04-003871 Alejandro S. Contreras vs. Department Of Financial Services Status: Closed Recommended Order on Friday, January 28, 2005.

Summary: Petitioner`s poor English skills, and not untruthfulness led to an incorrect answer. Recommend that he be approved for licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALEJANDRO S. CONTRERAS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3871

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

by video teleconference on December 15, 2004, with the

Petitioner appearing from Fort Lauderdale, Florida, before J.

D. Parrish, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Pet itioner: Alejandro S. Contreras, pro se

300 Northeast 12th Avenue, Apartment 405

Hallandale Beach, Florida 33009

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

Whether the Petitioner, Alejandro S. Contreras,

(Petitioner or applicant) is entitled to have his application

for licensure as a general lines agent be g ranted.

PRELIMINARY STATEMENT

This case began on September 9, 2004, when the

Respondent, Department of Financial Services (Respondent or

Department) issued a Notice of Denial regarding the

Petitioner’s application for license. The denial alleged that

the applicant had failed to accurately respond to a question

on the application for license. More specifically, the denial

maintained that the Petitioner had failed to disclose a plea

of nolo contendere to the criminal charge of possession of

forged/fictitio us registration or indicia of ownership of a

motor vehicle. When he received notice of the denial, the

Petitioner timely requested an administrative hearing to

review the matter.

The case was forwarded to the Division of Administrative

Hearings for formal proceedings on October 27, 2004.

Thereafter the matter was scheduled for formal hearing and was

set for video teleconference, as it was anticipated the amount

of time needed to try the case would not be great.

At the hearing, the Petitioner testified o n his own

behalf and offered testimony from his employer, Tiffanie

Tedesco. The Respondent’s Exhibits numbered 1 - 6 were admitted

into evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on December 23, 2004.

Thereafter, the Respondent timely filed a Proposed Recommended

Order that has been fully conside red in the preparation of

this Recommended Order. The Petitioner did not timely file a

proposed order.

FINDINGS OF FACT

1. The Petitioner is an applicant for licensure as a

general lines agent. He is employed by the Twin Peaks

Insurance Agency and is considered a valued employee.

2. The Respondent is the state agency charged with the

responsibility of regulating the insurance industry in Florida

and must make determinations regarding the licensure of

general lines agents.

3. In January of 1988, when he was approximately 21

years old, the Petitioner purchased an automobile from “a

friend.” Subsequently, the Petitioner was charged with

possession of forged /fictitious registration or indicia of

ownership of a motor vehicle. The Petitioner quickly

discovered why the vehicle had been a good buy: it had been

stolen.

4. Regardless, after being charged, the Petitioner

entered a plea of nolo contendere to the matter and the judge

withheld adjudication, placed the Petitioner on a one - year

probation, and imposed community service. The Petitioner

successfully completed the terms of his probation.

5. The crime, as charged, was a third - degree felony.

Such felonies may be punishable with up to five years of

imprisonment. Clearly, by acknowledg ing the wrong doing and

taking responsibility for his actions, the Petitioner saved

himself from a potentially harsher penalty.

6. Since the incident described, the Petitioner has not

been charged with any criminal conduct. The Petitioner is now

38 years of age, has worked at the insurance agency for the

past year, and has successfully completed classes and training

to become licensed.

7. To that end, the Petitioner complet ed an application

for licensure at the Department’s online website. According

to Petitioner the form was completed at an early hour and he

scanned the questions quickly.

8. One of the application questions asked the following:

Have you ever been convicted, found guilty,

or pled guilty or nolo contendere (no

contest) to a crime punishable 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 judgmen t of

conviction was entered?

9. The Petitioner’s response was “no.” According to the

Petitioner, he believed the question meant “had he been

punished with a year in prison for anything.” In fact, the

Petitioner has not been in prison for anything. He was,

however, charged with a crime that could have been punished

with one year in prison. He did, in fact, plead nolo

contendere to that crime. His correct answer should have been

“yes.”

10. When the Department ran the background checks for

licensure t he incorrect answer was discovered and the

Petitioner’s application was denied for giving a false

response.

11. Prior to his employment the Petitioner disclosed his

past to his employer. He did not attempt to hide any

information from the employer and was helpful in providing all

requested information to the Department when the issue of the

answer first arose. It took an exchange of several letters

before the Petitioner comprehended the information and

findings relied upon by the Department.

12. In den ying the licensure, the Department has deemed

the Petitioner’s incorrect response a material misstatement,

misrepresentation, or fraud in attempting to obtain the

license.

13. The Petitioner did not, however, understand the

question on the application form and did not understand that

he had incorrectly answered it. It is entirely possible that

the Petitioner’s comprehension of English (or lack thereof)

compounded the problem. Regardless, the Petitioner did not

intend to misstate his criminal past. Furth er, such an effort

would have been inconsistent with having disclosed the past to

his employer.

14. The Petitioner is hard - working and trusted by his

employer and will be considered a loss if the license is not

approved.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

(2004).

16. As the applicant, the Petitioner bears the burden of

proof in this case to establish he is entitled to the license

sought.

17. Section 626.611, Florida Statutes (2004), provides

in pertinent part:

The department shall 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 revoke the

eligibility to hold a license or

appointment of any such person, if it finds

that as to the applicant, licensee, or

appoin tee 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 misstatement,

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.

* * *

(13) Willful failure to co mply with, or

willful violation of, any proper order or

rule of the department or willful violation

of any provision of this code.

(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 juris diction of such

cases.

18. Rule 69B - 211.042(2) Florida Administrative Code,

provides, in part:

(1) General Policy Regarding Conduct Prior

to Licensure. The Department is concerned

with the law enforcement record of

applicants for the purpose of ascertaining

from those records whether the person would

represent a significant threat to the

public welfare if licensed under Chapter

626, Florida Statutes. It is no part of the

Department’s responsibilities, and the

Department does not attempt, to “penalize”,

“discipline”, or “punish” any person

concerning any conduct prior to licensure.

(2) Duty to Disclose Law Enforcement

Record. 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

disclosed to the Department on a previous

application submitted by the applicant.

(3) Policy Specificall y Concerning Effect

of Criminal Records.

(a) The Department interprets Sections

626.611(14) and 626.621(8), Florida

Statutes, which subsections relate to

criminal records, as applying to license

application proceedings. The Department

interprets those statutes as not limiting

consideration of criminal records to those

crimes of a business - related nature or

committed in a business context. More

specifically, it is the Department’s

interpretation that these statutes include

crimes committed in a non - busin ess setting,

and that such crimes are not necessarily

regarded as less serious in the license

application context than are crimes related

to business or committed in a business

context.

* * *

(4) 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, and 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 application will be denied

and a waiting period will be imposed before

the applicant may reapply for any license.

* * *

(8) Required Waiting Periods for a Single

Felony Crime. 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) before

licensure. All waiting periods run from

the trigger date.

(a) Class A Crime. The applicant will not

be granted licensure until 15 years have

pass ed since the trigger date.

19. In this case the Petitioner has demonstrated he is

trustworthy and fit to engage in the business of insurance.

He is a valued employee at the agency where he works.

Petitioner fully disclosed his criminal history to his

employer before the application was answered. He made no

attempt to conceal his criminal history that consisted of one

incident and cooperated with the Department when he was

questioned regarding the matter.

20. It is evident the Petitioner failed to accu rately

answer the application but did so out of confusion and error,

not in an attempt to evade the truth. Any “misstatement” was

unintentional and may have resulted from the Petitioner’s

flawed understanding of the criminal justice language used or

English in general. It is inconceivable that he would have

fully disclosed the criminal past to an employer and attempted

to withhold the same information from the Department.

21. The single criminal act occurred in 1988. By the

most stringent standard set forth in the Department’s rule, a

period of 16 years has elapsed without additional incident.

Moreover, at age of 38 the Petitioner has demonstrated a

maturity that in his youth evaded him. He made a poor

decision, took the consequences for that act, performed his

probation and, from all accounts, is ready to become a

responsible, valued general lines agent for his employer.

22. In this case the Petitioner has shown that he did

not realize he was incorrectly answering the question

regarding his crimina l history. He misread the application.

If a command of the English language is a requirement for

licensure the Department has not cited the Petitioner for that

deficiency. Accordingly, as the requisite time has run for

the crime committed in 1988, the Department should allow the

Petitioner to become licensed. No public interest is served

by requiring additional waiting time in this case.

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 approving the application of the

Petitioner.

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

Tallahassee, Leon County, Florida.

S

___________________________________

J. D. PARRISH

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 C lerk of the

Division of Administrative Hearings

this 28th day of January, 2005.

COPIES FURNISHED :

Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Alejandro S. Contreras

300 Northeast 12th Avenue, No. 405

Hallandale, Florida 33009

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 Financi al 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 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.