04-001982 Tanya C. Lollie vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, December 2, 2004.

Summary: Petitioner showed that she deserved licensure due to adequate, mitigating factors and after nine and a-half years elapsed since the criminal plea.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TANYA C. LOLLIE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1982

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

In accorda nce 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

July 27, 2004, in Brooksville, Florida. The appearances were as

follows:

APPEARANCES

For Petitioner: Tanya C. Lollie, pro se

4732 Elwood Road

Spring Hill, Florida 34608

Elizabeth Penny, Certified Legal Intern

Ladasiah Jackson, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether

Petitioner's application for licens ure as a R esident C ustomer

R epresentative insurance agent should be granted.

PRELIMINARY STATEMENT

The Petitioner, Tanya C. Lollie, submitted an application

for licensure as a customer representative to the Department of

Financial Services (Department) on October 22, 2003. The

Department reviewed the application and advised the Petitioner

on April 5, 2004, that her application was denied. The denial

occurred because, in essence, the Petitioner had pled nolo

contendere to the charges of forgery of a check and of uttering

a forged check, on March 16, 1995. Each charge is a felony,

related to the same factual transaction.

The Petitioner filed a request for hearing concerning the

denial of her license application in accordance with Section

120.57(1), Flori da Statutes. The case was transferred to the

Division of Administrative Hearings and assigned to the

undersigned administrative law judge.

The cause came on for hearing as noticed, at which the

Petitioner testified on her own behalf and presented the

te stimony of Donald Whiting and Patricia A. Phillips.

Petitioner's Exhibit 1 was admitted into evidence. The

Respondent presented the testimony of Diana Fink and

Matthew Coxe. The Respondent's Exhibits 1 - 12 were admitted into

evidence. Upon conclusion of the proceeding a transcript

thereof was prepared. After two agreed - upon extensions were

granted, the Proposed Recommended Orders were filed by the

parties on or about October 7, 2004. Those Proposed Recommended

Orders have been considered in the renditi on of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner is a receptionist for an insurance

agency and is seeking licensure as a Florida R esident C ustomer

R epresentative from the Department of Financial Services. The

Department is an agency of t he State of Florida responsible for

the licensing of insurance agents and customer representatives

in the State of Florida, in accordance with the provisions of

Chapter 626, Florida Statutes.

2. On October 22, 2003, the Petitioner filed a license

applic ation (electronically) with the Department seeking

licensure as a R esident C ustomer R epresentative insurance agent.

3. On her application for licensure, the Petitioner

answered the following question in the negative:

Have you ever been convicted, found guilty,

or pled guilty or nolo contendere (no

contest) to a crime punishable by

imprisonment of one year or more under the

laws of any municipality, county, state,

territory or country, whether or not

adjudication was withheld or a judgment of

conviction was entered?

4. When the Petitioner signed her application for

licensure she signed an "Applicant Affirmation Statement" and

mailed it to the Department. In that statement, she swore that

all the answers on the questions on the application were true

an d correct to the best of her knowledge and belief. She knew

of the requirement to be truthful and honest on the application

and that had been stressed to her by her instructor for the

insurance pre - licensing course which she attended.

5. On March 16, 1 995, the Petitioner entered a plea of

nolo contendere to one count of forgery and one count of

uttering a forged instrument, both felonies. The related arrest

had occurred on November 10, 1994. The Petitioner was sentenced

to three years probation, requi red to make restitution, pay

court fines and costs and to perform fifty hours of community

service. She was to write a letter of apology to the victim and

to have no contact with the victim. Adjudication of guilt was

withheld. She performed all of the r equirements of her

sentence.

6. She was excused by the court from providing the fifty

hours of community service because she was pregnant at the time.

The Petitioner acknowledges that she answered the question

incorrectly and had made a mistake, becaus e she felt the phrase

"punishable by one year or more" meant that she had been

imprisoned for one year or more, which she had not. She

testified that she intentionally answered the question in the

negative because she was not aware that her felony crimes were

potentially punishable by one year or more.

7. She signed the 1995 plea agreement, which indicated

that it was then her understanding that the offenses could carry

a maximum sentence of ten years imprisonment. At the time she

answered the relevant question on her application, however, she

did not have a present understanding or recollection that that

would be the case. The point is, she answered in good faith.

She did not intentionally answer the question untruthfully but

rather due to a mistaken impression, after some nine or so years

had elapsed, concerning the nature and effect of the punishment

or potential punishment her crimes carried.

8. The Petitioner has not had a criminal history since her

1995 plea, with the exception of a June 7, 2000 arrest in

Hernando County, Florida, after her return to Florida from

Tennessee, for purported violation of probation with regard to

the 1995 felony case. The Petitioner's testimony demonstrates

in a credible way that indeed she had fulfilled the requirem ents

of her probation. The judge had released her from her community

service requirement and the reason for the arrest, because she

was believed to have failed to pay relevant costs and

restitution, apparently was a mistake. She established that at

or ar ound the time of her moving to Tennessee she had paid the

relevant monetary sums required with two cashiers checks. The

court terminated her probation. It is found that this arrest

was based upon a mistake.

9. The Petitioner's supervisor corroborated t he testimony

of the Petitioner and established that the circumstances and

mental impression leading to the Petitioner's negative answer

show no intent to be untruthful or to defraud. The Petitioner

and her witnesses (her supervisors) established that she has

been fit and trustworthy in her work with the insurance agency.

Petitioner has routinely handled sums of money for the agency

and for insurance clients, always with proper accounting and

never with any funds being missing or mis - appropriated.

10. Th e Petitioner's employment provides her family's only

livelihood for her and her child. Her employment is dependent

on her being granted licensure as a C ustomer R epresentative.

Denial of the license application will create a hardship for

her. She was nin eteen years of age at the time of the arrest

and plea, made full restitution and complied with the terms of

her probation.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to thi s

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

12. The Petitioner bears the ultimate burden of proving

entitlement to the license. Florida Department of

Transportation vs. J.W.C. Company , Inc., 396 So. 2d 778 (Fla.

1st DCA 1981); Pershing Industries, Inc. v. Dept. of Banking and

Finance , 591 So. 2d 991 (Fla. 1st DCA 1991). The Petitioner

must demonstrate by preponderant evidence that she meets all of

the relevant statutory criteria to justify licensure.

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

670 So. 2d 932, 934 (Fla. 1996).

13. The Department alleged that the Petitioner violated

various provisions of the Florida Insurance Code by failing to

disclose her criminal history on the licensure application, as

set forth in the notice of denial. The pertinent statutes and

rules upon which the Department relies in denying the

application for licensure are set forth as follows:

Section 626.611, Florida Statutes:

The department . . . shall deny an

application for . . . the license . . . 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 qualifications for

the license or appointment as specified in

this code.

(2) Material m isstatement,

misrepresentation, or fraud in obtaining the

license or appointment or in attempting to

obtain the license or appointment.

* * *

(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.

Section 626.7351, Florida Statutes:

The Department shall not grant or issue a

license as customer representat ive to any

individual found by it to be untrustworthy

or incompetent . . . .

Florida Administrative Code Rule 69B -

211.042(8):

Required Waiting Period for a Single Felony

Crime. The Department finds it necessary

for an applicant whose law enforcement

rec ord includes a single felony crime to

wait the time period specified below

(subject to the mitigating factors set forth

in this rule) before licensure. All waiting

periods run from the trigger date.

Florida Administrative Code Rule 69B -

211.042(4)(b)1:

E ffect of Failure to Fully Disclose Law

Enforcement Record on Application. If an

applicant fails to fully and properly

disclose the existence of law enforcement

records, as required by the application, the

application will be denied and a waiting

period wi ll be imposed before the applicant

may reapply for any license.

Section 626.621, Florida Statutes states:

The department . . . may, in its discretion,

deny an application for . . . the license

. . . of any applicant . . . if it finds

that as to the app licant . . . any one or

more of the following applicable grounds

exist under circumstances for which such

denial . . . is not mandatory under s.

626.611:

* * *

(8) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony o r 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 juri sdiction of such cases.

14. Florida Administrative Code Rule 69B - 211.042, is the

rule by which the Department interprets Sections 626.611 and

626.621, Florida Statutes. That rule provides in pertinent part

as follows:

Required Waiting Periods After Com mission of

Single Felony Crime. The Department

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 fa ctors set forth

elsewhere in this rule) before 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 h ave

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.

* * *

(n) Forgery.

* * *

(qq) Uttering of a forged check.

Florida Administrative Code Rule 69B -

211.041(11) states in pertinent part as

follows:

'Trigger Date' is the date on which an

applicant was f ound 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.

Florida Administrative Code Rule 69B -

211.042(10)(a) states in pertinent part:

The usual waiting period specified . . .

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.

* * *

2. One year is deducted if restitution or

settlement has been made for all crimes

wherein restitution or settlement wa s

ordered . . . .

3. One year is deducted if the applicant

was under age 21 when the crime was

committed, if there was only one crime on

the applicant's law enforcement record.

15. Florida Administrative Code Rule 69B - 211.042(10)(a)6

also provides for "additional mitigating factors" concerning the

imposition of periods of ineligibility for licensure as a

C ustomer R epresentative in addition to the above two reasons for

mitigation of one year each.

16. The additional mitigating factors applicable to the

Petitioner, in accordance with this portion of the above rule,

are found to be the fact that since the criminal incident she

has had no other criminal history; she has worked for a licensed

insurance agent and agency with no blemishes on her record and

has proven very trustworthy in handling monies of clients and of

the agency with no misappropriation of funds and no accounting

irregularities whatever. She is the sole support of herself and

her child and has a strong desire to improve her career position

i n the insurance profession by gaining this licensure. Through

her testimony, and through the testimony of the agency owner and

managing agent, she has established herself to be fit and

trustworthy to engage in the insurance business. That testimony

is ac cepted as credible in this regard, as to mitigating factors

and as to her fitness and trustworthiness.

17. It is thus determined, based upon the Petitioner's

testimony and evidence, that she has demonstrated her fitness

and trustworthiness to engage in the business of insurance and

she has demonstrated, given the above Findings of Fact, that she

made no intentional misstatement, misrepresentation, or

fraudulent representation in seeking to obtain the license, by

the answer she gave concerning her crimina l history. She made a

mistake of law in determining that she was not required to

answer in the affirmative concerning her criminal history

because of her belief concerning her sentence being less than

one year imprisonment. That was a mistake of law beca use it

should have been disclosed, but it was not shown to be an

intentional or fraudulent misrepresentation. Thus, she has not

been shown to have violated Section 626.611(2) and (7), Florida

Statutes, quoted above.

18. She has pled nolo contendere to a felony punishable by

imprisonment of one year or more under the law of this state or

potentially so and therefore committed a violation of Section

626.611(14), Florida Statutes. But she has established that her

untrue answer concerning her criminal his tory on the application

was an unintentional result. See Munch v. Department of

Professional Regulation , 592 So. 2d 1136 (Fla. 1st DCA 1992).

19. It is true that even if she had not failed to disclose

her criminal history she would still not be eligib le for

licensure, absent mitigating factors, because she has not met

the required fifteen - year waiting period for her specific "Class

A" felonies. The criminal act involved is a Class A felony as

envisioned in Florida Administrative Code Rule 69B -

211.042( 21)(n)(qq) quoted above. Because she did not

intentionally fail to disclose, with fraudulent intent, the

criminal history, the added two years the Department might add

to her fifteen - year waiting period should be discounted or

removed. The Department has already determined that she is

entitled to two years of mitigation because she was only

nineteen years of age at the time the crime was committed and

because she made full restitution to the victim. Given the

above "additional mitigating factors" discuss ed in the

Conclusions of Law and in the circumstances delineated in the

above Findings of Fact, it would seem that additional mitigation

should be accorded the Petitioner. She is clearly remorseful

about the incident in her past and clearly seeks to conti nue to

be and become a more productive member of society and of the

insurance profession. Her work record in the insurance business

up to the present time shows that she is fit and trustworthy to

continue to do so. She has already had over nine and one - h alf

years elapse since the trigger date for the normal fifteen - year

waiting period, which began on March 16, 1995. Accordingly,

additional mitigation should be given her so that she can now be

licensed after an excess of nine and half years waiting period .

20. Moreover, the Department has discretion in determining

fitness and trustworthiness of applicants for licensure.

Department of Banking and Finance v. Osborne , supra at 934. In

view of this and in consideration of Section 626.691, Florida

Statutes , which provides for the granting of a probationary

licensure under certain conditions, delineated therein, it would

seem that the Department has discretion to grant her licensure

at this time, after the excess of nine and one - half years

waiting time and g rant her a probationary license. Thus, she

can be licensed under this consideration for a period of up to

two years probation under reasonable terms specified by the

Department in its order. It would seem just in the situation of

this Petitioner for the Department to do so.

RECOMMENDATION

Having considered the foregoing findings of fact,

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

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that a final order be entered by the Department

granting the licensure applied; or granting it for a

probationary period of two years under reasonable terms and

conditions specified by the Department in that final order.

DONE AND ENTERED this 2nd day of D ecember, 2004, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of December, 2004.

COPIES FURNISHED :

Honorable Tom Gallagher

Chief Financial Officer

Department of Financi al 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

Tanya C. Lollie

4732 Elwood Road

Spring Hill, Florida 346 08

Elizabeth Penny, Certified Legal Intern

Ladasiah Jackson, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions w ithin

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.