04-003187 Gregg Allen Brewer vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, January 4, 2005.

Summary: Petitioner failed to disclose on his application a drug conviction per military court martial. This failure, absent proof that the omission was unintentional, is sufficient to deny Petitioner`s application for a license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGG ALLEN BREWER, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3187

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Don W. Davis

of the Division of Administrative Hearings (DOAH), held a final

hearing in this case on November 3, 2004, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Gregg Allen Brewer, pro se

9 342 Cumberland Station Drive

Jacksonville, Florida 32257

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATE MENT OF THE ISSUE

The issue to be determined is whether Petitioner's

application for licensure should be granted.

PRELIMINARY STATEMENT

On or about January 6, 2004, Respondent received an

application from Petitioner seeking licensure as a temporary

life an d health insurance agent. By letter dated June 7, 2004,

Respondent advised Petitioner that his application was denied,

and Petitioner timely requested an evidentiary hearing regarding

that denial. This cause was thereafter transferred to DOAH for

condu ct of administrative proceedings.

At the final hearing, Respondent offered no direct

testimony, although Respondent's Exhibits numbered 1 through 9

were admitted into evidence. Petitioner testified in his own

behalf and presented the testimony of two witn esses. Petitioner

presented six exhibits which were admitted into evidence. A

transcript of the hearing record was provided and filed with

DOAH on December 7, 2004.

Although offered the opportunity at the final hearing,

neither party timely submitted pro posed recommended orders.

All references to Florida Statutes are to the 2004 edition,

unless otherwise indicated.

FINDINGS OF FACT

1. Respondent, Department of Financial Services, is the

state agency responsible for the licensure of insurance agents

in the State of Florida, pursuant to Chapter 626, Florida

Statutes.

2. On January 6, 2004, Respondent received an application

from Petitioner for temporary licensure as a life and health

insurance agent.

3. Petitioner answered "no" to the following ques tion on

that application:

Have you ever been convicted, found guilty,

or pled guilty or nolo contendere (no

contest) to a crime under the laws of any

municipality, county, state, territory [or]

country, whether or not adjudication was

withheld or a judgmen t of conviction was

entered?

4. At the end of the application, immediately above a

space for the applicant's signature and in a section of the

application titled "Applicant Affirmation Statement," appears

the following language:

I do solemnly swear th at all answers to the

foregoing questions and statements are true

and correct to the best of my knowledge and

belief. . . .

* * *

Under penalties of perjury, I declare that I

have read the foregoing application for

license and that the facts stated in it are

true. I understand that misrepresentation

of any fact required to be disclosed through

this application is a violation of The

Florida Insurance and Administrative Codes

and may result in the denial of my

application and/or the revocation of my

insura nce license(s).

5. Pursuant to the instructions on the form, Petitioner

signed the application, dated it December 12, 2003, and mailed

it to Respondent.

6. As documented by General Court Martial Order No. 17 - 01

of Sea Control Squadron Three Two at th e Naval Air Station,

Jacksonville, Florida, obtained by Respondent during the

application process, Petitioner, on January 18, 2001, entered a

plea of guilty to the charge of Distribution of Ecstasy, a

Felony, and was found guilty of the offense. Petitione r was

sentenced to confinement for a period of 40 months, and

reduction to pay grade E - 1, and subjected to dishonorable

discharge. A portion of the sentence was suspended upon the

issuance of the dishonorable discharge, following an order of

Rear Admiral Jan C. Gaudio on May 30, 2002.

7. By correspondence to Respondent, received on June 29,

2004, and through his testimony at the final hearing, Petitioner

asserted that his attorney at the time informed him that his

criminal record would never be seen out side the military.

Notwithstanding his attorney’s assurance, Petitioner informed

two subsequent employers that he thought he had a felony record.

When those employers checked and discovered no convictions, he

assumed the records were sealed as his previo us attorney had

assured him would be the case. Accordingly, he did not disclose

the matter on his application.

8. By Notice of Denial dated June 7, 2004, Respondent

informed Petitioner that his application was denied for

violations of Sections 626.611, 626.621(8), 626.785(1), and

626.831(1), Florida Statutes. Additionally, the denial informed

Petitioner of required waiting periods set forth in Florida

Administrative Code Rule 69B - 211.042. In Petitioner’s case, he

was also informed that a 16 - year waiti ng period would be required

before reapplication could be considered by Respondent.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties hereto and the subject matter hereof.

§§ 120.569 and 120.57(1), Fla. Stat.

10. As the applicant, 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 that he meets all of the relevant

statu tory criteria in order to satisfy this burden.

11. In its Notice of Denial, Respondent alleged that the

Petitioner violated certain provisions of the Florida Insurance

Code by failing to disclose his criminal history on his

application, namely, Section s 626.611, (1),(2),(7), and (14),

626.621(8), 626.785(1), and 626.831(1), Florida Statutes.

12. Section 626.611, Florida Statutes, reads in pertinent

part as follows:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

c ontinue the license or appointment of any

applicant, agent, title agency, adjuster,

customer representative, service

representative, or managing general agent,

and it shall suspend or revoke the

eligibility to hold a license or appointment

of any such pers on, if it finds that as to

the applicant, licensee, or appointee 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.

(2) Material misstate ment,

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.

13. Section 626.621(8), Florida Statutes, empowers

Respondent to deny licensur e when a applicant is guilty or has

pled 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 reg ard to whether a judgment of

conviction has been entered by the court having jurisdiction of

such cases.”

14. Further amplification of Respondent’s authority to

deny the license sought by Petitioner is unnecessary.

Petitioner's answer to the criminal hi story question on his

application for licensure was false. Respondent properly denied

Petitioner’s license.

15. Respondent's rules also make clear an applicant's duty

with regard to disclosure of criminal history records:

Every applicant shall disclose in writing to

the Department the applicant's entire law

enforcement record on every application for

licensure, as required therein, whether for

initial, additional, or reinstatement of

licensure. This duty shall apply even

though the material was disclose d to the

Department on a previous application

submitted by the applicant.

Fla. Admin. Code R. 69B - 211.042(2).

16. Petitioner has the burden to prove that he was unaware

that his answer to the criminal history question was not true

and that his untrue answer was unintentional. Munch v.

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992). Petitioner has failed to meet this burden of proof.

17. Florida Administrative Code Rule 69B - 211.042(8)

provides that an applicant who has failed to disclose a Class A

crime, shall wait 16 years to reapply for licensure. The

waiting period is to run from the later of either the date

Respondent issued its notice of denial, or the date that a

previously imposed waiting period expires.

RECOMM ENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order be entered finding that

Respondent acted properly in denying Petitioner’s application.

DONE AND ENTERED this 4th day of January, 2005, in

Talla hassee, Leon County, Florida.

S

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fi ling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January, 2005.

COPIES FURNISHED :

Gregg Allen Brewer

9342 Cumberland Station Drive

Jacksonville, Florida 32257

Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Peter 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 exceptions with in

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.