05-000755 Krista Rose Navarro vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, June 2, 2005.

Summary: Petitioner showed by extrinsic evidence that her answer was unintentional and was not an attempt to obtain a license by fraud or misstatement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRISTA ROSE NAVARRO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0755

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant t o notice, a hearing was held in the above - styled

case on May 3, 2005, by Stephen F. Dean, assigned Administrative

Law Judge of the Division of Administrative Hearings, in Panama

City, Florida.

APPEARANCES

For Petitioner: Krista Rose Navarro, pro se

111 Placido Place

Panama City Beach, Florida 32413

For Respondent: Dana M. Wiehle , Esquir e

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 3 2399 - 0333

STATEMENT OF THE ISSUE

Whether the Respondent properly denied the Petitioner's

application for licensure as a Resident All Lines Insurance

Adjuster for a material misstatement on her application?

PRELIMINARY STATEMENT

Th e Respondent denied the Petitioner's application for

licensure as a Resident Independent All Lines Insurance Adjuster

(05 - 20) by letter dated December 30, 2004. The grounds for

denial was that the Petitioner had made a material misstatement,

misrepresenta tion, or committed fraud in attempting to obtain

the license , which demonstrated a lack of fitness or

trustworthiness to engage in the business of insurance. The

Petitioner timely requested a formal hearing on the issue, and

the Respondent referred the ca se to the Division of

Administrative Hearings. The case was noticed for hearing, and

the hearing was held as noticed.

At the hearing, the Respondent introduced the application

filed by the Petitioner , together with its files pertaining to

the applica tion , to include the Petitioner's responses, and

certified records of the United States District Court, Central

District of California as Department's Exhibits 1 through 6.

The Petitioner testified in her own behalf and introduced two

exhibits. A Transcr ipt of the proceedings was filed on May 12,

2005. Both the parties filed post - hearing pleadings that were

read and considered.

FINDINGS OF FACT

1. The Petitioner, Krista Rose Navarro, filed an

application with the Respondent for licensure as a Resid ent

Independent All Lines Insurance Adjuster (05 - 20) by letter dated

December 30, 2004. This application was filed on line. As part

of that application the Petitioner answered, "no," to the

question:

Have you ever been convicted, found guilty,

or pled gu ilty or nolo contendere (no

contest) to a felony or crime punishable by

imprisonment of one (1) year or more under

the law of any municipality, county, state,

territory or country, whether or not

adjudication was withheld or a judgment of

conviction was en tered?

2. The Respondent conducted a criminal records file check

that revealed that the Petitioner had entered a plea to a count

of mail fraud in the Federal District Court for the Central

District of California in 1986. The records of this procee ding

under the seal of the records custodian of the National Archives

and Records Administration were introduced as Department's

Composite Exhibit 2.

3. Based upon this information, the Respondent determined

that (1) the period an applicant would h ave to wait to be

licensed for the offense involved was 15 years, and that this

had run; and (2) the Petitioner's failure to disclose the

offense resulted in extending the licensure eligibility date

until December 30, 2005. Based upon this latter determin ation,

the Respondent denied the Petitioner 's application for

licensure.

4. The Petitioner testified that the portion of the

question that stated, "pled guilty or nolo contendere (no

contest) to a felony or crime punishable by imprisonment of one

(1) year or more under the law" was confusing to her. She took

the question to require reporting an offense for which one was

imprisoned for a year or more, and that she had not

intentionally failed to reveal the offense.

5. In support of this contenti on, the Petitioner pointed

out that she was currently a licensed real estate broker and

held this license for ten years, and had revealed the subject

offense and plea on the application for that license. She also

introduced a letter from her child's schoo l, the Petitioner's

Exhibit 2, which indicated that the Petitioner had shared the

infor mation about her plea with the p rincipal of the school as

part of the vetting of parental chaperones. The Petitioner

passed that vetting process.

6. Although the underlying facts of the offense to which

the Petitioner entered the plea are not relevant to the matters

under consideration, they show the Petitioner engaged in a

telephone marketing ploy in which businesses and offices were

called and copier products wer e offered for sale at current

prices before an anticipated price increase. Although not

stated, an impression was given that the salesperson was a

representative of the supplier usually used by the office being

called, and the "price hike" was not factual , but a sales

gimmick. The "handling charges" and similar fees in these

transactions were very high, although the products were

delivered to the purchasers. Such practices are specifically

prohibited today, but were not specifically proscribed at the

ti me.

7. The Petitioner was cooperative with authorities when

arrested, and is now remorseful about her conduct at the time

considering this is an embarrassing epiphany in her life;

however, she has fully disclosed the facts as indicated above

when sh e perceived it was necessary.

8. The Petitioner has her own real estate brokerage; has

never been the subject of disciplinary action by those licensing

authorities; and is a long - time resident of her community. She

is married, has two children, and takes part volunteering at her

children's school, as indicated above.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

hearing pursuant to Section 120.569 and Section 120. 57(1),

Florida Statutes.

10. The Petitioner, as the applicant, bears the ultimate

burden of persuasion in this case. See Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

11. Section 626.611, Florid a Statutes, provides generally

that the D epartment shall deny the application of any applicant

who lacks the qualifications for licensure to include making a

material misstatement, misrepresentation, or fraudulent

statement in attempting to obtain a licens e and demonstrating a

lack of fitness or trustworthiness to engage in the insurance

business.

12. The Respondent determined that the Petitioner's

conduct in this instance did not warrant consideration of the

original offense as disqualifying because of the passage of

time. See Department's Exhibit 4. The denial is based solely

on the failure to disclose the offense. The narrow issue is

whether the Petitioner intended to mislead the Respondent in an

attempt to obtain licensure. See Munch v. Departm ent of

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

This is a question of fact to be determined by the trier of

fact. See Walker v. Department of Business and Professional

Regulation , 705 So. 2d 652, 655 (Fla. 5th DCA 1998).

13. Ha ving heard the testimony of the Petitioner and her

candor in discussing the activities leading to her being charged

with fraud and entering a plea to the offense, considering her

having disclosed the offense in her application for a real

estate license, an d considering her m aking this matter known to

the p rincipal of her daughter's school in relationship to be

approved as a chaperone, it is concluded that the Petitioner did

not intend to mislead the Respondent.

14. Although it is not specifically r elevant to the issue

in this case, the Petitioner's holding another similar license

which requires great honesty in its dealings, her not having

been the subject of discipline in that profession, and her

stable personal life indicate an individual who has learned from

a youthful transgression and amended her life to build a solid

business. Nearly half of the time the Petitioner would have to

wait to reapply has passed, and more time will pass before a

final order is entered. Considering the absence of her intent

to mislead and her good character, it is recommended that the

Respondent issue the license for which the Petitioner applied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Department of Financial Services issue the

Petitioner as a R esident I ndependent A ll L ines I nsurance

A djuster.

DONE AND ENTERED this 2nd day of June , 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.d oah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June , 2005.

COPIES FURNISHED :

Krista Rose Navarro

111 Placido Place

Panama City Beach, Florida 32413

Dana M. Wiehle , Esqu ire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0 300

Carlos G. Muniz, 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 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.