05-001240 Alia Sossous vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, August 9, 2005.

Summary: Petitioner failed to include a child abuse felony on his application. Recommend denial of Petitioner`s application for a 15-year period before he may re-apply as per Florida Administrative Code Rule 69BB-21.042.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALIA SOSSOUS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1240

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 7, 20 05, a final administrative hearing in this

case was held in Tampa, Florida, before Fred L. Buckine,

Administrative Law Judge, Division of Administrative hearings.

APPEARANCES

For Petitioner: Alia Baptiste Sossous, pro se

10310 Birdwa tch Drive

Tampa, Florida 33647

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 eligibility for licensure as a resident life,

including variable annuity, insurance agent.

PRELIMINARY STATEMENT

On or about October 4, 2004, Petitioner, Alia Sossous,

filed an application with Responden t, Department of Financial

Services (Department) , seeking licensure as a resident life,

including variable, annuity insurance agent. By letter dated

December 16, 2004, the Department a dvised Petitioner that her

application was denied because of her failure to divulge her

criminal history in her application and because of her failure

to meet the waiting period applicable to the crime in question.

Petitioner timely requested a hearing re garding that denial, but

failed to provide all the information called for by the model

rules. The Department sent Petitioner a letter requesting

clarification, and Petitioner filed a more detailed request t o

the Department. This cause was thereafter tran sferred to the

Division of Administrative Hearings to conduct an evidentiary

proceeding.

At the June 7, 2005, hearing , Petitioner testified on her

own behalf and offered no exhibits into evidence. The

Department made inquiry of Petitioner. The Department 's

Exhibits 1 through 6 were admitted into evidence.

The Transcript of the hearing was filed on June 6, 2005.

Petitioner did not file a proposed recommended order. The

Proposed Recommended Order filed by Respondent has been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the observation and the demeanor of the

witnesses while t estify ing, documentary material received in

evidence, stipulation of the parties, and evidentiary rulings

during the hearings, and the entire re cord complied herein, the

following relevant, material, and s ubstantial facts are

determined:

1. The Department is the state agency responsible for the

licensure of insurance agents in the State of Florida, pursuant

to Chapter 626, Florida Statutes (2004) .

2. On October 4, 2004, Petitioner filed an online

application with the Department seeking licensure as a resident

life, including variable annuity, insurance agent.

3. The online application form completed by Petitioner for

the licensure at issue inclu ded the following question:

Have 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 c ountry, whether or not

adjudication was withheld or a judgment of

conviction was entered?

Petitioner answered this question in the negative.

4. On November 9, 2004, the Department sent a letter to

Petitioner, requesting she provide, among other things,

c ertified copies of court documents relating to her 1999 arrest

in Hillsborough County, Florida, for child abuse.

5. Petitioner found the above question to be confusing and

in an attempt to be completely forthcoming, she sent the

Department copies of two d ocuments: (1) an August 9, 2004,

letter to Petitioner from the Department of Corrections and

(2) Petitioner 's two - page printout regarding the

Probation/Parole record. The Department received the reference d

documents on November 23, 2004.

6. Petitioner' s criminal history established a

November 18, 1999, arrest on two felony counts of aggravated

child abuse. Petitioner had used an electric cord to spank her

daughter as punishment for stealing and had left m arks on the

child as a result. The two - count i nformation was filed in the

Thirteenth Judicial Circuit, Hillsborough County Circuit Court,

Case No. 99 - 20373, on January 27, 2000.

7. On December 13, 2000, Petitioner entered a plea of

guilty to one felony count of child abuse, as set forth in Count

II o f the i nformation, and the second count pending against

Petitioner was nolle prossed . The d isposition of the case was

that a djudication of guilt be withheld on the one felony count

of child abuse and that Petitioner be placed on four years

probation and r equired, inter alia , to complete parenting and

anger management classes, which she did.

8. Circumstances that resulted in Petitioner's plea

involved her method of disciplining her daughter. Petitioner

was born and grew up in Haiti and her method of punis hment,

spanking her daughter with electric cord, is culturally

accepted. Spanking with electric cord leaves bruises and marks

on the child spanked.

9. Petitioner's testimony indicates that she learned

through her anger management classes that the Haitian method of

punishment is not considered appropriate, and other nonphysical

methods would bring about desired results.

10. Petitioner now has four children. She is employed by

Lakeshore Villas, a nursing home where she is responsible for

caring for elderl y persons, as a full - time Certified Nursing

Assistant (CNA). To acquire her CNA license from the Department

of Health (D OH ), Petitioner testified that she reported her

criminal history to the DOH, and no disciplinary action was

taken by the agency because of her plea.

11. Even though the answer to the criminal history

question on her application for licensure was not correct,

circumstances evident from evidence of record reveals that

Petition e r, in fact, disclosed her criminal history to the

Department pr ior to the Department's specific inquiry about that

history. She testified that her "no" answer on the application

was because she spent only two days in jail. Subsequently

realizing the possibility of a misunderstanding, Petitioner,

before a request by the Department, mailed documents to the

Department that disclosed her criminal history.

12. Viewed in the totality of circumstances, Petitioner's

voluntary disclosure of her criminal history negates any

reasonable inference or conclusion that Petitioner m ade an

intentional "[m]aterial misstatement, misrepresentation, or

fraud in . . . [her] attempt to obtain the licensure or

appointment," Subsection 626.611(2), Florida Statutes (2004).

13. Likewise, the simple fact that Petitioner (through

misunderstandin g) incorrectly answered the application question

does not show that Petitioner's conduct demonstrated a "lack of

fitness or trustworthiness to engage in the business of

insurance."

14. Notwithstanding the foregone findings, there is no

evidence that Petit ioner was under the age of 21 years when the

crime was committed.

15. There is no written documentation from the prosecuting

attorney evidencing the belief that Petitioner posed n o

significant threat to public welfare if licensed.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

17. Petitioner, as the party seeking affirmative relief,

has the burden of proof in this proceedi ng. Petitioner must

show by a preponderance of the evidence entitlement to the

relief sought in the request for fair hearing. Florida

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

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

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

Petitioner must show she meets the relevant statutory criteria

in order to satisfy this burden.

18. The Department's Notice of Denial alleged violation of

the Florida Insurance Code by fai lure to disclose current

criminal history in the application made to the Department.

Section 626.11, Florida Statutes (2004), provides:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

continue the license or appointm ent 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 appointee any one

or more of the foll owing 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 fr aud 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.

* * *

(14) Having been found guilt y 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 jurisdiction of

such cases.

Section 626.621, Florida Statutes, in pertinent part, states:

The department may, in its discretion, deny

an application for, suspend, r evoke, or

refuse to renew or continue the license or

appointment of any applicant, agent,

adjuster, customer representative, service

representative, or managing general agent,

and it may 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 appointee any one or more of the

following applicable grounds exist under

circumstances for which such denial,

suspension, revocation, or refusal is not

mandatory under s. 626.611 :

* * *

(8) Having been found guilty of or having

pleaded guilty or n olo 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, without

regard to whether a judgment of conviction

has been ente red by the court hav ing

jurisdiction of such cases.

19. Rules promulgated provide guidelines and waiting

periods for applicants with criminal histories and for

determining fitness and trustworthiness for licensure. These

guidelines and waiting periods ar e implemented per directions

contained in Florida Administrative Code Rule 69B - 211.042 that,

in pertinent part, provide s that:

(1) General Policy Regarding Conduct Prior

to Licensure. The Department is concerned

with the law enforcement record of appli cants

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 subsection 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 o r committed in a

business context. More specifically, it is

the Department's interpretation that these

statu t es include crimes committed in a non -

business setting, and that such crimes are

not necessarily regarded as less serious in

the l icense application context than are

crimes related to business or committed in a

business context.

20. Pursuant to Florida Administrative Code Rule 69B -

211. 042(21), the felony to which Petitioner pled guilty is

classified as a "Class A " by the Department . See Fla. Admin

Code R. 69B - 211.042(21)(r) . Under the Department's rules, a

Class A c rime carries a waiting period of 15 years from the

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

A crimes are additionally classified by the Departme nt in its

rules as crimes of moral turpitude, therefore invoking the

mandatory provisions of S ubs ection 626.611(14) , Florida Statutes

(2004) . See Fla. Admin. Code R . 69B - 211.042(21) ("The

Department finds that each felony crime listed in this

subsection i s a crime of moral turpitude . ")

21. According to Florida Administrative Code Rule 69B -

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

an applicant was found guilty, or pled guilty, or pled nolo

contendere to a crime. Petitioner p led guilt y on December 13,

2000; therefore, the initial 15 - year waiting period is applied

from December 13, 2000.

22. Review of the application in question reveal ed that

Petitioner is not entitled to mitigation of the 15 - year waiting

period. See Fla. Admin. Code R . 69B - 211.042(10) . Petitioner's

waiting period for the crime of child abuse runs until

December 13, 2015.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Financial Services enter

a final order finding that Petitioner did not attempt to obtain

the license at issue through material misstatement,

misrepresentation or fraud, but that Petitioner has not met the

15 - year mandatory waiting period applicable to her criminal

history and is, therefore, ineligible for licensure pursuant to

Subsection 626.611(14), Florida Statutes (2004), and denying

Petitioner's request for relief.

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

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 th e Clerk of the

Division of Administrative Hearings

this 9th day of August , 2005 .

COPIES FURNISHED :

Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399

Alia Baptiste Sossous

103 10 Birdwatch Drive

Tampa, Florida 33647

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Carlos G. Muniz, General Counsel

Department of Financial Services

The C apitol, Plaza Level 11

Tallahassee, Florida 32399 - 030 7

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.