04-000443 Eugene P. Kent vs. Department Of Financial Services Status: Closed Recommended Order on Friday, September 3, 2004.

Summary: Petitioner showed that purported crime did not involve moral turpitude and the crime could not be analogized to one on the list of crimes in the rule requiring a waiting period for licensure. Sufficient investigation has shown justification for licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENE P. KENT, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0443

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

In accordan ce with notice, this cause came on for final

hearing, before P. Michael Ruff, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, on

April 29, 2004, in Tallahassee, Florida. The appearances were

as follows:

APPEARANCES

For Petitioner: Eugene P. Kent, pro se

1209 West 37th Street

Sioux Falls, South Dakota 57105

For Respondent: Ladasiah Jackson, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern

whether, because of a prior regulatory and cri minal history, the

Petitioner is entitled to licensure in Florida as a nonresident

life, health and variable annuity agent.

PRELIMINARY STATEMENT

This cause arose when the Petitioner, Eugene P. Kent, filed

an application for licensure as a nonresident l ife, health and

variable annuity agent with the Department of Financial Services

(Department). The application was filed on June 5, 2003, and

was in due course reviewed by the Department. On November 20,

2003, the Department issued notification to the Pe titioner that

his application for licensure was denied, based upon his

criminal history and prior administrative actions against his

previous insurance licenses. The Petitioner contested the

Department's initial determination as to its legal and factual

p osition and requested a formal proceeding. Accordingly, the

cause was transmitted to the Division of Administrative Hearings

and to the undersigned administrative law judge.

The cause came for hearing as noticed. During the hearing,

the Petitioner pres ented Exhibits A - P, which were admitted under

conditions delineated in the record, except for Petitioner's

Exhibit N, which was legal argument. The Respondent presented

Exhibits One through Eleven, which were admitted into evidence,

and Respondent's Exhib it Twelve, which was admitted as

corroborative hearsay. The Petitioner presented one witness,

the Petitioner himself and the Respondent presented one witness.

Upon concluding the proceeding, the parties requested an

extended period of time to present P ro posed R ecommended O rders,

which were timely filed and have been considered in the

rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, Eugene P. Kent, at times pertinent

hereto was a licensed insurance agent in South Dakota. He was

a pparently an agent or broker for the I ndependent C ommunity

B anker's A ssociation of South Dakota and engaged in the

insurance business with regard to the various group benefits

coverage for that association. Apparently in 1995, he become

involved in a disp ute between the Independent Community Banker's

Association of South Dakota and United of Omaha Life Insurance

Company.

2. This dispute, the exact nature of which is not of

record in this case, resulted in the Petitioner being charged

with mail fraud by th e United States A ttorney for the District

of South Dakota. He was prosecuted for mail fraud and

ultimately was convicted by jury verdict on or shortly after

October 26, 1996. He was sentenced to two years' imprisonment.

3. The Petitioner believed that evidence existed in the

home office of United of Omaha Life Insurance Company, which

would exonerate him, and that his counsel during the criminal

prosecution had, for unknown reasons, failed to subpoena and

obtain such evidence for use in his criminal tri al. He obtained

new counsel who was successful in obtaining the evidence in

question, which indeed proved to be exculpatory. It resulted in

the presiding judge in the criminal case vacating the order of

conviction, resulting in the Petitioner's release f rom

incarceration. Because of his conviction, the insurance

departments of South Dakota, as well as North Dakota and

Nebraska, had revoked his insurance licenses, based upon the

criminal conviction.

4. On October 26, 1996, during the progress of the

cr iminal trial referenced above, the Petitioner and his wife

became concerned that she would not have funds to pay for his

counsel, to operate her home and the business and to pay for her

son's alcohol rehabilitation expenses if the jury returned a

guilty ve rdict resulting in his incarceration. Consequently, on

that day, the Petitioner made a withdrawal from his business

account, drawn upon the Kent Insurance, Inc., account in the

amount of $9,900, by writing a check on that account. On the

same day, the Pe titioner went to a different branch of the same

bank and negotiated a second check on this same account also

made payable to him, again, in the amount of $9,900, drawn upon

the Kent Insurance, Inc., business account. The bank officer

upon the occasion of the second withdrawal that same day told

him that a currency transaction report would have to be filed.

The Petitioner readily agreed to file the report and assisted

the bank officer in completing and executing the transaction

report.

5. Thereafter, th e United States A ttorney secured an

indictment of the Petitioner, during his incarceration for the

earlier criminal conviction, before it was vacated by the trial

judge. He prosecuted the Petitioner for "attempting to cause a

financial institution not to file a report." During the

pendency of this second criminal proceeding, the Petitioner

remained incarcerated from the earlier proceeding, which was

later vacated. Because of this, his counsel in the second

criminal proceeding advised him to plead guilty to the second

charge in return for a light penalty, because his counsel

believed that if he attempted to litigate the second criminal

matter to trial, he would have difficulty convincing a jury of

his innocence because he was already incarcerated on the ea rlier

mail fraud charge. Consequently, on May 20, 1998, the

Petitioner pled guilty to attempting to cause a financial

institution not to file a report. He was sentenced to five

months' imprisonment as a result of that plea, which ran

concurrently with th e sentence imposed on February 24, 1997,

regarding the mail fraud charge. After release, he was

sentenced to supervised release for a period of approximately

two years.

6. The preponderant evidence in this proceeding shows that

the Petitioner did not a ttempt to defraud the federal government

or to prevent the bank involved from filing the report. Upon

being informed of the requirement of filing the report, he

freely consented and helped execute the report form involved at

his bank. The funds he withdr ew with the two checks were his

funds from an account over which he had ownership and signatory

authority. There is no evidence that the funds in the account

withdrawn by the Petitioner had been obtained through an

criminal alleged enterprise or that the Petitioner contemplated

using them for such a purpose.

7. The post - conviction evidence that was obtained by the

Petitioner and his counsel resulted in the judge vacating the

first conviction for mail fraud. This new evidence was also the

basis for the South Dakota Insurance Regulatory A gency

reinstating his licensure. Ultimately, the other states which

had revoked his licensure reinstated his licenses. The

Petitioner is now similarly licensed in 17 or 18 states. He

applied for licensure as a non - resi dent life, health, and

variable annuity agent in Florida and that application was

denied by the Department due to his criminal history and the

prior administrative actions against his licensure in the other

states. That denial resulted in this proceeding. The other

states which have since either reinstated his licensure or

licensed him did so with knowledge, as reported by the

Petitioner, of his prior criminal and administrative

proceedings.

8. The Department has a rule listing various crimes (in

Classes A, B, and C) such that, if a petitioner has been so

convicted, then that petitioner cannot be licensed for periods

of times stated in that rule. Class A crimes listed in that

rule carry the longest period of time during which licensure is

prohibited with a waiting period extending as much as 15 years.

The Division of Licensing of the Department decided that the

crime involved herein was a "Class A crime." The rule allows

the Department to analogize the crime of which a petitioner or

applicant has been c onvicted with one of the crimes listed in

this rule if the crime, of which an applicant was convicted, is

not itself listed in the rule. The Division of Licensing thus

decided to classify the crime of "attempting to cause a

financial institution not to fi le a report" as analogous to

"defrauding the government" or "obstruction of justice." The

Petitioner was not charged with either defrauding the government

or obstruction of justice and was not convicted of those crimes.

9. Although the stipulation of f acts between the

Petitioner and the United States A ttorney, attendant to the

Petitioner's plea in the second federal criminal case

(Petitioner's Exhibit G), shows that the Petitioner knowingly

attempted to avoid the reporting requirement imposed by Title 3 1

U.S.C. § 5313(a) on the bank for currency transactions of more

than $10,000 in one day, there is no persuasive evidence that he

did so for any illegal purpose or fraudulent intent, or intent

to in any way "obstruct justice," or engage in dishonest

conduc t. There was no demonstrative harm to the public nor was

there any "victim" of his purported crime. If the Petitioner

had truly wanted to conceal the transaction or induce the bank

to fail to report it, he could simply have presented the second

$9,900 ch eck on another day for cashing, or had his wife

negotiate such a check on a different business day. Instead,

when told by the bank employee, on presenting the second check,

that a currency transaction report would have to be filed, he

freely assented and assisted in the preparation of the report

form; even the above - referenced stipulation of facts attendant

to his criminal plea shows this. There was no requirement that

a report be made until the second check was negotiated on the

same day.

10. The Petiti oner's testimony in evidence, including the

fact that 18 states have licensed him or re - instated his

licensure since the criminal and administrative proceedings at

issue herein, with knowledge of those proceedings, shows

preponderantly that his crime did n ot "involve moral turpitude"

and that he is fit and trustworthy for engagement in the

practice of insurance. The crime to which he pled did not

involve any significant, rational relationship or nexus to the

two "analogized crimes" involving "obstruction o f justice" or

"defrauding the government" for purposes of the Department's

rule cited below. Two affidavits, admitted as Petitioner's

Exhibits J and K, as corroborative hearsay, in accordance with

Section 120.57(1)(c), Florida Statutes, bear out this find ing

and are worthy of quotation.

11. The first affidavit is that of attorney James L.

Volling, the Petitioner's counsel for purposes of appeal and

post - conviction challenge to his first conviction, and his

counsel for purposes of the second criminal cas e. Mr. Volling

practices in Minneapolis, Minnesota, and is admitted to practice

by the Minnesota Supreme Court, as well as by the United States

District Court for the District of Minnesota and for the

District of North Dakota. He is also admitted to prac tice in

the courts of appeal for the District of Columbia Circuit, the

Eighth Circuit and the Fifth Circuit, as well as the United

States Supreme Court. He testified in pertinent part as

follows:

Following Mr. Kent's conviction on two

counts of mail fraud , I was retained to

represent him for purposes of appeal and

post - conviction challenge to the conviction

as well as in connection with a second case

brought against him. Upon reviewing the

facts and the law in Mr. Kent's case, I

became convinced that his conviction was

defective and inappropriate. Ultimately,

the trial court agreed and his petition for

post - conviction relief was granted and his

conviction and sentence were vacated. The

government chose not to appeal that decision

which I believe clearly would have been

upheld by the United States Court of Appeals

for the Eighth Circuit.

During the pendency of post - conviction

proceedings in Mr. Kent's case, the

government brought a second case against

Mr. Kent involving allegations of an attempt

to avoid currency transaction reporting

requirements. In my view, these allegations

were petty at best, especially considering

that the bank involved did file a currency

transaction report and Mr. Kent expressly

permitted them to do so. Mr. Kent was

simply withdr awing his own money and there

was no claim that those funds were the

product of any illegal activity [or for any

illegal purpose]. The government's second

case was only technical in nature and, in my

view, would not have been charged in any

other jurisdic tion with which I am familiar.

Indeed, the assistant United States attorney

representing the government told me that the

only reason the government brought the

second case was their concern that

Mr. Kent's conviction in the first case

would ultimately be overturned, which of

course it was. With regard to the currency

transaction reporting matter, Mr. Kent

elected to enter a plea bargain to avoid

further expense and burden, and which did

not augment the punishment that had been

given to him in the first ca se. I have no

doubt that, if Mr. Kent, had not been

convicted in the first case so that he would

not have had that stigma at the time of the

second case, he would have elected to try

the currency transaction reporting case

rather than to enter into a plea agreement.

It was after that plea agreement, that the

conviction and sentence in Mr. Kent's first

case were vacated.

I have known and dealt with Eugene Kent for

approximately five years now. During that

entire time, he has always been a man of his

wo rd. He has done exactly what he said he

would do and has told me the truth in every

respect. I have great respect and

admiration for Mr. Kent as person and as a

client. I believe he has suffered unfairly

throughout this entire ordeal, but he has

remaine d steadfast and persevered through

some truly difficult times. I have been

proud to serve as his legal counsel, and I

would recommend him unhesitatingly to anyone

in terms of employment or any business

relationship.

12. The second affidavit is by Mark F . Marshall.

Mr. Marshall is now a lawyer and at times pertinent hereto has

been admitted to the practice of law by the South Dakota Supreme

Court. He has been in the active practice of law since 1981.

At times pertinent hereto from January 1, 1996, unti l August 1,

2000, Mr. Marshall served as a United States Magistrate Judge

for the District of South Dakota. Mr. Marshall testified

pertinently as follows:

From January 1, 1996 until August 1, 2000, I

served as a United States Magistrate Judge

for the Dist rict of South Dakota. In my

capacity as a United States Magistrate

Judge, I conducted the initial appearance

and detention hearings in a matter styled

the United States of America v. Eugene P.

Kent , CR. 96 - 40002 - 01.

Over the objection of the United State s, I

ordered Mr. Kent released on conditions. A

copy of the Order Setting Conditions of

Release, as well as Mr. Kent's Appearance

Bond in the Amount of $100,000.00 is

attached hereto as Exhibits A and B

respectively. [released on a non - surety

bond requir ing no security.]

In my capacity as a United States Magistrate

Judge, I conducted a hearing on the

Defendant's Motion to Dismiss in a matter

styled the United States of America v.

Eugene P. Kent , CR. 97 - 40111. [the currency

transaction prosecution.] I d enied the

Defendant's Motion to Dismiss as I believed

that an issue of fact existed as to the

Defendant's intent. While I believed that

it would be improper to dismiss the case

because of that issue, I also know that if I

had been the finder of fact I wou ld have

found the Defendant not guilty of all of

charges in the indictment.

Perhaps more so than any defendant who

appeared before me, Mr. Kent comported

himself with grace, dignity, and the utmost

of integrity with regard to both criminal

cases.

Since b eing exonerated from all underlying

criminal counts regarding this matter,

Mr. Kent has asked me to submit an affidavit

on his behalf. Initially, I was reluctant

to do so not because Mr. Kent was unworthy

of support, but because I was concerned

about whet her doing so would reflect

adversely on my former judicial office. I

have concluded that the interests of justice

compel me to provide this affidavit on

behalf of Mr. Kent.

I am firmly of the belief that Mr. Kent

committed no criminal acts in either of t he

cases venued in the United States District

Court for the District of South Dakota and

as such he should not bear the stigma of any

criminal record.

I have been a member of the South Dakota

Board of Pardons and Paroles since July of

2002. During my te nure as a member of the

Parole Board, I have reviewed hundreds of

applications for pardons.

I have reviewed all public filings in

Mr. Kent's civil actions arising from his

conviction as well as all filings in the

criminal action itself. Based on my

exper iences as a Parole Board member, my

knowledge of Mr. Kent individually and

professionally, and as well as my knowledge

of the role that pardons serve in the state

and federal judicial system, I believe that

Mr. Kent is an unusually worthy applicant

for suc h extraordinary relief.

It is my personal belief that Mr. Kent poses

no threat to society whatsoever. Society's

interests, as well as those of Mr. Kent,

would be well served by granting him the

relief he seeks . . . . Dated this 11th day

of November, 20 03.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.57(1) and 120.569, Florida Statutes (2003).

14. As an applicant for licensure, the Petitioner bears

the general burden of proving entitlement to the license.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). The Petitioner must

demonstrate by preponderant evidence that he meets all of the

relevant statuto ry criteria to justify licensure. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d

932, 934 (Fla. 1996).

15. Section 626.611, Florida Statutes, states in pertinent

part, that " . . . The Department shall deny . . . the licen se

or appointment of any agent . . . 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 . . . .

(14) Having been found guilty of or having

pleaded 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 of any state

thereof or under the law of any other

country which involves moral turpitude,

without regard to whether a judgment of

conviction has been entered by the court

having jurisdiction of such cases.

16. Section 626.621, Florida Statutes, provides, in

pertinent part, that " . . . The department may, in its

discretion deny . . . the license or appointment of any agent

. . . if it finds that as to the applicant . . . any one or more

of the following applicable gro unds exist under circumstances

for which such denial . . . is not mandatory under Section

626.611 . . .

(8) Having been found guilty of or having

pleaded 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 of any state

thereof or under the law of any other

country, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such cases.

17. Section 626.785(1), Florida Sta tutes, states: "The

department shall not grant or issue a license as a life agent to

any individual found by it to be untrustworthy or incompetent,

or who does not meet the following qualifications . . . ."

18. Section 626.83(1), Florida Statutes, states : "The

department shall not grant or issue a license as a health agent

to any individual found by it to be untrustworthy or

incompetent, or who does not meet the following qualifications."

19. The Department has a rule interpreting Sections

626.611 and 6 26.621, Florida Statutes, and Florida

Administrative Code Rule 69B - 211.042 (formerly Florida

Administrative Code Rule 4 - 211.042), which states in pertinent

part as follows:

(8) Required Waiting Periods After

Commission of Single Felony Crime. The

Departm ent construes sections 626.611 and

626.621, Florida Statutes, to require that

an applicant whose law enforcement record

includes a single felony wait for a period

of time before becoming eligible for

licensure in order to assure that the

criminal tendency or weakness has been

overcome. The Department finds it necessary

for an applicant whose law enforcement

record includes a single felony crime to

wait the time period specified below

(subject to the mitigating factors set forth

elsewhere in this rule) befo re licensure, so

that licensure is granted without undue risk

to the public good. All waiting periods run

from the trigger date.

(a) Class A crime. The applicant will not

be granted licensure until 15 years have

passed since the trigger date.

(23) Class "A" crimes include all those

listed in this subsection, and all are of

equal weight notwithstanding from which

subparagraph drawn. The department finds

that each felony crime listed in this

subsection [Class A crimes] is a crime of

moral turpitude.

(j) Obstruction of Justice

(ss) Defrauding the Government

20. Florida Administrative Code Rule 69B - 211.030 (formerly

Florida Administrative Code Rule 4 - 211.030), states in pertinent

part as follows:

. . . (11) 'Trigger Date' is the date on

which an ap plicant was found guilty, or pled

guilty, or pled no contest to a crime; or,

where that date is not ascertainable, the

date of the charges or indictment.

21. Florida Administrative Code Rule 69B - 211.042 further

provides:

. . . (7) Classification of Fe lony Crimes

(c) The names or descriptions of crimes, as

set out in the classification of crimes, are

intended to serve only as generic names or

descriptions of crimes and shall not be read

as legal titles of crimes, or as limiting

the included crimes b earing the exact name

or description stated.

(d) The lists are not all - inclusive. Where

a particular crime involved in an

application is not listed in this rule, the

Department has the authority to analogize

the crime to the most similar crime from

this list, to the effect that said crime is

not grounds for adverse action under this

rule.

(f) A charge in the nature of attempt or

intent to commit a crime, or conspiracy to

commit a crime, is classified the same as

the crime itself.

22. The rule goes on to provide at Subsection (10) for

Mitigating Factors as follows:

(a) The usual waiting period specified

above shall be shortened upon proof of one

or more of the following as are pertinent.

Where more than one factor is present the

applicant is entitled to add together all

the applicable mitigation amounts and deduct

that total from the usual waiting period;

provided that an applicant shall not be

permitted an aggregate mitigation of more

than 4 years for the following factors.

These factors do not ap ply to the applicant's factual situation,

the with exception of Subsection (10)(a)6:

Other Mitigating Factors. An applicant is

permitted to submit any other evidence of

facts that the applicant believes should

decrease the waiting period before licensu re

is allowed based on the standard in Section

626.207, F.S.

23. Initially, in the concept of the above - cited statutes

and the rule, it is concluded for purposes of the mandatory

license denial provision of Section 626.611(14), Florida

Statutes, that t he Petitioner's crime (if indeed it was one),

was not one "which involves moral turpitude." (emphasis

supplied.) Moral turpitude has been defined as related to the

duties owed by man to society or to individuals, as well as

acts, contrary to justice, hon esty, principle, or good morals.

See Pearl v. Florida Board of Real Estate , APP. 3d District, 394

So. 2d 189 (1981). (Licensed real estate salesman's convictions

for possession of controlled substances did not evidence "moral

turpitude" under statute whi ch provided for revocation or

suspension of a real estate license for crimes involving moral

turpitude.) In the instant situation, the Petitioner's actions

involving cashing the checks did not show any criminal,

dishonest or other nefarious intent, contra ry to good morals,

insofar as the evidence reveals.

24. The Petitioner cashed the checks to obtain his own

funds, which he was entitled to. There was no victim of his

purported crime and he defrauded no one, including the United

States government of an ything to which it was entitled.

Contrary to the federal statute germane to that prosecution, 31

U.S.C Sections 5313 and 5324(a)(1), he did not "attempt to

cause" or "cause" the financial institution to fail to file the

report, the currency transaction re port. There was shown to be

no obligation to report until he sought to cash the second

$9,900 check on the same day. At this point, the bank employee

told him of the necessity to file the currency transaction

report and he responded, "sure, fine," and th en assisted the

bank employee in preparing and completing that report form.

Because the reportable transaction was not completed until the

negotiation of the second check (nor was required) the

preponderant evidence, in this de novo proceeding, shows that he

made a decision to comply with the federal law and did so.

Consequently, it is determined that his "crime" did not involve

moral turpitude and cannot be the basis for mandatory denial of

licensure under the first above - quoted statutory provision and

t he rule. There has been no demonstration by the evidence in

this record that the funds in the check cashing transaction and

his intent with regard to his conduct during that transaction

involved any intent to deceive, defraud, or to further any kind

of cr iminal scheme or design, or to thwart any on - going or

prospective investigation or prosecution.

25. It is noted, somewhat parenthetically, that the

undersigned is mindful of the Petitioner's argument that

although the federal statute under which he was convicted

provided for more than one year imprisonment, as a possible

penalty, that his crime required punishment by imprisonment of

six months or a lesser penalty, because of the Petitioner's

position that the underlying federal statute should be read in

para materia with the application of the Sentencing Reform Act.

That act applies guidelines to federal judges so that the

Petitioner could have only been sentenced to six months

imprisonment or less (five months in his actual case). That

argument, althou gh somewhat persuasive is, however, belied by

the view of the undersigned that the disciplinary statutes

herein and cited above, providing for possible denial of

licensure because of felonies punishable by more than one year

imprisonment, were intended by the Florida Legislature to

envision the full possible penalty applicable to any license

applicant with a past felony, not to be dependent on merely the

specific factual circumstances of one situated as the

Petitioner.

26. Turning now to the Department's d iscretionary

authority to deny licensure under Section 626.621, Florida

Statutes, and the above rule, it is clear that under the

circumstances peculiar to this case, the Department should

exercise its discretion to grant licensure. The Department has

enac ted the above - cited rule as its interpretation of Sections

626.611 and 626.621, Florida Statutes, and thereby included a

"Class A" list of felonies which by the rule's terms are deemed

to all involve moral turpitude and to require a 15 - year waiting

period before licensure. Because the Petitioner's conviction is

not a listed crime, the Department, in the "free - form" stage of

this proceeding, by the terms of the rule, "analogized" the

Petitioner's crime to two crimes which are on the list,

"obstruction of j ustice" and "defrauding the government."

27. The circumstances surrounding the Petitioner's

conviction, however, have been shown to bear no logical,

rational relationship to the crime of obstruction of justice.

There was no evidence of any ongoing invest igation or

prosecution of the Petitioner or anyone else, which his actions

in cashing the checks, but voluntarily completing the report

forms, could have impeded or obstructed. The Petitioner's

completion of the report before the transaction which could h ave

required reporting was completed belies any such rational

inference or implication. Likewise, the Petitioner's "crime"

did not involve any element of "defrauding the government." He

neither took nor withheld anything of value from nor failed to

compl y with any obligation to the government, as shown by the

above - found facts. He engaged in no specific intent or design

to defraud the government of anything. He believed he was

complying with the law and thus he has been shown to have

embodied no fraudul ent intent at the time he engaged in the

subject conduct. With regard to both "analogized crimes," he

was obtaining his own funds, which were not shown to have

resulted from or were intended to be used for any illegal

enterprise. In short, if his convict ion were now analogized to

the crimes of obstruction of justice or defrauding the

government, after establishment of the evidence and findings in

this de novo context, such a determination would amount to an

excession of the Department's discretionary auth ority and would

amount to an arbitrary decision.

28. The preponderant, credible evidence, supportive of the

above findings of fact, thus establishes that the Petitioner's

conviction cannot fit within any of the list of Class A crimes,

by the terms of th e above - referenced rule and that, therefore,

no waiting period should apply. Therefore, he should be

licensed. This is especially so when one considers that more

than six years have already elapsed since his conviction.

29. Even assuming arguendo that h is crime fits into a

category for which there is a waiting period under the above

rule, the above facts and circumstances, preponderantly proven,

constitute sufficient "other mitigating factors," for purposes

of subparagraph 6 of the above rule, such that the six years

already elapsed since the conviction should be more than a

sufficient waiting period. Thus, in this context, he should be

licensed as well.

30. Moreover, the above, predominantly - proven facts, based

upon the undersigned's determination of credibility and weighing

of the evidence, show that the Petitioner is an applicant who is

fit and trustworthy to engage in the profession of insurance for

which he seeks licensure. Eighteen other states have so found.

31. Finally, even if this were a case where the Department

could discretionarily refuse to issue, renew, or continue a

license, the applicant Petitioner can still be licensed. This

is so because of the operation of Section 626.691(1) and (2),

Florida Statutes, as amended effective June 26, 2003. This

provision provides, in effect, that, even if the Department

finds that one or more grounds exist for refusal to license,

that it has the discretion to issue the license anyway and under

a probationary status for a period not to exceed two years,

under reasonable terms and conditions. Under the above - proven

facts and circumstances, the Petitioner should, at the very

least, be accorded admission to licensure in this manner.

32. In summary, given the above findings of fact,

established by pr eponderant, credible evidence, the explicit

purpose of the above rule, " . . . to assure that the criminal

tendency or weakness has been overcome . . . so that licensure

is granted without undue risk to the public good . . ." has been

met and licensure of the Petitioner will not transgress that

purpose. The Petitioner should be granted licensure.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses and t he pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that the Petitioner be granted licensure.

DONE AND ENTERED this 3rd day of September, 2004, in

Tallahassee, Leon County, Florida.

S

P. MICHAE L RUFF

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

Div ision of Administrative Hearings

this 3rd day of September, 2004.

COPIES FURNISHED :

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Pete Dunbar, General Coun sel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Ladasiah Jackson, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Eugene P. Kent

1209 W est 37th Street

Sioux Falls, South Dakota 57105

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 fil ed with the agency that

will issue the final order in this case.