08-000669 John Stover Mark vs. Department Of Financial Services Status: Closed Recommended Order on Tuesday, May 13, 2008.

Summary: The statute bars the applicant from receiving an adjuster`s license due to his plea in a grand theft felony.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN STOVER MARK, )

)

Petitioner, )

)

vs. ) Case No. 08-0669

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 3, 2008, a formal administrative hearing in this

case was held in New Port Richey, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: John Stover Mark, pro se

8143 Sudbury Drive

Port Richey, Florida 34668

For Respondent: William Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

The issue in the case is whether the application filed by

John Stover Mark (Petitioner) for licensure as a resident

independent all lines adjuster should be approved.

PRELIMINARY STATEMENT

By Notice of Denial dated November 22, 2007, the Department

of Financial Services (Respondent) notified the Petitioner that

his application for licensure as a resident independent all

lines adjuster was denied. The Petitioner filed a request for

formal hearing with the Respondent. The Respondent referred the

request to the Division of Administrative Hearings, which

scheduled and conducted the formal proceeding.

The Petitioner testified on his own behalf, presented the

testimony of one witness, and had Exhibits numbered 1 through 6

admitted into evidence. The Respondent presented no testimony

and had Composite Exhibit 1 admitted into evidence.

A Transcript of the hearing was filed on April 11, 2008.

The Petitioner filed a Proposed Recommended Order on April 21,

2008, that has been considered in the preparation of this Order.

FINDINGS OF FACT

1. On June 13, 2005, the Petitioner was driving his

vehicle and was stopped for unlawful speeding. During the

traffic stop, the law enforcement officer discovered that a

grand theft warrant had been issued and was outstanding against

the Petitioner. Prior to the traffic stop, the Petitioner was

unaware of the warrant. The Petitioner was arrested on the

warrant and charged with a third degree felony count of grand

theft.

2. The Petitioner testified that the charge was related to

a claim by his former employer that the Petitioner had stolen

tools from a construction job site.

3. According to the Petitioner, he had been employed in

the construction industry for many years by the same employer

and had become unhappy with the lack of financial support he

believed he was receiving from the employer. Eventually, he

decided to quit the job and called his employer from the job

site to do so. The Petitioner testified that he advised the

employer that he was leaving the job and that the tools that

belonged to the employer were being left at the job site. The

abandoned tools apparently went missing, and the Petitioner was

subsequently charged with the theft of the equipment.

4. Although the Petitioner testified that he entered a

plea of nolo contendere to the charge upon advice of his public

defender, the court records indicate that the Petitioner entered

a guilty plea to one count of grand theft, a third degree

felony, on July 29, 2005, in Case No. 05-CF-012565, Circuit

Court for the Thirteenth Judicial Circuit, Hillsborough County,

Florida. The confusion related to the actual plea entered is

immaterial to the disposition of this case.

5. In any event, adjudication was withheld, and the

Petitioner was sentenced to make restitution and pay court costs

and to complete a five-year probationary period. The probation

was terminated by order of the Court after approximately two

years after the Petitioner had complied with all other

requirements of his sentence.

6. The Petitioner was subsequently injured in an

automobile accident and through the services of the Department

of Education, Division of Vocational Rehabilitation (DVR),

received training for another occupation for which he was

physically capable.

7. The Petitioner testified that the DVR provided computer

equipment and also funded the educational training that was a

requirement for licensure as an insurance adjuster.

8. The Petitioner testified that he disclosed the grand

theft felony to his DVR counselor, who was apparently

unconcerned or unaware that the felony incident posed an

impediment to the Petitioner's prospects for licensure as an

insurance adjuster.

9. After completing the relevant training, the Petitioner

filed an application for licensure as a resident independent all

lines adjuster on July 11, 2007.

10. The application contained the following question:

Have you ever been convicted, found guilty,

or pled guilty or nolo contendere (no

contest) to a felony under the laws of any

municipality, county, state, territory or

country, whether or not adjudication was

withheld or a judgment of conviction was

entered.

11. The Petitioner answered the question in the

affirmative.

12. The Petitioner truthfully answered other questions on

the application related to the felony problem and properly

disclosed the relevant information.

13. There is no evidence that the Petitioner has failed to

disclose the grand theft incident in response to any inquiry

material to this case, or has made any attempt to conceal the

matter from the Respondent.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

15. The Petitioner has the burden of establishing

entitlement to the licensure sought in this proceeding by a

preponderance of the evidence. See Department of Banking &

Finance, Division of Securities & Investor Protection v. Osborne

Stern & Company , 670 So. 2d 932, 934 (Fla. 1966); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); § 120.57(1)(j), Fla.

Stat. (2007).

16. Section 626.611, Florida Statutes (2007), sets forth

the grounds under which the Respondent is required to deny the

Petitioner's application and provides in relevant part as

follows:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

continue the license or appointment 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 following applicable

grounds exist:

(1) Lack of one or more of the

qualifications for the license or

appointment as specified in this code.

* * *

(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.

17. The Respondent has classified grand theft as a crime

of moral turpitude through Florida Administrative Code Rule 69B-

211.042(21)(s). Under the facts of this case, the denial of the

Petitioner's application is mandatory under the provisions of

Subsection 621.611(14), Florida Statutes (2007).

18. Section 626.621, Florida Statutes (2007), sets forth

the grounds under which the Respondent may, in its discretion,

deny the Petitioner's application and provides in relevant part

as follows:

626.621 Grounds for discretionary refusal,

suspension, or revocation of agent's,

adjuster's, customer representative's,

service representative's, or managing

general agent's license or appointment.--The

department may, in its discretion, deny an

application for, suspend, revoke, 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 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 cases.

19. The referenced section provides that the denial of the

Petitioner's application is within the Respondent's discretion.

There is no evidence that the Respondent's exercise of

discretion is unreasonable in this case.

20. The Petitioner offered testimony and evidence related

to restoration of civil rights; however, there is no evidence

that the Petitioner's civil rights were affected by the grand

theft incident, and the issue is immaterial to this dispute.

21. The Petitioner appears to be attempting in good faith

to resume gainful employment in a manner appropriate to his

physical abilities. The Petitioner is justifiably frustrated by

the fact that one state agency (DVR) provided equipment and

training to enable entry into a new occupation and that a second

state agency (the Respondent) has refused to issue the required

license.

22. Ultimately, the Petitioner's time and the state's

resources were wasted by the provision of vocational services

without consideration of the statutory bar to the Petitioner's

licensure, and the Petitioner's disappointment with the

situation is reasonable. Unfortunately for the Petitioner, the

Respondent is not required to issue the license on the basis of

the training provided to the Petitioner by DVR.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner's application for

licensure as a resident independent all lines adjuster be

denied.

DONE AND ENTERED this 13th day of May, 2008, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of May, 2008.

COPIES FURNISHED :

William Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

John Stover Mark

8143 Sudbury Drive

Port Richey, Florida 34668

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

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.