15-006028 Kendal Pierre Cobb vs. Department Of Financial Services Status: Closed Recommended Order on Friday, April 29, 2016.

Summary: The Department properly denied Petitioner's application for licensure. The Department proved, by a preponderance of the evidence, that Petitioner lacked the fitness to engage in the business of insurance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENDAL PIERRE COBB,

Petitioner,

vs. Case No. 15 - 6028

DEPARTMENT OF FINANCIAL

SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this m atter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2014), 1/ on January 11 and 12, 2016,

in Orlando, Florida.

APPEARANCES

For Pet itioner: Kendal Pierre Cobb , pro se

2711 Tally Ho Avenue

Orlando, Florida 32826

For Respondent: Stephanie A. Gray, Esquire

Merribeth Bohanan, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner, Kendal Pierre Cobb, should be issu ed a

license by Respondent, Department of Financial Services, as a

resident customer represent ative insurance agent.

PRELIMINARY STATEMENT

On May 6, 2015, Petitioner filed an application for

licensure as a resident customer representative insur ance agent

with Respondent, Department of Financial Services (the

ÐDepartmentÑ).

On September 25, 2015, th e Department issued a Notice of

Denial to Petitioner notifying Petitioner that it intended to

deny his application. The Department based its denial on its

determination that Petitioner lacked the fitness or

trustworthiness to engage in the business of ins urance.

Specifically, the Department obtained information of a criminal

proceeding in Orange County Circuit Court wherein Petitioner was

convicted of committing a lewd act upon a child. PetitionerÓs

conviction was subsequently overturned by the Fifth Dis trict

Court of Appeal. However, the Department determined that the

alleged conduct was sufficiently substantiated for it to

conclude that P etitioner should not be granted a customer

representative license.

On October 13, 2015, Petitioner timely filed a re quest for

a formal administrative hearing before the Division of

Administrative Hearings (ÐDOAHÑ). On October 26, 2015, the

Department transmitted PetitionerÓs request for hearing to DOAH

for assignment to an Administrative Law Judge (ÐALJÑ) to conduct

an evidentiary hearing.

The Department subsequently issued an Amended Notice of

Denial (the Ð Notice Ñ ) to Petitioner on December 31, 2015. The

Notice did not revise the factual grounds upon which the

Department based its determination. The Department simpl y

referenced an additional statutory provision as a basis for its

denial . On January 6, 2016, the undersigned entered an Order

Granting the DepartmentÓs Motion to Amend Denial Letter.

The final hearing was held on January 11 and 12, 2016, in

Orlando, Flo rida. At the final hearing, the Department

presented the testimony of Brandie Silvia, a Child Protective

Team interviewer; Rick A. Salcedo, a detective with the Orlando

Police Department; Amelia Spears with the Department; Sue Gorton

with the Department; Carol Foo with Conway Learning Center; and

Beatriz Fuentes with the Department. Department Exhibits 1

through 32 were admitted into evidence. The ALJ granted the

Department leave to supplement the record on March 4, 2016. 2 /

Petitioner testified on his o wn behalf and presented the

testimony of Maria Antonia Ortiz. Petitioner Exhibits 1

through 9 were admitted into evidence.

A four - volume T ranscript of the final hearing was filed

with DOAH on March 15, 2016. At the close of the hearing, the

parties were advised of the ten - day timeframe following DOAHÓs

receipt of the hearing transcript to file post - hearing

submittals. Both parties filed proposed recommended orders

which were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. In Ma y 2015, Petitioner applied to the Department for a

license as a resident customer representative insurance agent.

A customer representative is an individual appointed by a

general lines insurance agent or agency to assist in transacting

the business of in surance. In his capacity as a customer

representative, Petitioner would directly interact with

customers in the agency or agentÓs office who have been

solicited as part of the agentÓs insurance business. See

§§ 626.015(4) and 626.7354(2), Fla. Stat. A customer

representative routinely handles customer payments and is only

allowed to work in an office setting under the general agentÓs

supervision.

2. The Department has jurisdiction over licensing

procedures for customer representatives. See § 626.016(1 ), Fla.

Stat. Pursuant to this statutory responsibility, after

receiving PetitionerÓs application for licensure, the Department

issued a Notice of Denial on September 25, 2015, notifying

Petitioner of its intent to de ny his application.

3. The Department denied PetitionerÓs application based on

its determination that he lacked the fitness or trustworthiness

to engage in the business of insurance. The specific basis for

the DepartmentÓs denial was information the Department received

that Petitioner had al legedly committed inappropriate sexual

contact with a child.

4. In July 2012, Petitioner was arrested for lewd or

lascivious conduct involving his (then) five - year - old daughter.

In October 2013, Petitioner was tried for the crime in Orange

County Circu it Court in Case No. 2012 - CF - 010041 - A - O.

Petitioner was charged with three crimes including Lewd or

Lascivious Molestation in violation of section 800.04(5)(b) and

section 775.082(3)(a)(4) , Florida Statutes (2012) (Count I) ;

Lewd Act Upon a Child in violat ion of section 800.04(1) (Count

II) ; and Lewd or Lascivious C onduct in violation of section

800.04(6)(b) (Count III). A jury found Pe titioner not guilty on

Count I -- Le wd or Lascivious Molestation. ( PetitionerÓs defense

counsel successfully moved for judg ment of acquittal on Count

III during the criminal trial. ) But, the jury did fin d

Petitioner guilty of Count II -- Lewd Act Upon a Child. 3/ Count

II, according to the Information, specifically alleged that

Petitioner:

Between June 1st 2012 and June 3rd 201 2 ,

. . . did, in violation of Florida Statute

800.04(1), with his penis make contact with

the body of a child under the age of sixteen

(16) years in a lewd, luscious or indecent

manner, and in furtherance thereof

[PETITIONER] did rub his erect penis on

[A .C.] [ 4 / ]

Petitioner was sentenced to 51.15 months in prison followed by

ten yearsÓ sex offender probation.

5. Petitioner appealed his conviction. In January 2015,

the Fifth District Court of Appeal overturned the conviction in

Cobb v. State , 156 So. 3 d 581 (Fla. 5th DCA 2015). The court

ruled that the criminal charging document contained a

fundamental error in that Ðthe information neither referenced a

statute that establishes a criminal offense nor set forth the

essential elements of any substantive crime.Ñ Id. In other

words, PetitionerÓs conviction under section 800.04(1) was

Ðbased on a non - existent crime.Ñ Id.

6. Since PetitionerÓs criminal conviction was overturned,

Petitioner has not been found guilty of or convicted of any

crime based on th e alleged lewd act upon a child. 5 / At the time

of the final hearing, Petitioner was facing no further criminal

charges in this matter. No information or testimony was

provided at the final hearing identifying an alternate or more

appropriate crime that P etitioner allegedly committed involving

the incident with his daughter.

7. The Department, in its Notice to Petitioner, states

that the factual basis for its denial of PetitionerÓs

application was his Ðinappropriate sexual contact with a child.Ñ

To suppo rt its determination, the Department cites to

PetitionerÓs criminal case stating:

[Y]ou were criminally charged in Orange

County Circuit Court Case No. 2012 - CF -

010041 - A - O with committing a lewd act upon a

child. You were found guilty of the charge

in a ju ry trial. The Department is aware

your criminal conviction was reversed by

Cobb v. State , 156 So. 3d 581 (Fla. 5th DCA

2015), because of a technical deficiency in

the criminal charging document.

While the Department acknowledged that PetitionerÓs convict ion

was rev ersed, the Department maintains that the circumstances

surro unding the incident demonstrate that Petitioner lacks the

required fitness or trustworthiness to be issued a customer

representative license. 6 / Consequently, the Department denied

Peti tionerÓs application for licensure. This administrative

proceeding followed.

The Incident Involving PetitionerÓs Daughter

8. Certain facts regarding the incident are undisputed.

The child involved is PetitionerÓs daughter, A.C. 7 / A.C. was

five years ol d at the time of the encounter. Petitioner is

married to, but estranged from, A.C.Ós mother, H.L.

9. Over the weekend of June 1, 2012, A.C. was visiting

Petitioner at his residence. On Saturday evening, June 2, 2012,

Petitioner and A.C. were watching te levision in the room where

A.C. slept during her visits. A.C. was wearing pajamas, a nd

Petitioner was wearing short pants .

10. Petitioner and A.C. were sitting or lying on the bed.

At some point, the two were engaged in some sort of (non -

violent) physic al activity, e.g., hugging or light horseplay.

The activity ended when Petitioner ejaculated, and A.C. felt the

ÐwetÑ on the bed, her clothes, and her thighs.

11. A little over a week later, on June 11 or 12, 2012,

A.C. told her mother, H.L., that Petiti oner had ÐpeedÑ on her

during her visit. On June 14, 2012, H.L. contacted the Florida

Department of Children and Families (ÐDCFÑ) to report A.C.Ós

complaints about her encounter with her father.

12. Both DCF and the Orlando Police Department

investigated the matter. This investigation eventually led to

the criminal charges levied against Petitioner.

13. The principal factual dispute in this matter is how

and what caused Petitioner to ejaculate in the presence of and

on A.C.

A.C.Ós Version of the Inciden t

14. A.C. did not testify at the final hearing. Her story

was conveyed through a videotaped interview with a Child

Protective Team (ÐCPTÑ) interviewer , as well as a transcript of

her sworn testimony at PetitionerÓs criminal trial. 8 /

15. After receiving H. L. Ós report of suspected abuse, on

or about June 14, 2012, A.C. was interviewed by investigators

for DCF and the Orlando Police Department. During these

interviews, A.C. stated that Petitioner had ÐpeedÑ on her and

had ÐhumpedÑ her. A.C. also used a t eddy bear to physically

demonstrate what happened between her and her father. She

placed the teddy bear (in place of herself) on her lap between

her legs and rocking her legs up and down.

16. On or about June 26, 2012, the Orlando police

coordinated with Arnold Palmer Hospital to have A.C. participate

in a forensic interview with the CPT. CPT provides assessments

to DCF and the police department regarding suspected child abuse

or neglect. Brandi Silvia, a s enior case coordinator with CPT,

interviewed A. C. A video recording of Ms. SilviaÓs interview

with A.C. was played at the final hearing.

17. Ms. Silvia described her interview with A.C. at the

final hearing. Ms. Silvia is experienced in conducting child

interviews. Ms. Silvia was trained to act as an unbiased

interviewer. To accomplish this goal, she asks open - ended

questions to obtain information that the child freely provides

to her. Ms. Silvia began her interview by asking A.C. a se ries

of questions to ascertain whether A.C. could differentiate

between a true statement and a lie. Ms. Silvia testified that,

in her opinion, A.C. knew to tell the truth.

18. Ms. Silvia then questioned A.C. to determine whether

she could effectively identify all of her body parts. A.C

called her genitals her Ðpee pee. Ñ

19. During the interview, A.C. described the incident as

Ðmy Dad just peed on my bed.Ñ A.C. explained that her father

was sitting on the bed with his legs crossed. At some point, he

took hold of A.C. and placed her in his lap. He then wrapped

his arms around her and rocked his pelvis up and down against

her .

20. After a brief moment, A.C. felt something wet on her

thighs. A.C. believed that Petitioner had ÐpeedÑ on her. A.C.

expressed to Ms. Silvia that Petitioner Ðwas humping on me.

Then, he peed on me and on my bed. And, I said [for Petitioner]

to go to the bathroom!Ñ At some point during the ÐhumpingÑ

activity, A.C. cried out for Petitioner to Ðstop!Ñ A.C. further

recounted that she told her father that she ÐdidnÓt want him to,

to do that again, never.Ñ A.C. reenacted for Ms. Silvia how her

father had placed her on his lap and ÐhumpedÑ her.

21. During the interview, A.C. commented to Ms. Sylvia

that she knew that people were not supposed to touch her Ðpee

pee.Ñ A.C. explained that Petit ioner had not touched her Ðpee

pee.Ñ Neither did she see or touch PetitionerÓs Ðpee pee.Ñ

22. A.C. also appeared at PetitionerÓs criminal trial on

October 7, 2013. A.C. testified that Petitioner touched the

front of her body with the front of his body . A.C. stated that

Petitioner ÐhumpedÑ her. A.C. described that Petitioner was

laying down on the bed with his legs crossed at his ankles, and

he moved them up and down. She then felt the bed, and it was

wet with Ðpee.Ñ

PetitionerÓs Version of the Incid ent

23. During the course of this matter, from the initial

investigation in June 2012, through his criminal trial in

October 2013, and ultimately to the final hearing in January

2016, Petitioner offered an evolving explanation of what

happened between him and his daughter on the night of June 2,

2012. As detailed below, Petitioner readily admit ted the

undisputed facts listed above. Petitioner also expressed that

his understanding of how he ejaculated on his daughter develops

as he continues to reflect up on the event.

24. On June 19, 2012, Petitioner voluntarily provided a

videotaped statement, under oath, to Detective Rick Salcedo of

the Orlando Police Department as part of its investigation.

During the interview, Petitioner refuted much of his daught erÓs

statement. Petitioner explicitly denied ÐhumpingÑ A.C. He also

specifically denied ejaculating or ÐpeeingÑ on his daughter.

Petitioner confided to Detective Salcedo that he believed that

his daughter had developed a fascination with peeing. He als o

intimated that A.C. had a habit of humping objects and even

people. Petitioner further disclosed that during A.C.Ós last

visit to PetitionerÓs house, the two Ðhad a whole conversation

about pee.Ñ Petitioner, however, had no explanation for why

A.C. wou ld accuse him of ÐhumpingÑ her that night.

25. On July 16, 2012, in reaction to A.C.Ós interview with

Ms. Silvia, Petitioner provided a sworn, written statement to

the Orlando Police Department. Petitioner admitted that he was

not Ðtrueful [sic] about t he situationÑ during his first

interview. In reference to the situation, Petitioner wrote

that, ÐIÓve had no sexual intent toward her, but her sexual

actions in this case did cause me to ejaculate. I tried my best

to stop her movements and action but I l ost control of my

ejaculation. After pushing her off my leg repeatedly, she

jumped on my legs and her knee or leg caused me to ejaculate.Ñ

26. After providing his written statement, Petitioner sat

for a second audio - taped , sworn interview with Detectiv e

Salcedo. During this interview, Petitioner presented an

expanded, and revised, description of what occurred between A.C.

and him while they were lying on the bed. Petitioner revealed

that A.C. started straddling him and trying to hump his leg.

Petitio ner was wearing short pant s. However, her skin rubbed

his skin around his crotch. During this physical contact, A.C.

Ðhit him the wrong way,Ñ and he became aroused. He Ðlost

controlÑ of the situation and ejaculated. Petitioner surmised

that A.C. Ðwas s traddling my leg so she probably felt

something.Ñ

27. Petitioner told his story for a fourth time at his

criminal trial in October 2013. During his testimony,

Petitioner denied any lewd contact with his daughter. Instead,

Petitioner expressed to the cou rt that he was lying down on the

bed, and A.C. was being playful and jumping around. He dozed

off and woke up with an erection. Without warning, A.C. jumped

on him. Petitioner testified that then he Ðsat her to the side,

and she had calmed down, I belie ve, at that m oment. And, right

after that - thatÓs when I believe she had jumped on me again.

And, I was sleeping, and ejaculated.Ñ During cross - examination,

Petitioner explained that he was asleep experiencing a wet

dream. A.C. jumped on top of him, a nd he ejaculated when he

woke up.

28. At the final hearing, Petitioner admitted to

ejaculating in the presence of and on his daughter. Petitioner

repeated that he was asleep on the bed. He remembers that he

was experiencing a wet dream. He awoke to f ind his daughter

ÐhumpingÑ him. Petitioner described the incident as an

ÐaccidentÑ and that he had no criminal or sexual intent.

Petitioner denied that he physically touched A.C. in a sexual

manner. PetitionerÓs position is aptly summarized in his

Petit ion for a n Administr ative Hearing in which he states that:

As I was trying to put her to sleep, I

accidentally fell asleep a couple of times

without realizing . . . I believe I had a

wet dream and was awoken by my daughter

jumping on me and saying that I p eed on her

leg. I am not sure exactly how or when the

wet dream or reaction occurred because I was

disoriented from waking up.

29. Petitioner conceded that he did not give the whole

truth to Detective Salcedo during his first interview on

June 19, 20 12. Petitioner explained that, at the time of his

initial interviews, he did not have a clear understanding of

what had happened that night. At the final hearing, Petitioner

conceded that he still remains confused by the exact turn of

events. Petitioner expounded that:

When I looked back and I tried to say well

what happened . . . it wasnÓt conclusive for

me . . . I didnÓt really find out to give a

clear understanding for myself or anybody

else at the time. I just have remembered

some things happened. I remembered I was

awake at this point. I donÓt remember when

I went to sleep . . . it was very, very

foggy when I remember her actually saying

that I had peed on her and I had Î I

remembered pushing her to remove her. I

remember turning over. All of the se things

that IÓve mentioned. Those are the things I

remembered. I think the real issue is the

timeframe, and when these things happened is

where I was really not sure myself. I was

not sure. So, I just explained what I

could.

30. At both his crimin al trial and the final hearing,

Petitioner explained that the incident was exacerbated by

several medical conditions from which he suffers. Petitioner

represented that nerve pain from a 2010 surgery for a herniated

disk causes him to experience increased sensitivity in his groin

area. He also has increased sensitivity in his genital region

due to a skin condition called folliculitis. 9 / Petitioner stated

that he has suffered from folliculitis outbreaks since December

2011. As a result, Petitioner experie nces increased sensitivity

in his groin, more frequent wet dreams, and an inability to

control erections. Petitioner further testified that he was

just getting over a folliculitis outbreak during the weekend of

June 1, 2012.

31. At the final hearing, Pet itioner did not present any

medical records or a medical professional diagnosis or opinion

supporting his claim that his medical conditions cause him to

experience increased sensitivity to wet dreams or uncontrollable

erections or ejaculation.

32. Follo wing his victory in the Fifth District Court of

Appeal, Petitioner was r eleased from prison in November 2014.

Shortly thereafter, he began working at an Allstate insurance

agency as a telemarketer. He has worked at the agency without

incident or consumer complaint.

33. Based on the evidence and testimony presented at the

final hearing, Petitioner has not met his ultimate burden of

proving, by a preponderance of the evidence, that he is entitled

to a license as a resident customer representative. Based

p rimarily on PetitionerÓs misrepresentations to law enforcement

officials, PetitionerÓs actions show that he is untrustworthy.

Accordingly, Petitioner lacks the requisite fitness and

trustworthiness to engage in business of insurance.

CONCLUSIONS OF LAW

3 4. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015).

35. Petitioner applied to the Department for licensure as

a resident customer representat ive. A customer representative

is Ðan individual appointed by a general lines agent or agency

to assist that agent or agency in transacting the business of

insurance from the office of that agent or agency.Ñ

§ 626.015(4), Fla. Stat. A customer represen tative Ðmay engage

in transacting insurance with customers who have been solicited

by any agent or customer representative in the same agency, and

may engage in transacting insurance with customers who have not

been so solicited to the extent and under con ditions that are

otherwise consistent with this part and with the insurerÓs

contract with the agent appointing him or her.Ñ £ 626.7354(2),

Fla. Stat. However, a customer representative shall not engage

in transacting insurance outside the office of his a gent or

agency. § 626.7354(4), Fla. Stat.

36. The Department is charged with the duty to enforce and

administer the provisions of chapter 626, Florida Statutes. The

Department has jurisdiction over licensing procedures for

customer representatives. See § 626.016(1), Fla. Stat.

37. The Department denied PetitionerÓs application for

licensure based on his alleged inappropriate sexual contact with

his minor child. Despite the fact that Petitioner was

ultimately acquitted of any criminal conduct involving his

child, the Department determined that, through this incident,

Petitioner Ðdemonstrated a lack of fitness or trustworthiness to

engage in the business of insurance.Ñ

38. The Department Ós Notice refers to section

626.611(1)( a) and (g) and section 626.7 351 for the legal basis

for its denial . Section 626.611 establishes grounds for the

Department to refuse to issue a license to a customer

representative applicant and states, in pertinent part:

(1) The department shall deny an

application for, suspend, r evoke, 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 o r 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:

* * *

(a) Lack of one or more of the

qualifications for the license or

appointment as speci fied in this code.

* * *

(g) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

39. Section 626.7351 governs the qualification for a

customer representativeÓs license and states in pertinent part:

The depar tment shall not grant or issue a

license as customer representative to any

individual found by it to be untrustworthy

or incompetent . . . .

40. Petitioner challenges the DepartmentÓs denial of his

application. Petitioner, as the party asserting the

aff irmative, carries the ultimate burden of persuasion to prove

that he satisfied the requirements for licensure and is entitled

to a customer representative license. Dep't of Child . & Fams .

v. Davis Fam . Day Care Home , 160 So. 3d 854, 857 (Fla. 2015);

Dep't of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932,

934 (Fla. 1996) ; Dep Ó t. of Transp . v. J. W. C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981).

41. The preponderance of the evidence standard of proof

applies in an initial license application proceedi ng. Davis

Fam . Day Care Home , 160 So. 3d at 855 (the preponderance of the

evidence standard applies in a case involving the denial of an

initial applica tion for a professional license ); Osborne Stern &

Co. , 670 So. 2d at 934 .

42. Preponderance of the evi dence is defined as Ðthe

greater weight of the evidence,Ñ or evidence that Ðmore likely

than notÑ tends to prove a certain proposition. S. Fla. Water

Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla. 2014); see

Dufour v. State , 69 So. 3d 235, 252 (Fla . 2011) (ÐPreponderance

of evidence is defined as evidence Òwhich as a whole shows that

the fact sought to be proved is more probable than not.ÓÑ) .

43. However, while Petitioner, as the applicant, maintains

the ultimate burden of demonstrating he should b e granted the

license, Ðwhere the agency proposes to deny the license because

the applicant is unfit, it has the burden to prove the

applicant's unfitness.Ñ Davis Fam . Day Care , i d. (citing to

Osborne Stern & Co. II , 670 So. 2d at 934) ("[T]he Department

had the burden of presenting evidence that appellants had

violated certain statutes and were thus unfit for

registration."); see also M. H. v. DepÓt of Child. & Fam s . , 977

So. 2d 755, 761 (Fla. 2d DCA 2008) (Ð Without question, an

applicant for a license ha s the initial burden of demonstrating

his or her fitness to be licensed. Osborne Stern & Co. I , 647

So. 2d at 248. But if the licensing agency proposes to deny the

requested license based on specific acts of misconduct, then the

agency assumes the burden of proving the specific acts of

misconduct that it claims demonstrate the applicant's lack of

fitness to be licensed. Osborne Stern & Co. II , 670 So. 2d at

934.Ñ) . 1 0 /

44. Further, the agency must rely on Ðsomething more than

a suspicion of wrongdoing or untrustworthiness.Ñ Comprehensive

Med. Access, Inc. v. Office of Ins. Reg . , 983 So. 2d 45, 47

(Fla. 1st DCA 2008) . Consequently, despite the fact that the

applicant continuously has the burden of persuasion to prove

entitlement to be licensed, Ðthe agen cy denying the license has

the burden to produce evidence to support a denial.Ñ Id . at 46.

45. An administrative agency's burden of proof in a

license application proceeding is governed by the preponderance

of the evidence standard. M.H. v. Dep't of Chi ld . & Fams. , 977

So. 2d at 760, citing to Osborne Stern & Co. II , 670 So. 2d at

934 - 35.

46. In this matter, the Department seeks to deny

PetitionerÓs li cense application on the ground that Petitioner

is unfit to engage in the business of insurance. The f actual

basis for the DepartmentÓs denial is PetitionerÓs Ðinappropriate

sexual contact with a child.Ñ Therefore, while the ultimate

burden of proof in this proceeding remains with Petitioner, the

legal analysis begins with examining whether the Department

proves the specific act of misconduct that makes Petitioner

unfit for licensure.

47. In addition , the evidence must show how PetitionerÓs

alleged misconduct disqualifies him from working as a customer

representative for an insurance agency. Denying Pe ti tionerÓs

application requires more than simply making a moral judgment or

in voking an emotional, but unsubstantiated, reaction based on a

mere Ðsuspicion of untrustworthiness.Ñ In other words, while

the undisputed facts describing the night of June 2, 201 2, may

be unsettling, the Department must demonstrate how this incident

proves that Petitioner cannot be trusted to perform his

responsibilities under chapter 626, i.e. , assist an insurance

agent transact the business of insurance or i nteract with

customer s regarding their insurance concerns.

48. Based on the evidence presented at the final hearing,

competent substantial evidence establishes that Petitioner

committed an Ðinappr opriate sexual contact with a child . Ñ The

undisputed facts show that Petitioner Ós genital area touched

A.C.Ós skin. This Ð contact Ñ resulted in his ejaculation. A.C.

felt the ÐwetnessÑ on her thighs and her bed sheets . These

facts , c ombined with PetitionerÓs less than persuasive

explanation of the encounter (see further discussion below) ,

establish es that A.C.Ós description of what occurred in June

2012 is the most credible version of the event. Accordingly ,

the Department prov ed , by a preponderance of the evidence, the

specific act of misconduct that demonstrates PetitionerÓs l ack

of fitness to be licensed.

49 . Because the Department prove d the misconduct that

supports its denial of PetitionerÓs license , the burden of

persuasion shifts back to Petitioner , as the party carrying the

ultimate burden, to prove that he is entitled to a customer

representative license. Petitioner essentially argues that

A.C.Ós descripti on of what happened on the night of June 2,

2012 , does not evince his true intent. Therefore, while A.C.

consistently, perhaps graphically, communicated what she

experie nced, her version does not directly refute PetitionerÓs

explanation that he accidently or involuntary Ðlost control of

his ejaculationÑ in her presence.

50 . Petitioner also questions how A.C.Ós testimony, by

itself, demonstrates that he is unfit for licen sure in the

insurance industry. As of the date of the final hearing,

Petitioner does not face future criminal prosecution for this

incident. 1 1 / Therefore, if he was not convicted of any crime

based on his interaction with his daughter, Petitioner

challen ges the DepartmentÓs contention that he cannot

satisfactorily fulfill his duties as a customer representative

for an insurance agency; or, why he cannot be trusted to process

an insurance payment; or, what unacceptable risk he poses t o the

insurance - buying public.

51 . PetitionerÓs true intent or motivation is a crucial

factor in determining whether this single incident proves that

he lacks the fitness or trustworthiness to engage in the

business of insurance. Discerning whether PetitionerÓs actions

were d eliberately committed with sexual intent , as opposed to

resulting from an uncontrollable accident, is distinctly

relevant in determining whether Petitioner possesses the

necessary characteristics to interact with insurance

customers . 12 /

52 . However, i n li ght of PetitionerÓs ever - evolving

description of the incident, his admission at the final hearing

that he lied to investigators, and the detached manner in which

he testified about his daughterÓs accusations, Petitioner did

not meet his ultimate burden of proving, by a preponderance of

the evidence, that he is entitled to a license as a customer

representative in Florida.

53 . PetitionerÓs rendition of the incident presents even

more credibility issues than A.C.Ós story. PetitionerÓs

narratives are too dis jointed and fragmentary to piece together

a supportable account by which this tribunal can find that

PetitionerÓs version occurred as he represented. Petitioner

testified at the final hearing that Ðit was very, very foggyÑ at

the moment he ejaculated. Pe titioner also testified that, as he

reflects on the night of June 2, 2012, his story has developed

as he tries to understand for himself what happened between his

daughter and him. If PetitionerÓs memory of the incident is so

Ðvery foggy,Ñ and his underst anding has evolved with each

retelling, then, it is very difficult for the undersigned to

confidently find competent substantial evidence to support his

story.

54 . What the facts do conclusively establish, however, is

that Petitioner directly lied, under oath, to state

investigators when first confronted about his daughterÓs

statements. Petitioner admitted that he did not tell the truth

to the Orlando Police Department when asked whether he had

ÐhumpedÑ or ÐpeedÑ on A.C. This finding creates two issues t hat

directly impact whether Petitioner has met his ultimate burden

of proving that he is entitled to a customer rep resentative

license. First, Petitioner ex pressly misle d state officials

when interviewed about thes e extremely serious allegations.

This fa ct creates grave concerns regarding whether Petitioner

has told the truth during each of his sworn statements,

including his testimony at the final hearing. Consequently,

PetitionerÓs explanation of the incident with his daughter lacks

credibility.

55 . S econdly, the fact that Petitioner intent ionally

misled state officials a ffects whether Petitioner demonstrates

the requisite fitness or trustworthiness to engage in the

insurance business. Neither section 626.611(1)(g) nor section

626.7351 define s the ter ms ÐfitnessÑ or Ðtrustworthiness.Ñ In

applying these sections as the legal basis for its denial , the

Department represented at the final hearing that it use d its

common understanding and the dictionary definition of these

terms to mean Ðintegrity,Ñ Ðaccou ntability,Ñ and Ðgood

judgment.Ñ 13 / The Department also testified that a customer

representative carries a fiduciary duty to consumers because

they are often trusted with a customerÓs personal and financial

information , as well as the onus to properly pro cess insurance

payments.

56. By lying about the circumstances surrounding the night

of June 2, 2012, Petitioner showed that he lacks a certain

degree of integrity, accountability, and good judgment. These

character traits are essential for individuals wh o are to be

entrusted by consumers with personal and financial information

regarding their insurance needs. Consequently, Petitioner has

not proven that he is qualified for and entitled to a license to

engage in the business of insurance.

57. In sum, the preponderance of the evidence establishes

that Petitioner committed an Ðinappropriate sexual contact with

a child . Ñ Accordingly, the Department met its initial burden of

proving PetitionerÓs unfitness for licensure . Thereafter,

Petitioner , who continuou sly bears the ultimate burden to prove

that he satisfies the requirements for licensure , failed to show

that he is entitled to a license as a customer representative.

PetitionerÓs testimony is simply not credible enough to find

that incident occurred as h e represented. Further, the evidence

establishes that Petitioner lied to state officials about his

interaction with his daughter. Consequently, Petitioner has not

met his burden of proving, by a preponderance of the evidence,

that the Department should g rant him a license as a customer

representative in Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, the Department of

Financial Services, enter a final order denying PetitionerÓs

app lication for licensure as a customer representative in

Florida.

DONE AND ENTERED this 29th day of April , 2016 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of April , 2016 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2014),

unless otherwise noted.

2/ After the final hearing, the Department filed an Unopposed

Motion for Leave to Supplement the Record with an Order Granting

Admission of Child Hearsay Statements at Tria l issued by the

Orange County Circuit Court on October 4, 2013. The

DepartmentÓs motion was granted.

3 / Section 800.04 , Florida Statutes (2012) , reads:

Lewd or lascivious offenses committed upon

or in the presence of per sons less than 16

years of age.

(1) DEFINITIONS. -- As used in this section:

(a) ÐSexual activityÑ means the oral, anal,

or vaginal penetration by, or union with,

the sexual organ of another or the anal or

vaginal penetration of another by any other

object; however, sexual activity doe s not

include an act done for a bona fide medical

purpose.

(b) ÐConsentÑ means intelligent, knowing,

and voluntary consent, and does not include

submission by coercion.

(c) ÐCoercionÑ means the use of

exploitation, bribes, threats of force, or

intimida tion to gain cooperation or

compliance.

(d) ÐVictimÑ means a person upon whom an

offense described in this section was

committed or attempted or a person who has

reported a violation of this section to a

law enforcement officer.

4 / PetitionerÓs daughte r is identified by her initials duet

confidentiality concerns.

5 / At the final hearing, the Department did not offer an

alternative criminal charge or statute that Petitioner allegedly

violated in place of the Ðnon - existentÑ crime of Lewd Act on a

Child under section 800.04(1).

6 / Based on the opinion of the Fifth District Court of Appeal,

section 800.04(1) does not create a crime for Ðlewd act upon a

child.Ñ

7 / Prior to the final hearing, upon the DepartmentÓs motion, the

undersigned determined that A .C. was unavailable to test ify at

the final hearing under section 90.804(1)(e) , Florida Statutes .

The Department sufficiently demonstrated that it had attempted

to obtain A.C.Ós presence at the final hearing but was unable to

procure her attendance or tes timony by process or all other

reasonable means. Thereafter, in accordance with section

90.804(2)(a), the undersigned allowed the Department to

introduce A.C.Ós former, sworn testimony from PetitionerÓs

criminal trial into evidence. The undersigned furth er finds

that A.C.Ós prior s tatements are admissible under section

90.803(23), a hearsay exception for statements of a child

victim, as well as Florida Administrative Code R ule 28 - 106.213 ,

as supplementing and explaining A.C.Ós former testimony. The

under signed notes that in the course of PetitionerÓs criminal

trial, following a hearing, the court issued an Order Granting

Admission of Child Hearsay Statements at Trial in which the

court determined that the time, content, and circumstances of

A.C.Ós prior s tatements provided sufficient safeguards of

reliability and trustworthiness.

8 / A.C.Ós trial testimony was entered into evidence as

Department Ós Exhibit 9. See also Endnote 7 above.

9 / As discussed in paragraph 31, Petitioner produced no medical

or ot her documentation to support his claim that he suffers from

folliculitis, or that such condition can produce the effects he

described.

10 / The court in M. H . v. Department of Children and Fam ilie s ,

977 So. 2d at 760, found instructive language in Osborne Stern &

Co. I , 647 So. 2d at 248, which analyzed the shifting burden of

proof between the agency and the applicant in a registration

appli c ation proceeding and concluded: ÐThe hearing officer

correctly ruled that an applicant for licensure or registratio n

to engage in a particular profession or occupation bears the

burden of showing entitlement thereto by a preponderance of the

evidence. However, that does not mean that the applicant must

disprove that violations occurred as alleged by the Department;

th e Department had the burden of proving the alleged violations

actually occurred if the registration i s to be denied on that

ground.Ñ

1 1 / Neither section 626.611(1) nor section 626.7351 require s

that an applicant be convicted of a crime in order for the

D epartment to determine that the applicant is unfit or

untrustworthy to engage in the business of insurance. Compare

Endnote 12 below.

1 2 / The Department, in its proposed recommended order,

references section 626.207 and section 626.621(8) , suggesting

th at it may automatically conclude that Petitioner lacks the

fitness and trustworthiness to engage in the business of

insurance simply because he committed a n alleged Ðfelonious

act.Ñ S uch argument is not proper in this matter. First, at

this date, no Flor ida court has convicted Petitioner of a felony

or other criminal act based on this incident . Similarly, no

Florida court has held that PetitionerÓs alleged actions were

Ðprohibited conduct.Ñ The evidence and testimony received at

the final hearing does n ot establish that Petitioner committed

the (Ðnon - existentÑ) felony of Ðlewd contact with a childÑ under

section 800.04(1). Neither did the Department prove that

Petitioner committed the other two criminal charges of lewd or

lascivious molestation or lewd or lascivious conduct or any

other crime based on the underlying incident.

I n this matter, the undersigned focused on a different

proposition than that PetitionerÓs underlying action constitutes

a statutory crime. Instead, the undersigned finds that b a sed on

the evidence and testimony produced at the final hearing, t he

Department prove d , by a preponderance of the evidence, that

Petitioner committed an act ( Ð inappropriate sexual contact with

a child Ñ ) . And, by committing that act, the facts demonstrate

that Petitioner lacks the fitness or trustworthiness to perform

the duties and responsibilities of a customer representative in

Florida. Compare Endnote 11 above.

1 3 / See Seagrave v. State , 802 So. 2d 281, 286 (Fla. 2001)

(ÐWhen necessary, the plain and ordinary meaning of words [in a

statute] can be ascertained by reference to a dictionary.Ñ); see

also Raymond James Fin. Servs. v. Phillips , 110 So. 3d 908, 910

(Fla. 2d DCA 2011) (ÐIt is appropriate to refer to dictionary

definitions when construing stat utes or rules.Ñ)

COPIES FURNISHED:

Kendal Pierre Cobb

2711 Tally Ho Avenue

Orlando, Florida 32826

Stephanie A. Gray, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Merribeth Bohanan, Esquire

Depa rtment of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

N OTICE 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 i n this case.