting period in the older statute by
1919specifying waiting perio ds of five, seven, and fifteen years,
1929depending on the type of felony.
193517. Petitioner also relies on language in the second
1944sentence of Section 626.641(2) that prohibits Respondent from
1952issuing a license "if it finds that the circumstance or
1962circumstances for which the eligibility was revoked or for which
1972the previous license or appointment was revoked still exist or
1982are likely to recur." This provision imposes an additional
1991restriction upon Respondent that, when any statutory waiting
1999period has expired, Respondent may not issue a new license if
2010the factual basis for revocation still exists or the acts or
2021omissions on which revocation was based are likely to recur.
2031This provision applies even after the expiration of the longer
2041waiting periods authorized b y Section 626.207(1) and adopted by
2051Rule 4 - 211.042. The statute and rule establish these periods as
2063the minimum terms required for the applicant to demonstrate his
2073or her suitability for licensure and do not assure the applicant
2084that his or her applicant will be granted after the waiting
2095period has run.
209818. Respondent contends that Petitioner has not adequately
2106raised the issue of whether Rule 4 - 211.042(8) is arbitrary or
2118capricious. The petition mentions this issue, but does not
2127provide any explanation of how the rule is arbitrary or
2137capricious. In his proposed final order, Petitioner argues only
2146that the rule is arbitrary and capricious due to the perceived
2157conflict between the rule's 15 - year waiting period and the two -
2170year waiting period in Section 62 6.641(2). However, for the
2180reasons set forth above, no such conflict exists, so Rule
21904 - 211.042(8) is not arbitrary or capricious for the reason
2201advanced by Petitioner.
2204ORDER
2205It is
2207ORDERED that the Petition for a Determination of the
2216Invalidity of an E xisting Rule is dismissed.
2224DONE AND ORDERED this 7th day of November, 2003, in
2234Tallahassee, Leon County, Florida.
2238S
2239___________________________________
2240ROBERT E. MEALE
2243Administrative Law Judge
2246Division of Administrative Hearings
2250The DeSoto Building
22531230 Apalachee Parkway
2256Tallahassee, Florida 32399 - 3060
2261(850) 488 - 9675 SUNCOM 278 - 9675
2269Fax Filing (850) 921 - 6847
2275www.doah.state.fl.us
2276Filed with the Clerk of the
2282D ivision of Administrative Hearings
2287this 7th day of November, 2003.
2293COPIES FURNISHED:
2295Honorable Tom Gallagher
2298Chief Financial Officer
2301Department of Financial Services
2305The Capitol, Plaza Level 11
2310Tallahassee, Florida 32399 - 0300
2315Mark Casteel, General Counsel
2319Department of Financial Services
2323The Capitol, Plaza Level 11
2328Tallahassee, Florida 32399 - 0300
2333Scott Boyd, Acting Executive Director
2338General Counsel
2340Joint Administrative Procedures Committee
2344120 Holland Building
2347Tallahassee , Florida 32399 - 1300
2352Steven M. Malono
2355Pennington, Moore, Wilkinson,
2358Bell & Dunbar, P.A.
2362Post Office Box 10095
2366215 South Monroe Street, Second Floor
2372Tallahassee, Florida 32301
2375S. Marc Herskovitz
2378Terry Butler
2380Department of Financial Services
2384Division of Legal Services
2388612 Larson Building
2391200 East Gaines Street
2395Tallahassee, Florida 32399 - 4260
2400NOTICE OF RIGHT TO JUDICIAL REVIEW
2406This decision is final unless an adversely affected party:
2415a) brings a civil action within 30 days in
2424the appropriate fede ral district court
2430pursuant to Section 1415( i )(2)(A) of the
2438Individuals with Disabilities Education Act
2443(IDEA); [Federal court relief is not
2449available under IDEA for students whose only
2456exceptionality is "gifted"] or
2461b) brings a civil action within 30 da ys in
2471the appropriate state circuit court pursuant
2477to Section 1415( i )(2)(A) of the IDEA and
2486Section 1003.57(5), Florida Statutes; or
2491c) files an appeal within 30 days in the
2500appropriate state district court of appeal
2506pursuant to Sections 1003.57(5) and 12 0.68,
2513Florida Statutes.
- Date
- Proceedings
- Date: 09/26/2003
- Proceedings: Transcript filed.
- Date: 09/22/2003
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 09/19/2003
- Proceedings: Petitioner`s Supplement to Pre-Hearing Statement (filed via facsimile).
- PDF:
- Date: 09/18/2003
- Proceedings: Unilateral Pre-Hearing Statement (filed by Petitioner via facsimile).
- PDF:
- Date: 09/12/2003
- Proceedings: Agreed Motion for Continuance of Filing Date for Joint Prehearing Stipulation (filed by S. Malono via facsimile).
- PDF:
- Date: 08/19/2003
- Proceedings: Order of Consolidation. (consolidated cases are: 03-002146, 03-002859RX)
Case Information
- Judge:
- ROBERT E. MEALE
- Date Filed:
- 08/05/2003
- Date Assignment:
- 08/11/2003
- Last Docket Entry:
- 11/07/2003
- Location:
- Miami, Florida
- District:
- Southern
- Agency:
- Department of Financial Services
- Suffix:
- RX
Counsels
-
Mark Casteel, Esquire
Address of Record -
S. Marc Herskovitz, Esquire
Address of Record -
Steven M. Malono, Esquire
Address of Record