04-003711 Anthony A. Sagnelli vs. Department Of Financial Services Status: Closed Recommended Order on Monday, February 28, 2005.

Summary: Failure of Petitioner to disclose a conviction is a material omission and requires the denial of the application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY A. SAGNELLI, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3711

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On Jan uary 13, 2005, an administrative hearing in this case

was held in Clearwater, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Anthony A. Sagnelli, pro se

5549 Greyston Street

Palm Harbor, Florida 34685

For Respondent: Michael T. Ruff, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue in the case is whether Petitioner's application

for licensure should be approved.

PRELIMINARY STATEMENT

By Notice of Denial dated August 26, 2004, the Department

of Financial Services (Respondent) notified Anthony A. Sag nelli

(Petitioner) that his application for licensure as an insurance

agent was denied. Petitioner filed a request for review with a

departmental hearing officer. Respondent reviewed the request

and determined material facts were disputed. Respondent

fo rwarded the case to the Division of Administrative Hearings,

which scheduled and conducted the proceeding.

At the hearing, Petitioner testified on his own behalf.

Respondent presented no witnesses and had Exhibits numbered 1

through 9 admitted into evid ence.

The one - volume Transcript of the hearing was filed on

January 31, 2005. Respondent filed a Proposed Recommended Order

on February 10, 2005.

FINDINGS OF FACT

1. On July 12, 2004, Petitioner filed an application for

licensure as a Resident Life including Variable Annuity and

Health Insurance Agent with Respondent.

2. Included among the questions on the application was the

following:

Have you ever been convicted, found guilty,

or pled guilty or nolo contendere (no

contest) to a felony or crime pu nishable by

imprisonment of one (1) 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?

3. Petitioner answered "no" in response to the que stion.

4. The application requires the applicant to consent to

the following statement:

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 misrepresenta tion

of any fact required to be disclosed through

this application is a violation of the

Florida Insurance and Administrative Codes

and may result in denial of my application

and/or the revocation of my insurance

license(s).

5. By affixing his electronic signature to the

application, Petitioner affirmed that the information set forth

therein was true.

6. The evidence establishes that on April 7, 1978,

Petitioner was sentenced to the Nassau County Correctional

Center for a term of one year after entering a guilty plea to a

felony count of Attempted Grand Larceny (Grand Jury Indictment

No. 46323, June 24, 1977, Nassau County, New York.)

7. Petitioner entered the Correctional Center to begin

serving his sentence on December 15, 1978, and was released on

Feb ruary 28, 1979.

8. Petitioner did not disclose the 1978 conviction on the

application for licensure as an insurance agent.

9. After completing a criminal history check, Respondent

issued two deficiency letters, dated July 26, 2004, and

August 5, 20 04, seeking additional information related to

Petitioner's background.

10. In response to the deficiency letters, Petitioner

submitted additional information and a letter. In the letter

and in his testimony at the hearing, Petitioner stated that he

mis interpreted the question, and believed that because he was

incarcerated for less than one year, the 1978 conviction was

responsive to the question. He stated that he did not intend to

mislead or deceive Respondent.

11. Respondent issued a Notice of Den ial on August 25,

2004. The grounds for the denial was Petitioner's failure to

disclose the 1978 conviction.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 1 20.569 and 120.57(1), Fla. Stat. (2004). 1

13. Petitioner must establish that he meets the

requirements for licensure by a preponderance of the evidence.

Dept. of Banking and Finance, Div. of Securities and Investor

Protection v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996);

Florida Department of Transportation v. J.W.C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

14. Section 626.611, Florida Statutes, prov ides in

relevant part as follows:

Grounds for compulsory refusal, suspension,

or revocation of agent's, title agency's,

adjuster's, customer representative's,

service representative's, or managing

general agent's license or appointment. -- The

department sha ll deny an application for,

suspend, revoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, title agency, adjuster,

customer representative, service

representative, or managing general agent,

and it shall suspend or revo ke the

eligibility to hold a license or appointment

of any such person, if it finds that as to

the applicant, licensee, or appointee any

one or more of the following applicable

grounds exist:

* * *

(2) Material misstatement,

misrepresentation, or f raud in obtaining the

license or appointment or in attempting to

obtain the license or appointment.

(emphasis supplied)

15. Section 626.207, Florida Statutes, requires Respondent

to adopt rules establishing waiting periods for applicants to

become eligi ble for licensure following license application

denials issued pursuant to Section 626.611, Florida Statutes,

as well as other specified sections not applicable to this case.

Respondent has adopted Florida Administrative Code

Rule 69B - 211.042(4), which in relevant part provides as follows:

Effect of Failure to Fully Disclose Law

Enforcement Record on Application.

(a) The Department finds that all matters

that are part of an applicant's law

enforcement record are material elements of

the application, an d finds that the omission

of any part of the law enforcement record

required to be disclosed on the application

is a material misrepresentation or material

misstatement in and of itself . The

applicant shall have violated Section

626.611(2) or 626.621(1), Florida Statutes,

if the applicant fails to provide the

Department with the documentation required

by this rule.

(b)1. If an applicant fails to fully and

properly disclose the existence of law

enforcement records, as required by the

application, the appl ication will be denied

and a waiting period will be imposed before

the applicant may reapply for any license.

* * *

3. The waiting period shall begin on the

later of:

a. The date that the Department issues a

letter or notice of denial of the

applic ation, or

b. The date that a previously imposed

waiting period expires.

4. Waiting periods shall be calculated as

follows:

a. Class A or B crime omitted, where the

trigger date was more than 10 years before

time of application, add 1 year. If the

trig ger date was 10 years prior, or less

than 10 years prior, to the time of

application, add 2 years.

* * *

(c) An applicant whose application is

denied under this subsection shall resubmit

another application and applicable fee as

set forth in Section 624.501, Florida

Statutes, on the application form respective

to the type and class of license sought.

(d) After the waiting period has elapsed,

the Department shall consider the

application if it is resubmitted in good

form with applicable fees, and li censure

shall be granted if the licensee then meets

all the requirements and criteria for

licensure as set out in the then applicable

rules and statutes.

(e) Formal Record to be Made. The

Department finds that submission of an

application that is inaccu rate as to law

enforcement history is a matter of such

weight that a formal record of the

application shall be made and preserved by

Department order for reference and

consideration should the applicant

subsequently become licensed and violate any

portion of the insurance code. To this end,

applicants are required to execute a

settlement acknowledging the inaccuracy as a

prerequisite to becoming licensed after all

waiting periods have elapsed and the

applicant is otherwise eligible for

licensure. (emphasi s supplied)

16. Petitioner's 1978 criminal felony conviction appears

to fall within the parameters of a Class A crime. See Fla.

Admin. Code R. 64B - 211.042(21). As such, a one - year waiting

period from the date upon which Respondent issued the Notice of

Denial is required. The Notice of Denial was issued on

August 26, 2004; therefore, Petitioner may not reapply for

licensure prior to August 26, 2005.

17. In Petitioner's response to Respondent's deficiency

letters, Petitioner asserted that his answer t o the question

requiring criminal history disclosure was based on a

misunderstanding of the question. Subsection 626.611(2),

Florida Statutes, which requires denial of the application, does

not require that the "material misstatement" be intentional.

Fur ther, as set forth herein, Florida Administrative Code

Rule 69B - 211.042(4)(a) establishes that "all matters that are

part of an applicant's law enforcement record are material

elements of the application, and . . . the omission of any part

of the law enfo rcement record required to be disclosed on the

application is a material misrepresentation. . . ."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Financial Services enter

a final order denying the application for licensure filed by

Anthony A. Sagnelli and imposing a waiting period to expire on

August 26, 2005.

DONE AND ENTERED this 28th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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

Division of Administrative Hearings

this 28th day of February, 2005.

ENDNOTE

1/ All citations are to Florida Statutes (2004) unless

otherwise indicated.

COPIES FURNISHED :

Michael T. Ruff, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Anthony A. Sagnelli

5549 Greyston Street

Palm Harbor, Florida 34685

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 exceptions within

15 days from th e 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.