05-000168 Timothy Myles vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, August 9, 2005.

Summary: Petitioner admitted a plea of nolo contendere to a disqualifying offense. Therefore, although he was able to show mitigation under Florida Administrative Code Rule 69B-211.042, he was disqualified for 11 years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIMOTHY MYLES , )

)

Petitioner, )

)

vs. ) Case No. 05 - 0168

)

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was he ard pursuant to notice on May 2 , 2005, by

Stephen F. Dean, assigned Administrative Law Judge of the

Division of Administrative Hearings, by video - teleconference

between Tallahassee , Florida , and Jacksonville, Florida.

APPEARANCES

For Petitioner : Timothy Myles , pro se

7379 Petrell Drive

Jacksonville, Florida 32222

For Respondent: Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue to be determined is whether Petitioner has

demonstrated his eligibility for licensure.

PRELIMINARY STATEMENT

On or about June 13, 2004, Pe titioner filed an application

with the Department of Financial Services (Department) seeking

licensure as a Resident Life Including Variable Annuity and

Health Insurance Agent. By letter dated August 26, 2004, the

Department advised Petitioner that his ap plication was denied

because of his failure to divulge his criminal history in his

application, and because of his failure to meet the waiting

period applicable to the crime in question. Petitioner timely

requested a hearing regarding that denial, but fai led to provide

all of the information called for by the Florida Administrative

Code model rules. The Department sent Petitioner a letter

requesting clarification, and Petitioner filed a more detailed

request with the Department. The cause was thereafter

transferred to the Division of Administrative Hearings to

conduct an evidentiary proceeding.

Petitioner testified on his own behalf. Respondent offered

no witness testimony, and Respondent's Exhibits numbered 1 - 6

we re admitted into evidence.

After the filing of the transcript, t he Department filed a

post - hearing submission, which has been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Department of Financial Services

("Department"), is the state agency re sponsible for the

licensure of insurance agents in the State of Florida, pursuant

to Chapter 626, Florida Statutes.

2. On June 13, 2004, Petitioner filed an online

application with Department of Financial Services seeking

licensure as a R esident L ife I nc luding V ariable A nnuity and

H ealth I nsurance A gent.

3. The online application form filled out by Petitioner

for the license at issue in this proceeding included the

following question:

[h]ave you ever been convicted, found

guilty, or pled guilty or nolo contendere

(no contest) to a felony or 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 judgment of

conviction was entered?

4. Petitioner answered this question in the negative.

5 . The criminal history records obtained by the Department

during the application process revealed that on February 8,

2000, Petitioner was arrested on one felony count of child

abuse. According to the information filed against Petitioner,

the circumstances that resulted in the arrest occurred on

November 28, 1999. More specifically, Petitioner was accused of

striking his then - girlfriend ' s, now wife's, 15 - year - old daughter

with a belt on her buttoc ks for disciplinary purposes, resulting

in bruises. Petitioner pled nolo contendere to one count of

Child Abuse. Adjudication was withheld, and Petitioner was

placed on one - year 's probation, ordered to complete 50 hours of

community service, and required to enroll in and successfully

complete both a parenting skills class and an anger control

program.

6 . On August 26, 2004, the Department sent Petitioner a

Notice of Denial of his application. The Department's denial is

based both on Petitioner's answer to the criminal history

question contained in the application, and on Petitioner's

failure to meet the waiting period set forth in the Department's

rules for the crime in question.

7 . Petitioner testified at hearing. T he circumstances

leading up to his arrest and plea involved the disciplin ing of

his then - girlfriend's, now wife's. 15 - year - old daughter, who m

Petitioner describe d as "rebellious." He and his wife also have

two sons.

8 . Petitioner testified at hearing regarding his answer to

the question on his criminal history. He inter preted the

question to be related to offenses relating to insurance and

business matters, and not to include the offense of child abuse .

His testimony is credible given the provisions of Chapter 626,

Florida Statutes.

9 . Petitioner retired honorably from the U.S. Nav y in

April of 2000 after 20 years of service.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this case

pursuant to Section s 120 .57 (1) and 120.569 , Florida Statutes.

1 1 . 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 tha t he meets the relevant

statutory criteria in order to satisfy this burden.

1 2 . In its Notice of Denial, the Department has alleged

that Petitioner violated various provisions of the Florida

Insurance Code by failing to disclose his criminal history in

h is application. 1/ Section 626.611, Florida Statutes , states:

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 e xist:

(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 ap pointment.

* * *

(7) Demonstrated lack of fitness o r

trustworthiness to engage in the business of

insurance.

* * *

(14) Having been found guilty of 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 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 s uch cases.

1 3 . Section 626.621, Florida Statutes, provides that the

Department may in its discretion deny the licensure of an

applicant where the denial is not mandatory under Section

629.611 , supra .

1 4 . Florida Administrative Code Rule 69B - 211.042(2) makes

it clear that an applicant must disclose a criminal history :

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, addi tional, 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.

1 5 . The answer to th e criminal history question on

Petitioner's application for licensure was incorrect. Based on

Petitioner's answer to the criminal history question, the

Department charges and argues that Petitioner made a "[m]aterial

misstatement, misrepresentation, or fraud in . . . [his] attempt

to obtain the license or appo intment," and that by providing

incorrect information Petitioner has demonstrated a "lack of

fitness or trustworthiness to engage in the business of

insurance." See § 626.611 (2) and (7), Fla. Stat.

1 6 . In order to overcome this allegation, Petitioner mu st

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

criminal history question was not true or that his untrue answer

was unintentional. Munch v. Department of Professional

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

testified t hat, base d on his reading of the application as a

whole, the criminal history question was directed at insurance -

related matters, and that at the time he answered the question,

he felt that his answer was correct.

17. Petitioner's testimony was cre dible. The credibility

of such testimony is a question for the trier of fact. See

Walker v. Department of Business and Professional Regulation ,

705 So. 2d 652, 655 (Fla. 5th DCA 1998) (the trier of fact is

not bound to believe any witness, even a witness who is

uncontradicted) (Dauksch, J., concurring specially); Hernandez

v. AMISUB(American Hospital), Inc. , 714 So. 2d 539 (Fla. 3rd DCA

1998), pet . rev . den . 728 So. 2d 200 (Fla. 1998) (intentional

misrepresentation can be shown by recklessness or careless ness

as to the truth of the matter asserted).

1 8 . The Department's also asserts that , regardless of

whether Petitioner attempted to obtain the license in question

through material misstatement, misrepresentation, or fraud, he

is also ineligible for lic ensure because he has not met the

waiting period established in the Department's rules for the

crime to which he pled.

1 9 . Section 626.611 (14) , Florida Statutes, states, that

the D epartment shall deny the license or appointment of any

agent if it finds t he applicant has been found guilty of, or

pleaded guilty or nolo contendere to a felony or a crime

punishable by imprisonment of one year or more under the law of

the United States of America or any state thereof without regard

to whether a judgment of con viction was entered by the court.

20 . The Department promulgated Florida Administrative Code

Rule 69B - 211.042 , which states:

(1) General Policy Regarding Conduct Prior

to Licensure. The Department is concerned

with the law enforcement record of

applica nts 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 . . . .

* * *

(3)(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 na ture or

committed in a business context. More

specifically, it is the Department's

interpretation that these statutes include

crimes committed in a non - business setting,

and that such crimes are not necessarily

regarded as less serious in the license

appl ication context than are crimes related

to business or committed in a business

context.

2 1 . Florida Administrative Code Rule 69B - 211.042(21) (r) ,

clarifies the felony to which Petitioner pled nolo contendere as

a "Class 'A' crime . " Under the Departmen t's rules, a Class A

crime carries a waiting period of 15 years from the trigger

date. See Fla. Admin. Code R. 69B - 211.042(8)(a).

2 2 . According to Florida Administrative Code Rule 69B -

211.041(11), the trigger date in this case is the date on which

an ap plicant was found guilty, or pled guilty, or pled nolo

contendere to a crime. Petitioner pled nolo contendere on

April 7, 2000; therefore, the initial waiting period of 15 years

is applied from that date.

2 3 . Petitioner did show at hearing that he was e ntitled to

mitigation of the waiting period. The maximum mitigation is

limited by rule to four years . B ased upon the Department's

calculation, Petitioner's waiting period for the child abuse

plea, without mitigation, runs until April 7, 2015. The genera l

mitigation provision does not provide for the number o f years

that may be mitigated. Based upon Petitioner's explanation of

the basis for the charges brought against him, the maximum

allowable mitigation of four years is recommended. Given

mitigation o f four years, the minimum date would be April 7,

2011.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

It is recommended that Petitioner's application be denied

with leave to reap ply o n April 7, 2011.

DONE AND ENTERED this 9th day of August , 2005, in

Tallahassee, Leon County, Florida.

S

__

STEPHEN F. DEAN

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 9th day of August , 2005.

ENDNOTE

1/ The Department has al so alleged that Petitioner failed to meet

the waiting period applicable to the crime in question. That

allegation is discussed infra .

COPIES FURNISHED :

Timothy My les

7379 Petrell Drive

Jacksonville, Florida 32222

Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Honorable Tom Gallagher

Chief Financial Officer

Departm ent 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 SUBMI T 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.