05-003341 Robert J. Bopp, Jr. vs. Department Of Financial Services Status: Closed Recommended Order on Monday, January 9, 2006.

Summary: Petitioner failed to disclose a felony conviction on the application for an adjuster`s license and to prove that the omission was unintentional. There is insufficient mitigation to reduce the waiting period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. BOPP, JR., )

)

Petitioner, )

)

vs. ) Case No. 05 - 3341

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursua nt to notice, a formal hearing was conducted in this

case before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings , on November 8, 2005 , in

Orlando, Florida .

APPEARANCES

For Petitioner: Robert J. Bopp, Jr. , pro se

1534 Jaguar Circle

Apopka, Florida 32712

For Respondent: R. Terry Butler, Esquire

Angelique Knox, Qualified Representative

Department of Financial Services

200 East Gaines Street

Room 612 Larson Building

Tallah assee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner , Robert J. Bopp, Jr. 's , application for

licensure as a r esident i ndependent all lines insurance adjuster

should be approved or denied by Respondent , Department of

Financial Services .

PRELIM INARY STATEMENT

On or about May 18, 2005, Robert J. Bopp, Jr. ( Petitioner),

filed an application with the Department of Financial Services

(Respondent) seeking licensure as a resident independent all

lines insurance adjuster, Code 05 - 20. By letter dated

August 18, 2005, Respondent advised Petitioner that his

application was denied. Petitioner timely requested a formal

hearing , and this cause was thereafter transferred to the

Division of Administrative Hearings on September 14, 2005, to

conduct an eviden tiary proceeding. The hearing was scheduled

and discovery ensued.

At the formal hearing, Petitioner testified on his own

behalf, called one witness to testify , and submitted one exhibit

into evidence without objection. Respondent offered no direct

testi mony and offered four exhibits into evidence without

objectio n . Respondent's Exhibit s : 1) Certified copy of

application for licensure submitted by Petitioner; 2) Certified

copy of Notice of Denial issued August 18, 2005; 3) Composite

Exhibit of Petitione r's criminal court records; 4) Certified

copy of two letters submitted to Respondent by Petitioner.

Respondent also cross - examined Petitioner and his witness .

The Transcript of the hearing was filed on December 2,

2005. Respondent timely filed its P roposed Recommended Order on

December 15, 2005. Petitioner submitted a letter dated

November 21, 2005, as his post - hearing submittal.

FINDINGS OF FACT

1. Respondent is the state agency responsible for the

licensure of insurance agents in the State of F lorida pursuant

to Chapter 626, Florida Statutes (2005) . 1/

2. On May 18, 2005, Petitioner filed an on - line

application with Respondent seeking licensure as a resident

independent all lines insurance adjuster . Petitioner had

recently completed all prereq uisites for an adjuster's license.

3. The on - line application form , filled out by Petitioner ,

included the following screening question:

Have you ever been convicted, found guilty,

or pled guilty or nolo contendere (no

contest) to a felony or crime punis hable 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 judgment of

conviction was entered?

Petitioner answered in the negative.

4. The criminal h istory records obtained by Respondent

during the application review process revealed that on or about

March 29, 1994, Petitioner was charged , via I nformation , with

"Fraudulently Making Application for a Florida Driver's License

or Identification Card," a t hird - degree felony, in violation of

Subsection 322.212(5), Florida Statutes ( 1993 ), in the Circuit

Court of the Fifth Judicial Circuit of the State of Florida in

and for Lake County, Florida, Case No. 94 - 362 - CFA - DS.

5. On or about May 31, 1994, Petitione r pled guilty to the

charge, as set forth in the I nformation. Subsequently, a

judgment was entered placing Petitioner on probation for a

period of 30 months supervised by the Department of Corrections,

ordering Petitioner to perform 50 hours of Community Service,

pay $250 in court costs, as well as $250 into the F ine and

Forfeiture Fund of Lake County , and withholding adjudication of

guilt. Petitioner successfully completed probation, which was

then terminated.

6. The criminal charges in question arose when Petitioner,

then age 25, supplied a friend, Patrick C. Ruddell, then age 20,

with Petitioner's S ocial S ecurity card and B irth C ertificate for

the purpose of obtaining a false identification card for Ruddell

to enable Ruddell to gain access to bars.

7 . In explaining his " N o" response to the criminal history

question on his license application, Petitioner asserts that he

inadvertently provided a negative response because he had to

submit the on - line application approximately eight times because

of a pr oblem with the programming and/or transmission. In

addition, he testified that he had not realized that the charge

was a felony , but assumed that it was a misdemeanor . At the

time, he did not realize the seriousness of the charge .

Petitioner also testif ied that at the time he was signing up for

the adjustor's course, he asked the instructor whether his prior

conviction would prevent him from obtaining a license and was

informed that it would not. He relied on th at statement and

completed the course.

8. Petitioner and his witness testified that he is of good

moral character , is fit , and can be trusted to hold this

license. He has learned from his mistake. No additional

criminal charges have been filed against Petitioner.

9. Petitioner has failed t o meet his burden to demonstrate

that he is fit and trustworthy to engage in the business of

insurance.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

thereof , pursuant to Sec tion 120.569 and Subsection 120.57(1),

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). Furthe rmore, Petitioner bears this burden at each and

every step of the licensure proceedings. Department of Banking

and Finance v. Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996) .

Petitioner must show that he meets all of the relevant statutory

criteria in or der to satisfy this burden.

1 2 . In its Notice of Denial, Respondent alleged that

various Florida Statutes were applicable to Petitioner's

application for licensure, specifically Petitioner's criminal

history and his failure to disclose the same.

1 3 . Sect ion 626.611, Florida Statutes, states , in

pertinent part:

The department shall deny an application

for . . . 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,

misrepresentation, or fraud in obtaining the

license or appointment or in attempting to

obtain the license or appointme nt.

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

* * *

(14) Having been found guilty 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.

1 4 . Section 626.621, Florida Statutes, states, in

pertinent part:

The department may, in its discretion,

deny an application for . . . the license

. . . of any applicant . . . if it finds

that as to the applicant, licensee, or

appointee any on e or more of the following

applicable grounds exist under circumstances

for which such denial . . . is not mandatory

under s. 626.611:

* * *

(8) Having been found guilty 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, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such case s.

1 5 . Pursuant to Subsections 626.611(14) and 626.821(8),

Florida Statutes, an applicant's criminal history is relevant to

Respondent's decision regarding the licensure of an applicant.

1 6 . Florida Administrative Code Rule 69B - 211.042(2) makes

clear a n applicant's duty with regard to disclosure of criminal

history records , stating :

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 fo r

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.

1 7 . Petitioner's answer to the criminal history question

on his ap plication for licensure was false. 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

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

acknowledged that his answer to the criminal history question

was not true. Additionally, Petitioner has asserted that,

because the internet application did not go through, he had to

re - do it eight times before i t finally went through . I n

re submitting it each time, he did not change his answer to the

question, although he reviewed it each time.

18. The testimony produced at the hearing calls

Petitioner's assertion that the omission was unintentional into

questio n. By completing the application from beginning to end

approximately eight times, Petitioner was very familiar with the

contents of the application and the questions therein.

Additionally, Petitioner had enough knowledge of his criminal

history to inquir e once , prior to purchasing the pre - licensing

course , and a second inquiry being that of the instructor of the

pre - licensing course as to whether there would be a denial of

the license Petitioner sought. Further, knowing his criminal

history and its poten tially negative impact on his application,

h e made no inquiry with the circuit court as to the nature of

the charge (whether it was a felony or misdemeanor) before

answering the question and submitting the application.

Furthermore, there were no other dis crepancies with Petitioner's

application which was submitted to Respondent, notwithstanding

Petitioner's assertions.

19. His application failed to disclose that he had

committed a felony. In providing a false answer to the criminal

history question, Peti tioner made a "material misstatement,

misrepresentation, or fraud in . . . [his] attempt to obtain the

license or appointment" and demonstrated a "lack of fitness or

trustworthiness to engage in the business of insurance . "

§ 626.611( 2 ) and (7) , Fla . Stat.

20. Subsection 626.207(1), Florida Statutes, states, in

pertinent part:

(1) The department shall adopt rules

establishing specific waiting periods for

applicants to become eligible for licensure

following denial . . . The waiting periods

may be adjuste d based on aggravating and

mitigating factors established by rule and

consistent with this purpose.

21 . Respondent has promulgated a rule providing guidelines

and waiting periods for individuals with criminal histories and

for determini n g fitness and tr ustworthiness for licensure.

Florida Administrative Code Rule 69B - 211.404, et seq. , became

effective October 17, 2002, which was before Petitioner filed

his application and before the Notice of Denial was issued by

Respondent. This rule is applicable to the present case.

2 2 . Florida Administrative Code Rule 69B - 211.041(11)

states:

(11) " Trigger Date " is the date on which an

applicant was found guilty, or pled guilty,

or pled nolo contendere to a crime; or,

where that date is not ascertainable, the

date of the charges or indictment.

2 3 . Florida Administrative Code Rule 69B - 211.042(3)(a)

states:

(3) Policy Specifically Concerning Effect

of Criminal Records.

(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 nature or

committed in a business cont ext. 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

application context than are crimes rela ted

to business or committed in a business

context.

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

states:

(4) Effect of Failure to Fully Disclose

Law Enforcement Record on Application.

(a) The Department finds that all matters

that are pa rt of an applicant’s law

enforcement record are material elements of

the application, and finds that the omission

of any part of the law enforcement record

required to be disclosed on the application

is a material misrepresentation or material

misstatement in and of itself. The

applicant shall have violated Section

626.611(2) or 626.621(1), Florida Statutes,

if the applicant fails to provide the

Department with the documentation required

by this rule.

2 5 . Florida Administrative Code Rule 69B - 211.042 (4) (b ) 1.

and 4.a. states:

(4) Effect of Failure to Fully Disclose

Law Enforcement Record on Application.

* * *

(b)1. If an applicant fails to fully and

properly disclose the existence of law

enforcement records, as required by the

application, the appli cation will be denied

and a waiting period will be imposed before

the applicant may reapply for any license.

* * *

4. Waiting periods shall be calculated as

follows:

a. Class A or B crime omitted, where the

trigger date was more than 10 years befo re

time of application, add 1 year. If the

trigger date was 10 years prior, or less

than 10 years prior, to the time of

application, add 2 years.

2 6 . Florida Administrative Code Rule 69B - 211.042(8)(a)

states:

(8) Required Waiting Periods for a Single

Felony Crime. The Department finds it

necessary for an applicant whose law

enforcement record includes a single felony

crime to wait the time period specified

below (subject to the mitigating factors set

forth elsewhere in this rule) before

licensure. A ll waiting periods run from the

trigger date.

(a) Class A Crime. The applicant will

not be granted licensure until 15 years have

passed since the trigger date.

2 7 . On or about May 31, 1994, Petitioner pled guilty to

the felony charge of "F raudulentl y Making Application for a

Florida Driver's License or Identification Card ." Respondent

has the duty of protecting the public of the State of Florida.

Therefore, it is Respondent's duty to inquire as to the criminal

history of license applicants. Additi onally, Respondent is

required by law to have rules that require an applicant to wait

for a period of time prior to becoming licensed if that

applicant has a felonious criminal record. See generally

Chapter 626, Fla . Stat . , and Fla . Admin . Code Chap . 69B.

2 8 . While the rules do not provide for Petitioner's

specific felony, it is analogous to the crime of Fraud. ( See

Florida Administrative Code Rule 69B - 211.042(7)(d)), which

provides that when a particular crime is not expressly listed in

the rule, Respon dent is to analogize the crime to the most

similar crime listed .) Pursuant to Subsection 322.212(5),

Florida Statutes, "[i]t is unlawful for any person to use a

false or fictitious name in any application for a driver's

license or identification card or k nowingly to make a false

statement, knowingly conceal a material fact, or otherwise

commit a fraud in any such application. "

2 9 . Here, Petitioner supplied Ruddell with Petitioner's

S ocial S ecurity card and B irth C ertificate for the purpose of

obtaining a false identification car d for Ruddell to enable

Ruddell to gain access to bars.

30 . Respondent defines f raud as a "Class A" crime ,

pursuant to Florida Administrative Code Rule 69B - 211.042(21).

Based upon his criminal record and the failure to disclose it ,

Petitioner is subject to a 16 - year waiting period from his

trigger date, less any mitigation, to have commenced on May 31,

1994, before Petitioner may be eligible for licensure. See

generally Fla . Admin . Code R . 69B - 211.042(4) and (8).

Therefore, absen t any mitigating or further aggravating factors,

Petitioner would be eligible for licensure on May 31, 2010.

3 1 . Petitioner filed one exhibit and called one witness as

evidence to consider mitigat ion of Petitioner's waiting period.

Pursuant to Florida Ad ministrative Code Rule 69B - 211.042(10)(b),

the burden is on Petitioner to prove mitigating circumstances.

Character arguments alone are insufficient to meet the burden to

prove mitigating circumstances. None of the information in

Petitioner's exhibit or the testimony provided by Janet Garmont,

Petitioner's witness, serves as any effective mitigation. The

16 - year waiting period should stand.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that a final o rdered be entered : 1) finding

Petitioner has not met his burden to prove entitlement to a

license; 2) denying the application for licensure of Petitioner

as a resident independent all lines insurance adjuster (Code

05 - 20); and 3) finding that the 16 - year waiting period from

Petitioner's trigger date should not be reduced.

DONE AND ENT ERED this 9th day of January , 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administ rative 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 Jan uary , 2006 .

ENDNOTE

1/ Unless otherwise indicated, all citations are to Florida

Statutes (2005).

COPIES FURNISHED :

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 3239 9 - 0300

Carlos G. Mu ñ iz, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Robert J. Bopp, Jr.

1534 Jaguar Circle

Apopka, Florida 32712

Angelique Knox , Qualified Representative

Department of F inancial Services

200 East Gaines Street

Room 612, Larson Building

Tallahassee, Florida 32399 - 0333

R. Terry Butler, Esquire

Department of Financial Services

200 East Gaines Street

Room 612 , Larson Building

Tallahassee, Florida 32399

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.