05-001241 Peter J. Soto vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, July 19, 2005.

Summary: Petitioner`s failure to disclose his arrest on the application was a material misrepresentation that evinced a lack of fitness to engage in the business of insurance. Recommend that Respondent`s application for a license be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER J. SOTO, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1241

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrati ve Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case, on June 8, 2005, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Peter J. Soto, pro se

1402 8 Island Bay Drive, Apartment 103

Orlando, Florida 32828

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 in this proceeding is whether Respondent should

deny Petitioner's application for licensure as a general lines

insurance agent on the grounds that Petitioner was convicted of

a crime of moral turpitude tha t is punishable by more than one

year of imprisonment and committed a material misstatement or

misrepresentation within the meaning of Subsections 626.611(2)

and (14), and 626.621(8), Florida Statutes (2003), and Florida

Administrative Code Rule s 69B - 211.0 42(21)(s) and 69B - 211.042(2).

PRELIMINARY STATEMENT

On June 23, 2004, Petitioner submitted a license application

to Respondent. By letter dated January 20, 2005, Respondent

notified Petitioner that Respondent proposed to deny the license

application. Pet itioner timely requested an administrative

hearing, and Respondent referred the matter to DOAH to conduct the

administrative hearing.

The ALJ conducted the hearing by videoconference. Petitioner

and the court reporter participated in the hearing in Orland o,

Florida. Respondent and the ALJ participated by videoconference

from Tallahassee, Florida.

At the hearing, Petitioner testified and submitted no

exhibits for admission into evidence. Respondent presented the

testimony of Petitioner and submitted six e xhibits for admission

into evidence. The identity of the witnesses and exhibits and

any attendant rulings are reported in the one - volume Transcript

of the hearing filed with DOAH on June 20, 2005.

Respondent timely filed its proposed recommended order

(PR O) on July 1, 2005. Petitioner did not file a PRO.

FINDINGS OF FACT

1. Respondent is the state agency responsible for the

licensure of insurance agents in the State of Florida, pursuant

to Chapter 626, Florida Statutes (2004). On June 23, 2004,

Petition er electronically filed (on - line) a completed

application for licensure as an agent authorized to sell

resident life, variable annuity, and health insurance (the

license).

2. In the on - line application, Petitioner answered "no" to

the following question :

[i]n the past 12 months, have you been

arrested, indicted, or had an Information

filed against you or been otherwise charged

with a crime by any law enforcement

authority anywhere in the United States

. . . ?

3. On May 19, 2004, Petitioner was arres ted in New York

for grand larceny, a third degree felony in that state. The

allegations were that Petitioner received unemployment benefits

from the State of New York after Petitioner found employment.

4. The State of New York eventually convicted Petiti oner

on one count of grand larceny in the third degree. The sentence

placed Petitioner on probation for five years and required

Petitioner to pay restitution in the amount of $11,573.57.

Petitioner is not scheduled to be released from probation until

Dec ember 1, 2009.

5. Petitioner's failure to disclose the arrest in New York

is a material misstatement within the meaning of Subsection

626.611(2), Florida Statutes (2003). The arrest in New York

occurred within approximately 35 days of the date that

Peti tioner submitted the application. A preponderance of the

evidence does not support a finding that the failure to disclose

the criminal history on the application was inadvertent.

6. Petitioner knew, or should have known, the importance

of accurate an swers to questions on the license application.

The final section of the on - line application, entitled

"Applicant Affirmation Statement" contained the following

language:

Whoever knowingly makes a false statement in

writing with the intent to mislead a pub lic

servant in the performance of his/her

official duty shall be guilty of a

misdemeanor of the second deg r ee.

* * *

Under penalties of perjury, I declare that I

have read the foregoing application for

license and that the facts stated in it are

true . I understand that misrepresentation

of any fact required to be disclosed through

this application is a violation of The

Florida Insurance and Administrative Codes

and may result in the denial of my

application and/or the revocation of my

insurance licen se(s).

7. The material misstatement or misrepresentation of the

arrest history of Petitioner was an intentional, false

statement. Petitioner knew that the answer he supplied in the

application was not true. The failure to disclose the arrest

was a reck less and careless act. The false statement evinces a

"lack of fitness or trustworthiness to engage in the business of

insurance" within the meaning of Subsection 626.611(7), Florida

Statutes (2003).

8. Petitioner has now been convicted of a felony that i s a

crime of moral turpitude. The preponderance of evidence does

not support a finding that the crime is punishable by

imprisonment for one year or less.

9. Petitioner is on probation through December 1, 2009.

After a final order denying the applicat ion, Petitioner is

subject to the presumption and waiting periods prescribed in

Florida Administrative Code Rule 69B - 211.042(6).

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over the parties and subject

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

(2003). DOAH provided the parties with adequate notice of the

administrative hearing.

11. 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 (F la. 1st DCA 1981).

Petitioner must show by a preponderance of the evidence that he

satisfied relevant statutory criteria for the license.

Petitioner failed to satisfy his burden of proof.

12. Petitioner was convicted of a crime of moral turpitude

defi ned in Florida Administrative Code Rule 69B - 211.042(21)(s). A

preponderance of the evidence does not support a finding that the

crime is punishable by imprisonment of one year or less.

13. The denial of the application is mandatory. In relevant

part, Subsections 626.611(2) and (14), Florida Statutes (2003),

provide that Respondent "shall deny" the application of Petitioner

if Petitioner has been found guilty of a crime of moral turpitude

that is punishable by more than one year imprisonment.

14. Subs ection 626.621(8), Florida Statutes (2003), also

gives Respondent discretionary authority to deny the license

application upon a finding that Petitioner has been convicted of a

crime that is punishable by more than one year of imprisonment. A

preponderanc e of the evidence does not support a finding that the

denial of the license is an abuse of discretion.

15. The failure to disclose a recent arrest in the

application was a material misstatement within the meaning of

Subsections 626.611(2) and (14), Flori da Statutes (2003). Both

subsections require Respondent to deny the application of

Petitioner on that ground.

16. Petitioner's failure to disclose his criminal history

on the application also violated Florida Administrative Code

Rule 69B - 211.042(2). In relevant part, Florida Administrative

Code Rule 69B - 211.042(2) provides:

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.

17. The material misstatement on the application evidenced

a reckless and careless disregard of the truth of the matter

asserted. The material misstatement was a false statement that

Petitioner intentionally made in an effort to obtain the

license. See Hernandez v. AMISUB (American Hospital), Inc. , 714

So. 2d 539 (Fla. 3d DCA 1998)(intentional misrepresentation can

be shown by recklessness or carelessness as to the truth of the

matter asserted). The false statement demonstrates a "lack of

fitness or trustworthiness to engage in the business of

insurance" within the meaning of Subsection 626.611(7), Florida

Statutes (2003).

18. Upon the entry of a final order denying the

application and the expiration of any appeal, Petitioner must

wait 15 years before submitting a new application unless

Petitioner demonstrates mitigating facto rs to support a shorter

waiting period. Contrary to the assertion in Respondent's PRO,

Petitioner is entitled to a separate administrative hearing to

shorten the waiting period or to demonstrate that he has been

rehabilitated before the expiration of the waiting period

prescribed in the relevant rule.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a final order denying the

license application.

DONE AND ENTER ED this 19th day of July , 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 19th day of July, 2005.

COPIES FURNISHED :

Dana M. Wiehle, Esquire

Department of Financial Services

612 Larson Building

200 Ea st Gaines Street

Tallahassee, Florida 32399

Peter J. Soto

14028 Island Bay Drive, Apartment 103

Orlando, Florida 32828

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32 399 - 0300

Carlos G. Muñiz, 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.