03-004495 Keith Luther Fernandez vs. Department Of Financial Services Status: Closed Recommended Order on Friday, August 13, 2004.

Summary: Respondent should grant the license application when an applicant is otherwise entitled to the license. Waiting periods do not apply because Respondent has not previously denied, suspended or revoked the applicant`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH LUTHER FERNANDEZ, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4495

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Adm inistrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on behalf of the Division of

Administrative Hearings (DOAH), on May 27, 2004, in Orlando,

Florida.

APPEARANCES

For Petitioner: Keith Luther Fernandez, pro se

3667 Oakhill Drive

Titusville, Florida 32780

605 Casa Park Court M

Winter Springs, Florida 32708

For Respondent: Dana M. Wiehle, Esquire

Departmen t of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUES

The issue for determination is whether Respondent should

deny Pet itioner's application to be licensed as a resident

insurance adjuster pursuant to Florida Administrative Code

Rule 69B - 211.042, because Petitioner is on probation and is

participating in a pre - trial intervention program; and, if so,

whether Petitioner is entitled to a default license because

Respondent did not grant or deny the license within 90 days

pursuant to Subsection 120.60(1), Florida Statutes (2002).

PRELIMINARY STATEMENT

On April 3, 2003, Petitioner applied to be licensed as a

resident insurance a djuster. By letter dated September 25,

2003, Respondent notified Petitioner that Respondent proposed to

deny the license application. Petitioner timely requested an

administrative hearing, and Respondent referred the matter to

DOAH to conduct the hearing .

On February 3, 2004, Petitioner challenged Florida

Administrative Code Rule 68B - 211.042(6), (8), and (14) pursuant

to Section 120.56, Florida Statutes (2003). Pursuant to the

parties' agreement, the ALJ consolidated the rule challenge with

this proceedi ng. The ALJ addresses the issues raised in the

rule challenge in a separate Final Order issued on the same date

as the date of this Recommended Order.

At the hearing, Petitioner presented the testimony of eight

witnesses, including Petitioner, and submitt ed seven exhibits

for admission into evidence. Respondent presented the testimony

of two witnesses and submitted 11 exhibits for admission into

evidence. The identity of the witnesses and exhibits and the

rulings regarding each are reported in the Transc ript of the

hearing filed with DOAH on June 24, 2004.

Pursuant to Petitioner's unopposed request to extend the

deadline for filing proposed recommended orders (PROs), the

parties' respective PROs were to be filed with DOAH no later

than July 16, 2004. Eac h party timely filed a PRO on July 16,

2004.

FINDINGS OF FACT

1. Respondent is the state agency responsible for

licensing insurance agents in the State of Florida, pursuant to

Chapter 626, Florida Statutes (2002). On April 3, 2003,

Petitioner applied for a license as a resident company employee

property and casualty adjuster (resident adjuster license).

Petitioner truthfully answered all questions on the application,

including those questions pertaining to Petitioner's criminal

history and plea of guilty to a felony charge in Georgia.

2. On September 25, 2003, Respondent issued a Notice of

Denial of Petitioner's license application. Respondent based

the denial on the grounds that Petitioner pled guilty to a

crime of moral turpitude, within the meaning of Subsection

626.611(14), Florida Statutes (2002), for which denial of his

application is mandatory; that Petitioner pled guilty to a crime

not involving moral turpitude, within the meaning of Subsection

626.621(8), Florida Statutes (2002), for which den ial of his

application is discretionary; that Florida Administrative Code

Rule 69B - 211.042(6) and (14) prohibits Respondent from granting

the application while Petitioner is on probation or in a pre -

trial intervention program; and that Florida Administrati ve Code

Rule 69B - 211.042(8) requires Petitioner to wait five years after

the plea dated May 14, 2002, before applying for a license.

3. On a date not disclosed in the record, Respondent

issued a Second Amended Notice of Denial (the Amended Notice of

Den ial). The record does not disclose a first amended notice of

denial. The Amended Notice of Denial deletes the ground that

Petitioner pled guilty to a crime of moral turpitude, but

retains the other grounds for denial stated in the Notice of

Denial issued on September 25, 2003.

4. On May 14, 2002, Petitioner pled guilty to a single

felony charge of possession of cocaine. A Georgia court

sentenced Petitioner under Georgia's First Offender Act. If

Petitioner successfully completes probation, Georgia wi ll

dismiss the felony charge. If Petitioner does not successfully

complete probation, the Georgia court may revoke Petitioner's

probation, adjudicate Petitioner guilty as charged, and sentence

Petitioner to the maximum sentence authorized under Georgia la w.

5. When Georgia authorities arrested Petitioner for

possession of cocaine on November 4, 2001, Petitioner held a

Florida nonresident company all - lines adjuster license pursuant

to license number A082918 (a nonresident adjuster license).

Petitioner vol untarily cancelled the nonresident adjuster

license on October 21, 2002.

6. On January 22, 2003, Respondent sent a letter to

Petitioner inquiring into the Georgia arrest in accordance with

Subsections 626.611(14), 626.621(8), and 626.631, Florida

Statu tes (2002). In response to the letter from Respondent,

Petitioner filed the application for a resident adjuster license

that is at issue in this proceeding. Petitioner attached a

letter explaining the circumstances of the criminal proceeding

in Georgia a nd three letters of recommendation.

7. The second page of the application that Petitioner

submitted notifies Petitioner that Respondent will not consider

the application while Petitioner is under probation or in a pre -

trial intervention program. In r elevant part, the second page

of the application provides:

NOTE: IF YOU ARE CURRENTLY ON PROBATION OR

PARTICIPATING IN A PRE - TRIAL INTERVENTION

PROGRAM, YOU MAY WANT TO WAIT TO FILE YOUR

APPLICATION WITH THE DEPARTMENT UNTIL YOUR

PROBATION OR PRE - TRIAL PR OGRAM HAS

TERMINATED. (For other than minor traffic

violations, the rules of the Department

prohibit the approval of licensure for an

individual who is currently serving a

probationary term or participating in a pre -

trial intervention program. . . .) (

em phasis not supplied)

8. After receiving the application for a resident adjuster

license, Respondent issued a letter dated April 7, 2003, stating

Respondent's intent to deny the application. The letter did not

state that Respondent intended to deny the a pplication on the

ground that Petitioner violated Subsection 626.621(8), Florida

Statutes (2002), by pleading guilty to a crime that does not

involve moral turpitude. In relevant part, the letter stated:

[W]e are in receipt of the certified

documents, how ever, a review of the

documents indicate[s] that you are still on

probation. The rules of the Department

prohibit the approval of licensure for an

individual who is currently serving a

probationary term. Please write and let us

know if we need to close o r withdraw your

application.

9. The position stated by Respondent in the letter dated

April 7, 2003, is substantially similar to that taken by

Respondent during the hearing and in its PRO. Respondent does

not assert that Respondent should deny the appli cation on the

ground that Petitioner pled guilty to a crime for which

Subsection 626.621(8), Florida Statutes (2002), gives Respondent

discretionary authority to deny the application.

10. Respondent's position is consistent with the

preponderance of evi dence. The preponderance of evidence shows

that Petitioner is rehabilitated and has no propensity to commit

the crime for which he is under probation in Georgia. Rather,

Respondent relies upon a rule that Respondent interprets as

imposing specific waitin g periods following the plea agreement

in Georgia before Petitioner may apply for a resident adjuster

license in Florida.

11. Respondent proposes to deny Petitioner's application

for a resident adjuster license on the basis of Respondent's

interpretatio n of Florida Administrative Code Rule 69B - 211.042.

Respondent interprets Florida Administrative Code

Rule 69B - 211.042(6) as prohibiting Respondent from considering

the application of any applicant who is on probation until

the applicant has satisfactori ly completed the probation.

Respondent interprets Florida Administrative Code

Rule 69B - 211.042(8) as requiring Petitioner to wait five years

after the plea in Georgia before Petitioner is eligible for

licensure in Florida. Respondent interprets Florida

Administrative Code Rule 69B - 211.042(14)(b) as prohibiting

Respondent from granting a license application to Petitioner

while Petitioner is in a pre - trial intervention program.

12. The enabling legislation for Florida Administrative

Code Rule 69B - 211.042 is Subsection 626.207(1), Florida Statutes

(2002). Subsection 626.207(1), Florida Statutes (2002),

authorizes Respondent to adopt rules establishing specific

waiting periods after Respondent denies, suspends, or revokes

Petitioner's license pursuant to s pecifically enumerated Florida

statutes. In relevant part, Subsection 626.207(1), Florida

Statutes (2002), provides that Respondent:

. . . shall adopt rules establishing

specific waiting periods for applicants to

become eligible for licensure following

de nial, suspension, or revocation . . . .

(emphasis supplied)

13. Subsection 626.207(1), Florida Statutes (2002),

prescribes a statutory prerequisite to the imposition of any

waiting period pursuant to Florida Administrative Code

Rule 69B - 211.042. The sta tutory prerequisite is that Respondent

must first deny, suspend, or revoke an existing license based on

statutory provisions enumerated in the enabling legislation;

enumerated provisions that are independent of any waiting

periods. Thereafter, Respondent may impose relevant waiting

periods to any application that follows the denial, suspension,

or revocation of the existing license.

14. Respondent proposes to impose a waiting period against

Petitioner without first satisfying the statutory prerequisite

of a denial, suspension, or revocation of an existing license

within the meaning of Subsection 626.207(1), Florida Statutes

(2002). The waiting period proposed by Respondent does not

follow a denial, suspension, or revocation of an existing

license. Rath er, the proposed waiting period follows a plea

entered by Petitioner in Georgia on May 14, 2002.

15. The application for a resident adjuster license that

is at issue in this proceeding indicates that no administrative

action was ever taken against Petit ioner's nonresident adjuster

license, and Respondent stipulated that Petitioner answered all

questions on the application truthfully. The Florida licensure

file that Respondent maintains shows no administrative action

against Petitioner's nonresident adju ster license.

16. Respondent proposes to apply a waiting period in a

manner that does not follow denial, suspension, or revocation of

either the previous nonresident adjuster license or the resident

adjuster license that Petitioner seeks in this proceed ing. In

effect, Respondent's proposed agency action would effectively

amend Subsection 626.207(1), Florida Statutes (2002), by denying

Petitioner's application for a resident adjuster license on the

basis of a waiting period, rather than on the basis of o ne of

the statutory provisions enumerated in the enabling legislation.

Such action would have the effect of enlarging or modifying the

specific provisions of Subsection 626.207(1), Florida Statutes

(2002), that require the imposition of a waiting period t o

follow Respondent's denial, suspension, or revocation of an

existing license.

17. Respondent orally advised Petitioner that Respondent

was authorized by rule to approve Petitioner's application if

Petitioner were successful in terminating the Georgia p robation

early. However, Subsection 120.60(1), Florida Statutes (2002),

required Respondent to approve or deny the application no later

than July 2, 2003. Petitioner sought additional time to

petition the Georgia court to terminate his probation early.

18. On June 27, 2003, Petitioner signed a "Waiver of

Deemer Date" (Waiver) that suspended for 60 days the requirement

in Subsection 120.60(1), Florida Statutes (2002), for Respondent

to approve or deny the license application within 90 days after

receipt of the application. In relevant part, the Waiver

stated:

I hereby voluntarily and knowingly waive the

time requirement regarding final action on

my license application as specified in

Section 120.60(1), Florida Statutes.

Specifically, I waive the provisi on that

requires the Department of Financial

Services to either approve or deny my

pending application for licensure as a

company employee property & casualty

adjuster within 90 days after receipt of the

completed application. This waiver is

effective for 60 days. (emphasis supplied)

19. The 60 days in which the Waiver was effective, expired

on August 31, 2003. However, approximately six days remained in

the 90 - day statutory period when Petitioner signed the Waiver on

June 27, 2003. The 90 - day statut ory period expired six days

after August 31, 2003, on or about September 6, 2003.

20. Petitioner attended a court hearing in Georgia

sometime in August 2003, in an attempt to persuade the Georgia

court to terminate Petitioner's probation. Petitioner was

unsuccessful and remained on probation at the time of the

administrative hearing in this proceeding.

21. Petitioner did not advise Respondent of the outcome of

the Georgia hearing until September 4, 2003, when Respondent

inquired of the status of Peti tioner's application. On

September 4, 2003, Respondent had actual notice from Petitioner

that Petitioner had been unsuccessful in his attempt at early

termination of his probation. Respondent did not issue its

Notice of Intent to Deny the license until S eptember 25, 2003.

22. Respondent's letter dated April 7, 2003, provided

Petitioner with written notice of Respondent's intent to deny

the license application unless Petitioner was successful in

obtaining early termination of his probation. Oral

commu nications from Respondent's authorized representative also

indicated that Respondent intended to deny the license

application if Respondent were unable to license Petitioner

temporarily. The author of a cover letter issued with the

Waiver on June 26, 2003 , stated, in relevant part, that the

author did not have an answer to the issue "we discussed"

regarding a temporary license. The author indicated that she

would contact Petitioner as soon as she had an answer. The

record discloses no answer prior to the Notice of Intent to Deny

dated September 25, 2003.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction over the parties and subject

matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

(2002). DOAH provided the parties with adequate notice of the

administrative hearing.

24. Petitioner bears the ultimate burden of proving

entitlement to a license. Florida Department of Transportation

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

Petitioner must show by a preponderance of the evidence that he

satisfied relevant statutory criteria for the license or that he

is entitled to a license because Respondent failed to approve or

deny his application within 90 days of the application plus the

60 days authorized in the Waiver.

25. Petitioner d id not show that he is entitled to a

license on the ground that Respondent failed to issue the

license within the 90 - day statutory period prescribed in

Subsection 120.60(1), Florida Statutes (2002). The letter dated

April 7, 2003, was issued well before t he extended deadline of

September 6, 2003, and provided adequate notice to Petitioner

that Respondent intended to deny Petitioner's application for a

resident adjuster license if Petitioner were unable to terminate

his probation early or if Respondent were unable to license

Petitioner temporarily. See Sumner v. Department of

Professional Regulation , 555 So. 2d 919, 921 (Fla. 1st DCA

1990)(oral notice within 90 days that an agency has denied an

application is sufficient to avoid a deemed license by operatio n

of law). See also Department of Transportation v. Calusa Trace

Development, Corp. , 571 So. 2d 543, 546 (Fla. 2d DCA 1990)(oral

notice of intent to deny license application that leaves open

possibility of granting the application upon satisfaction of

cer tain criteria does not alter notice of intent to deny

application under existing circumstances).

26. Respondent should not deny the license application on

the ground that Petitioner committed a crime of moral turpitude

within the meaning of Subsect ion 626.611(14), Florida Statutes

(2002). Possession of a controlled substance, without more, is

not a crime of moral turpitude. Miliken v. Department of

Professional Regulation , 709 So. 2d 595, 597 (Fla. 5th DCA 1998);

Pearl v. Florida Board of Real Est ate , 394 So. 2d 189, 192 (Fla.

3d DCA 1981).

27. Petitioner showed that he is eligible to be licensed as a

resident adjuster pursuant to Subsection 626.621(8), Florida

Statutes (2002). The authority for Respondent to deny a license

application pursuant to Subsection 626.621(8), Florida Statutes

(2002), is discretionary rather than mandatory. The preponderance

of evidence shows that Petitioner is rehabilitated and has no

propensity to commit the crime for which he is under probation

in Georgia.

28. Florida Administrative Code Rule 69B - 211.042(6), (8),

and (14) is inapposite to the facts in this case. Subsection

626.207(1), Florida Statutes (2002), authorizes Respondent to

apply specific waiting periods "following denial, suspension, or

revocation" o f a license pursuant to enumerated Florida statutory

provisions. Respondent proposes to impose a waiting period

following the plea in Georgia rather than following a denial,

suspension, or revocation of a license under Florida law .

29. If Respondent we re to deny Petitioner's application

for a resident adjuster license on the basis of statutory

provisions enumerated in the enabling legislation, Subsection

621.207(1), Florida Statutes (2002), would authorize Respondent

to apply the waiting periods prescri bed in Florida

Administrative Rule 69B - 211.042(6), (8), and (14) to prevent

Petitioner from applying for a license before the expiration of

the applicable waiting period. Similarly, if Respondent were to

have suspended or revoked Petitioner's nonresident adjuster

license, Respondent would then be authorized by the enabling

legislation to apply the relevant waiting period to prevent

Petitioner from applying for another nonresident adjuster

license; or arguably to prevent Petitioner from applying for

the re sident adjuster license at issue in this proceeding. In

order to preserve the validity of Florida Administrative

Rule 69B - 211.042(6), (8), and (14), the rule must be construed

in a manner that does not enlarge, modify, or contravene the

specific provisio ns of Subsection 621.207(1), Florida Statutes

(2002), that require the imposition of waiting periods to follow

administrative action by Respondent in the form of a denial,

suspension, or revocation of an existing license.

30. Respondent argues in its PR O that its interpretation

of Florida Administrative Code Rule 69B - 211.042(6), (8),

and (14) is reasonably related to the purpose of Subsection

621.207(1), Florida Statutes (2002), and to the policy of

deference to courts exercising jurisdiction over perso ns under

probation or in pre - trial intervention programs. That may be.

However, no agency, including Respondent, has authority to adopt

a rule solely on the ground that the rule is reasonably related

to the purpose of the enabling legislation. Florida

A dministrative Code Rule 69B - 211.042(6), (8), and (14) must be

construed in a manner that implements the specific powers and

duties granted in Subsection 621.207(1), Florida Statutes

(2002). § 120.52(8), Fla. Stat. (2003).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a Final Order granting

Petitioner's application for a resident adjuster license.

DONE AND ENTERED this 13th day of August, 2004, in

Tallahassee, Leon County, Flori da.

S

DANIEL MANRY

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.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of August, 2004.

COPIES FURNISHED :

Keith Luther Fernandez

605 Casa Park Court M

Winter Springs, Florida 32708

Keith Luther Fernandez

3667 Oakhill Drive

Titus ville, Florida 32780

Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Pete Dunbar, 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 exc eptions 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.