04-004035 Dennis Wayne Greaves, Jr. vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, March 1, 2005.

Summary: Petitioner was not responsible for the incorrect answers contained in applications submitted by his employer on his behalf. Recommend rescind the denial of the licensure applications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DENNIS WAYNE GREAVES, JR., )

)

Petitioner, )

)

vs. ) Case No. 04 - 4035

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on

January 25, 2005, in St. Augustine, Florida, before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Dennis Wayne Greaves, Jr., pro se

101 Meadows Avenue

St. Augustine, Florida 32804

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue is whether Respondent properly denied

Petitioner's applications for licensure as a temporary resident

life and health insurance agent and a resident life, variable

annuity and health insurance agent.

PRELIMINARY STATEMEN T

In a Notice of Denial letter dated August 12, 2004,

Respondent, Department of Financial Services (Department) denied

Petitioner's applications for licensure as a temporary life and

healt h agent and a resident life, variable annuity and health

agent. The Notice of Denial cited as authority Section

626.611(1),(2),(7), and (14), Florida Statutes, and Florida

Administrative Code Rule 69B - 211.042, alleging that he failed to

disclose criminal history and falsely did not acknowledge that

criminal history. Petitioner disputed the Department's

determination and filed a timely request for a formal

administrative proceeding.

Respondent referred this case to the Division of

Administrative Hearings o n November 5, 2004. A Notice of

Hearing was issued scheduling the hearing for January 25, 2005.

On January 24, 2005, Respondent filed an unopposed Motion

for Leave to Amend Denial Letter, together with an Amended

Notice of Denial letter. The Amended Not ice of Denial relates

only to the alleged failure of Petitioner to disclose a criminal

offense. The Motion was considered at the commencement of the

hearing and was granted. The case proceeded based upon the

Amended Notice of Denial.

At hearing, Petiti oner testified on his own behalf and

presented the deposition testimony of Claves Sellers.

Petitioner's Exhibit numbered 1 was admitted into evidence.

Respondent presented the testimony of Petitioner. Respondent's

Exhibits numbered 1 through 7 were admi tted into evidence.

A one - volume Transcript of the proceeding was filed on

February 16, 2005. The Department timely filed a Proposed

Recommended Order which has been considered in the preparation

of this Recommended Order. Petitioner did not file a po st -

hearing submission.

All citations are to Florida Statutes (2004) unless

otherwise indicated.

FINDINGS OF FACT

1. Petitioner applied for licensure as a temporary

resident life and health insurance agent in May 2004. In June

2004, a second application was filed on behalf of Petitioner

seeking licensure as a resident life, variable annuity and

health insurance agent.

2. On May 7, 2004, Petitioner filed out an employment

application with American International Group Company (AIG)

seeking to become an insurance sales agent with the company. On

his employment application, Petitioner disclosed to AIG that he

had a criminal history, and included a written explanation of

the circumstances surrounding the crime with his application.

3. The criminal history disclosed by Petitioner arose from

an incident that occurred in the State of Georgia in 1991. On

September 18, 1991, Accusation No. 91 - 3119 was filed against

Petitioner in the case of State of Georgia v. Dennis Wayne

Greaves in the Superior Court of Cobb County, Georgia, charging

him with violation of the Georgia Controlled Substances Act in

which he was charged with intent to possess more than one ounce

of marijuana. Petitioner entered a negotiated plea to this

charge on October 29, 1991, and the court deferred adjudication

of guilt, sentencing Petitioner to First Offender Treatment and

placing him on five years' probation. On October 25, 1993,

Petitioner was found to have violated probation, at which time

the Superior Court of Cobb County, Georgia, ent ered an

adjudication of guilt against Petitioner in Case No. 91 - 3119.

4. At a point in time that is not clear from the record,

Petitioner was hired by AIG to work as a sales agent out of the

company's St. Augustine and Jacksonville offices. On May 28,

20 04, an on - line application for a temporary resident life and

health agent was filed with the Department. The application

contained the question, "Have you ever been convicted, found

guilty, or pled nolo contendre (no contest) to a crime

punishable by impr isonment of one (1) year or more under the

laws of any . . . state . . . , whether or not adjudication was

withheld or a judgment of conviction was entered?" The

application form reflected a "no" answer.

5. However, the application was not filled out by

Petitioner. It was filled out by an individual or individuals

in the Jacksonville AIG office. Petitioner was not present when

the on - line application was filled out or when it was filed.

6. Shortly after the online application for temporary

license was filed, a "Temporary Appointment" form was submitted

to the Department by AIG on behalf of Petitioner. The form

included the question, "[h]as the applicant ever been convicted,

found guilty, or pleaded guilty or nolo contendre (no contest)

to a felony." D espite the fact that Petitioner had disclosed

his criminal history to AIG on his application for employment,

the question was answered in the negative. Again, Petitioner

did not participate in the completion of the "Temporary

Appointment" form which was s igned by the General Manager of

AIG's Jacksonville office.

7. In addition to the temporary license, Petitioner needed

to make application for and receive a permanent license in order

to carry out his job at AIG. Petitioner and his immediate

supervisor in AIG's St. Augustine office attempted to file an

online application for a permanent license. However, they were

unable to submit the online application because Petitioner had

not yet passed the required 40 - hour pre - licensing class, and

could not, therefor e, supply a "date completed" answer on the

application. In the process of filling out the application,

Petitioner answered the criminal history question in the

affirmative.

8. After receiving notification that the permanent license

application could not be filed until Petitioner passed the pre -

licensing course, someone in the AIG Jacksonville office

completed the online application for Petitioner by supplying

what apparently was a guess or estimated completion date for the

course. Again, Petitioner was n ot present when this second

application was completed and filed with the Department. In

response to the criminal history question, a "no" answer was

again supplied to the Department.

9. Petitioner's testimony regarding the instances in which

his employe r incorrectly answered the criminal history question

incorrectly is consistent, credible, and supported by

corroborating evidence. That is, he did not answer the criminal

history questions falsely. In the instances when he personally

filled out applicati ons, he answered the questions regarding his

criminal history truthfully. In the instances that an incorrect

answer was submitted on the application, those answers were

submitted by others without his knowledge and contrary to the

information he had given to his employer. Accordingly,

Petitioner did not make a material misstatement,

misrepresentation, or commit fraud in applying for licensure

with the Department.

10. The Department's Amended Notice of Denial is based

solely on his failure to acknowledge his criminal history on the

applications in question.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

12. Petitioner is an applicant for licensure as an

insurance agent in the State of Florida. Accordingly, as the

party asserting the affirmative of an issue before this

administrative tribunal, Petitioner has the burden of proof.

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

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

facts by a preponderance of the evidence that the Department

improperly denied his application for licensure. Department of

Banking and Finance v. Osborne Stern Company , 670 So. 2d 932

(Fla. 1996).

13. Section 626.611 reads in pertinent part as follows:

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 of the

qualifications for the license or

appointment as specified in this code.

(2) Material misstatement, mis -

representation, or fraud in obtaining the

license or appointment or in attempting to

o btain the license or appointment.

* * *

(7) Demonstrated lack of fitness or trust -

worthiness to engage in the business of

insurance.

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

in pertinent part as follows:

Every applicant shall disc lose 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 dis closed to the

Department on a previous application

submitted by the applicant.

15. The answers to the criminal history questions on

Petitioner's applications were incorrect. Based upon these

answers, the Department determined that Petitioner made a

material misstatement, misrepresentation, or committed fraud in

his attempt to obtain his license. Further, the Department

determined that by doing so, Petitioner had demonstrated a lack

of fitness or trustworthiness to engage in the business of

insurance .

16. Because the answers were indeed incorrect, Petitioner

must prove that he did not have knowledge that his answer to the

criminal history question was not true and that his untrue

answer was unintentional. Munch v. Department of Professional

Regulat ion , 592 So. 2d 1136 (Fla. 1st DCA 1992). Petitioner has

met this burden.

17. Petitioner was not responsible for the incorrect

answers contained in the applications submitted by his employer

on his behalf and had no knowledge that his employer had done

so. Therefore, he did not make a material misstatement,

misrepresentation, or commit fraud in attempting to obtain

licenses. For the same reasons, he did not demonstrate a lack

of fitness or trustworthiness to engage in the business of

insurance.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Department enter a final order rescinding its

Amended Notice of Intent to Deny Petitioner's applications for

licensure an d to grant such licensure when all requirements for

licensure have been met.

DONE AND ENTERED this 1st day of March, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Divisio n 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 1 st day of March, 2005.

COPIES FURNISHED :

Dana M. Wiehle, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0330

Dennis Wayne Greaves, Jr.

101 Meadows Avenue

S t. Augustine, Florida 32804

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 Le vel 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.