16-004358 Michael C. Bivona vs. Department Of Financial Services Status: Closed Recommended Order on Friday, April 14, 2017.

Summary: Past convictions for felonies involving fraud permanently bar Petitioner from applying for insurance adjuster license. Civil rights were not restored by executive branch exercise of clemency power. Recommend denial of adjuster license application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL C. BIVONA,

Petitioner,

vs. Case No. 16 - 4358

DEPARTMENT OF FINANCIAL

SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On January 11, 2017, the fin al hearing was held before

Elizabeth W. McArthur, Administrative Law Judge, Division of

Administrative Hearings (DOAH), in Tallahassee, Florida.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Street

Tallahassee, Florida 32303

For Respondent: Matthew R. Daley, Esquire

Marshawn Michael Griffin, Esquire

Department of Fin ancial Services

200 East Gaines Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether PetitionerÓs application

for licensure as a resident all - lines adjuster should be appro ved

or denied.

PRELIMINARY STATEMENT

On April 25, 2016, the Department of Financial Services (DFS

or Respondent) issued its notice of intent to deny the

application filed by Michael C. Bivona (Mr. Bivona or Petitioner)

for licensure as a resident all - lines adjuster. Petitioner

apparently timely filed with Respondent a petition for an

administrative hearing to contest the proposed denial; although

the original petition is not part of the record in this

proceeding, Respondent has not contested the timeliness of that

petition. On July 21, 2016, while the matter was still pending

before Respondent, Petitioner filed an Amended Petition for

Formal Hearing. On July 29, 2016, Respondent transmitted its

notice of intent to deny PetitionerÓs application and the ame nded

petition to DOAH for assignment of an Administrative Law Judge to

conduct the hearing.

The final hearing was set for October 12, 2016, by video

teleconference with sites in Sarasota and Tallahassee, based on

the partiesÓ input. PetitionerÓs subsequen t unopposed motion for

continuance was granted for good cause shown, and the video

teleconference hearing was rescheduled for January 11 and 12,

2017. Before the hearing, Petitioner moved to change venue to

Tallahassee only, due to a change in planned Sar asota witnesses.

DFS did not oppose, and an Amended Notice of Hearing was issued,

changing the hearing to a live hearing in Tallahassee only.

The parties did not enter into a joint pre - hearing

stipulation; instead, each party filed unilateral pre - hearing

statements. A comparison of the unilateral statements shows that

the parties indeed had agreed to some facts. To the extent the

separate pre - hearing statements revealed agreement by the parties

as to certain facts regarding the matter at issue in this ca se,

those agreed facts have been incorporated in the findings below.

The parties could not agree on how to frame the issues in

dispute, because in addition to PetitionerÓs application for

licensure and RespondentÓs proposed denial of that application,

Peti tioner wanted to raise and litigate a separate dispute

between the parties. As addressed on the record, primarily at

the outset of the hearing, the undersigned determined that DOAH

lacks subject matter jurisdiction in this proceeding over the

separate con troversy between the parties. The only proposed

agency action on which Petitioner was offered an administrative

hearing, transmitted to DOAH to give rise to this proceeding, was

RespondentÓs proposed denial of PetitionerÓs license application.

At the he aring, Petitioner testified on his own behalf and

also presented the testimony of Amelia Spears, a DFS senior

management analyst supervisor. PetitionerÓs Exhibits 2, 11, 12,

15, and 16 were admitted in evidence. In addition, PetitionerÓs

Exhibits 7 and 8 were admitted for limited purposes described on

the record. Respondent did not present the testimony of any

additional witnesses. RespondentÓs Exhibits 2, 3, and 4 were

admitted in evidence.

Both parties had filed Motions for Official Recognition

shortl y before the hearing. The motions were addressed on the

record towards the end of the hearing. Respondent withdrew its

motion.

PetitionerÓs motion, seeking official recognition of a New

Jersey statute , was taken up and provisionally denied, with leave

fo r Petitioner to file another motion that included additional

statutes that the undersigned determined were necessary to

consider in relation to the single statute offered. After the

hearing and within the time allowed, Petitioner filed an Amended

Motion f or Official Recognition, with additional New Jersey

statutes attached, but one particular statute, identified at

hearing, was not provided. Accordingly, on February 9, 2017, an

Order was issued attaching the statute that Petitioner had not

provided and gi ving notice that the undersigned would either deny

PetitionerÓs Amended Motion for Official Recognition or grant

PetitionerÓs Amended Motion for Official Recognition on condition

that the additional statute provided with the Order would also be

officially recognized. The parties were permitted to file

written objections to official recognition being taken of the

additional New Jersey statute attached to the Order. No written

objections were filed. Thus, PetitionerÓs Amended Motion for

Official Recognitio n is granted, and official recognition is also

taken of section 2A:167 - 5, New Jersey Statutes, a copy of which

was provided to the parties with the February 9, 2017, Order.

At the conclusion of the evidentiary hearing, the parties

were informed that the d eadline provided by rule for submission

of proposed recommended orders (PROs) was 10 days after the

filing of the original final hearing transcript at DOAH.

Petitioner requested an extended deadline of 30 days because of

conflicting obligations on Petitio nerÓs counselÓs calendar;

Respondent did not object, and PetitionerÓs request was granted.

The final hearing Transcript was filed on January 27, 2017.

Both parties timely filed their PROs on Monday, February 27,

2017, and their filings have been given due consideration in the

preparation of this Recommended Order.

FINDING S OF FACT

1. DFS is the state agency responsible for licensing and

regulating insurance adjusters and agents pursuant to chapters

624 and 626, Florida Statutes.

2. On April 20, 2016, Pet itioner filed with DFS his

application to become licensed as an all - lines adjuster in the

state of Florida.

3. On the second page of the application form, Petitioner

answered ÐyesÑ to the question asking whether he has ever pled

nolo contendere, no contes t, or guilty to, or ever had

adjudication withheld for, or ever been convicted of or found

guilty of, any felony crime under the laws of any state.

4. Despite answering yes to that question, on the third and

fourth pages of the application, Petitioner ans wered ÐnoÑ to the

following three questions: First, Petitioner was asked whether

his felony crime(s) fell within the following categories: any

first - degree felony; a capital felony; a felony involving money

laundering, fraud of any kind, or embezzlement; or a felony

directly related to the financial services business. Second,

Petitioner was asked whether his felony crime(s), if not falling

in one of the above categories, were crimes involving moral

turpitude. Lastly, Petitioner was asked whether his fel ony

crime(s) were within the category of Ðall other felonies.Ñ

5. The questions asking how to categorize the felony

crime(s) that Petitioner acknowledged on page two of the

application correlate to the statute prescribing a range of

consequences dependin g on the type of felony criminal background

an applicant has. According to the statute, an applicant with

felony criminal history falling in the first group above (first

degree felony, etc.) is permanently barred from applying for

licensure in Florida as an insurance agent or adjuster. For an

applicant whose felony criminal history does not fall in the

first group, but is categorized as a felony (or felonies)

involving moral turpitude, the statute provides for a long period

of disqualification. If an app licantÓs felony criminal history

does not fall in either of the first two categories, then a

shorter period of disqualification is provided by the statute.

See § 206.207, Fla. Stat., adopted in its current form in 2011

(with one immaterial amendment in 20 14 to change a statutory

cross - reference).

6. PetitionerÓs admitted felony history must, of necessity,

fall within one of the three groups: the felony history must

have involved one or more felonies identified for permanent bar,

other felonies involving moral turpitude, and/or all other

felonies. The application answers were internally inconsistent

and at least one of the answers on pages three and four was

wrong. At hearing, Petitioner did not offer any explanation for

his incorrect answer(s). 1/

7. Pe titioner did not file with his April 2016 application

submitted to DFS , and did not offer into evidence at hearing any

proof of the felony criminal history to which he admitted in his

application. Petitioner gave little information at all about his

crimin al background at hearing. He testified that he identified

his prior criminal history on page two of the application (by

answering ÐyesÑ to the question asking whether he had ever been

convicted, etc. of any felony crimes). The only detail he was

asked by his counsel to address was as follows:

Q: Now the criminal history that you

identified, is that something that occurred

a while ago?

A: Yes, sir.

Q: And can you give me the approximate time

period?

A: The offense? It was in 1994, I believe.

Q: Okay. And do you recall when you finish ed

all your restitution and probation

concerning any of these prior convictions?

A: 1999. (Tr. 32).

8. Petitioner later acknowledged on cross - examination, as

suggested by his attorneyÓs attempted correction in his follow - up

question, that there was not just one (ÐtheÑ) offense -- there was

more than one offense and more than one conviction. Other than

correcting that error, Petitioner volunteered no information

regarding his prior convictions. He did, however, offer into

evidence documentation generally corroborating his testimony

regarding when he completed probation for his prior convictions.

Two letters from New Jersey Superior Court personnel state that

court records reflect that Mr. Bivona completed three different

probationary terms associated with three different indictment

numbers, as follows: for indictment number 96 - 03 - 0031 - I,

probation was completed as of August 9, 1999; for indictment

number 95 - 10 - 0453 - I, probation was completed as of May 2, 1999;

a nd for indictment number 95 - 05 - 0206 - I, probation was completed

as of September 27, 1998.

9. Although Petitioner offered no details or documentation

for his prior felony convictions, either with his application or

at hearing (other than the letters documen ting when he completed

probation), Petitioner said that he had previously provided

documentation to Respondent regarding his felony convictions, a

fact confirmed by Respondent. Respondent had in its files

certified copies of court records for PetitionerÓs felony

convictions in New Jersey, obtained by Respondent in 2010 in

connection with a prior license application by Petitioner. 2/

10. Respondent offered into evidence at hearing certified

copies of court records regarding PetitionerÓs felony criminal

hi story, including indictments issued by grand juries setting

forth the original charges, and the subsequent judgments of

conviction issued by New Jersey Superior Court judges. Because

Respondent was willing to use the criminal history documentation

previou sly provided by Petitioner that was already in

RespondentÓs files, Respondent did not require Petitioner to

obtain or submit the same documentation again in connection with

his new license application. 3/

11. The indictment numbers identified in the three

judgments of conviction match the three indictment numbers

contained in PetitionerÓs exhibit offered to prove when he

completed his probationary terms for his prior convictions.

Thus, although Petitioner was evasive at hearing, unwilling to

identify the c ourt records of his prior convictions, the records

themselves establish the missing information about PetitionerÓs

felony criminal history that Petitioner only alluded to at

hearing.

12. In a September 28, 1995, judgment of conviction issued

by Judge Leon ard N. Arnold, New Jersey Superior Court for

Somerset County, Mr. Bivona pled guilty to, and was convicted of,

the charges set forth in indictment 95 - 05 - 0206 - I. As enumerated

in the judgment of conviction, these were: four counts of

fraudulent use of a c redit card, a third - degree felony; one count

of unlawful theft or receipt of a credit card, a fourth - degree

felony; four counts of forgery, a fourth - degree felony; and one

count of theft by deception, a fourth - degree felony. For

sentencing purposes, the c ourt merged nine of the counts into

count two (one of the charges for fraudulent use of a credit

card), and imposed the following sentence: three years of

probation, restitution of $271.60, a $500.00 fine, and other

monetary assessments.

13. On May 3, 19 96, another judgment of conviction was

issued by Judge Leonard N. Arnold. The judgment of conviction

shows that Mr. Bivona pled guilty to, and was convicted of, the

charges set forth in indictment 95 - 10 - 0453 - I. As enumerated in

the judgment of conviction , these were: three counts of

fraudulent use of a credit card, a third - degree felony; and one

count of theft, a fourth - degree felony. The sentence imposed by

the judgment of conviction was incarceration for 180 days in the

county jail, a three - year proba tionary term, restitution of

$380.02, and monetary assessments.

14. On August 9, 1996, a judgment of conviction was issued

by Judge Marilyn Hess, New Jersey Superior Court for Hunterdon

County. As shown on the judgment of conviction, Mr. Bivona pled

guil ty to, and was convicted of, the charges set forth in

indictment 96 - 03 - 00031 - I. As enumerated in the judgment of

conviction, these were: one count of theft by deception, a

third - degree felony; one count of forgery, a fourth - degree

felony; and one count o f credit card theft, a fourth - degree

felony. The sentence imposed by the judgment of conviction was a

three - year probationary term, restitution of $2,488.30, and

monetary assessments.

15. As noted, Mr. Bivona testified that he completed the

probationary terms for his prior convictions in 1999. He

provided documentation corroborating that he served the three

probationary terms and completed them on three different dates in

1998 and 1999, the last of which was August 9, 1999.

16. No evidence was presented to prove that Mr. Bivona has

paid all restitution, fines, and other monetary assessments

imposed in the three judgments of conviction, and, if so, when

all payments were completed.

17. PetitionerÓs application was initially denied by DFS

because of Petit ionerÓs felony criminal history. DFS determined

that at least two of the judgments of conviction, and possibly

all three, were for felony crimes involving fraud. DFS did not

undertake a review of PetitionerÓs rehabilitation from his past

crimes or his pr esent trustworthiness and fitness to serve as an

insurance adjuster, because in DFSÓs view, Petitioner was subject

to the statutory permanent bar from applying for licensure. DFS

did not determine that Petitioner did not otherwise meet the

requirements fo r licensure as a resident all - lines adjuster.

18. At hearing, neither party went into any detail

regarding the requirements for licensure as an all - lines

adjuster. Instead, the focus of both Petitioner and Respondent

was on whether PetitionerÓs criminal history renders him

disqualified from applying for licensure as an adjuster, either

permanently or for a period of time, and, if the latter, whether

mitigating circumstances reduce the disqualifying period. No

evidence was offered of aggravating circumsta nces.

19. Respondent has not disputed whether, aside from the

implications of PetitionerÓs criminal history, Petitioner

otherwise qualifies for licensure . Therefore, it is inferred

that Respondent was and is satisfied that , aside from the

implications of P etitionerÓs criminal background (including

questions about rehabilitation, trustworthiness , and fitness),

Petitioner otherwise meets the requirements for licensure as an

all - lines adjuster.

20. Petitioner presented evidence addressed to the

mitigating f actors in RespondentÓs rule to shorten the period of

disqualification in certain circumstances, where there is no

permanent bar.

21. Petitioner testified that he moved to Florida with his

wife in 1998 (apparently before he had completed his probationary

t erms for at least two of his convictions). He and his wife

started a business in the Sarasota area, a corporation that has

operated under two different names, but has remained essentially

the same since 1998. The business has always been small;

although it has gone up and down in size over the years,

Petitioner said that the business has had at least five employees

for over three years. Since 1998, the nature of his business has

been to provide technical support and assistance to insurance

adjusters. Th e business has not been engaged in the actual

adjuster work; instead, his clients are licensed adjusters who

perform the actual adjuster work.

22. Petitioner testified that he has been employed by the

corporation he owns, working at least 40 hours per wee k for a

continuous two - year period within the five years preceding the

filing of his application. This parrots one of the mitigation

factors in RespondentÓs rule, and although no documentation of

his employment hours was provided for any period of time, t he

undersigned accepts PetitionerÓs testimony as sufficient under

the mitigation rule. If Petitioner is determined to be

disqualified for a period of years and subject to the mitigation

rule, this mitigation factor would reduce the disqualification

period by one year.

23. To meet another mitigation factor, Petitioner submitted

five letters of recommendation in evidence. Three of those

letters appear to be from someone who has known Petitioner for at

least five years (one undated letter states that the au thor has

known Petitioner for three years; another letter, more of a

business reference from an insurance company representative in

Maryland, does not state how long the author has known

Petitioner). Those letters that are dated bear dates after the

licen se application was submitted and initially denied, but there

is no impediment to receiving and considering them in this de

novo hearing. The letters meet the requirement in RespondentÓs

rule for mitigation. If Petitioner is determined to be

disqualified for a period of years and subject to the mitigation

rule, this mitigation factor would reduce the disqualification

period by one year.

24. Although the letters satisfy one of the mitigation

factors in RespondentÓs rule, the contents of the letters are

hea rsay, as none of the authors testified. The matters stated in

the letters, for the most part, do not corroborate any non -

hearsay evidence, except in a few immaterial respects (such as

that Petitioner runs his own business and has daughters who play

volley ball). Petitioner did not present any testimony from

witnesses at hearing who could attest to his character, his

business reputation, or his trustworthiness.

25. Petitioner testified that he does volunteer work on a

ÐsporadicÑ basis. He is active as a v olunteer for his three

daughtersÓ schools and travel volleyball activities, and he also

works with youth groups in his church. Although Petitioner

testified that he believes he has volunteered at least 180 hours

over the three years preceding the filing o f his application,

Petitioner did not present any documentation from one or more

charitable organizations confirming the number of his volunteer

hours.

26. It is undisputed that Petitioner held an insurance

adjuster license in Florida for some period of t ime, until,

according to DFS, the license expired by operation of law.

Although Petitioner admitted that since 1998, his business has

not been engaged in insurance adjuster work, merely holding a

license appears to at least superficially satisfy a mitigat ion

factor in RespondentÓs rule.

27. No evidence was presented to show that Petitioner has

been arrested or charged with any criminal violations since he

completed his third probation in August 1999, more than 17 years

ago. The length of time without any additional criminal

incidents is a positive consideration.

28. Notably lacking from Petitioner were: an explanation

for the circumstances underlying the m ultiple crimes he committed

that involved fraud, theft, forgery, and deception, through use

of othe r peopleÓs credit cards and checks; express acceptance of

responsibility for his criminal past; the expression of genuine

remorse for his wrongdoing; and an explanation as to why his

criminal history should not present concerns if Petitioner

becomes author ized to engage in insurance adjusting. As

Petitioner acknowledged, a licensed adjuster Ðwould negotiate

settlement [of claims under insurance policies], would offer

payment, [and] would have authority to write payment and receive

paymentsÑ (Tr. 35), placi ng the adjuster in a position of trust

and responsibility in dealing with other peopleÓs money. Simply

noting that it has been a good number of years since Petitioner

completed his probations, that he is running his own business

(that does not engage in i nsurance adjusting), that he has a

family, that he is involved with church, and that he does

volunteer work is not enough, when PetitionerÓs past crimes and

the concerns they present go unexplained, to support a finding of

rehabilitation, moral fitness, an d trustworthiness today. It may

well be that Petitioner could prove these things if he had

addressed them; it may have been an unfortunate strategic choice

to avoid any mention of PetitionerÓs past crimes in anything but

the most general and vague terms.

29. Perhaps in light of decisional law discussed in the

Conclusions of Law below, RespondentÓs licensure application form

asks applicants who disclose criminal history whether they have

had their civil rights restored. Petitioner answered yes. He

was as ked to explain, and his response was: ÐRights were

restored and I have the ability to vote and act as a standard US

Citizen.Ñ (Pet. Exh. 11 at 4).

30. In the initial review of PetitionerÓs application, DFS

staff apparently accepted PetitionerÓs represen tation that his

civil rights had, in fact, been restored. 4/ However, in a

ÐdeficienciesÑ listing at the end of the application, DFS noted

that Petitioner failed to provide a certificate of civil rights

restoration, or other proof of restoration of his civ il rights.

PetitionerÓs application was not denied because of these

omissions, and PetitionerÓs failure to provide such evidence in

his application would not have been an impediment to receiving

and considering proof of restoration of PetitionerÓs civil r ights

at hearing, had such evidence been offered.

31. At hearing, Petitioner attempted to prove that his

civil rights were restored. However, Petitioner presented no

evidence that he ever applied for restoration of his civil

rights, or that his civil rig hts have been restored by order of

the governor in the exercise of clemency power.

32. Instead, the only evidence offered by Petitioner was a

Florida voter status printout showing that he is an active

registered voter. The exhibit was admitted for the li mited

purpose of showing that Petitioner was registered to vote in

Florida. However, this fact is insufficient to support an

inference that PetitionerÓs civil rights must have been restored

or he would not have been allowed to register to vote. If

Petiti oner has actually had his civil rights restored, there

would be direct evidence of that, and Petitioner had no such

evidence. It is equally or more plausible that Petitioner was

allowed to register to vote in Florida by mistake; Petitioner

acknowledged th at he represented in his voter registration

application that his civil rights were restored (just as he

represented to DFS in his license application).

33. PetitionerÓs counsel argued that Petitioner was allowed

to register to vote in Florida because Flor ida gave full faith

and credit to what New Jersey had done. This argument was

unsupported by evidence of how Petitioner became registered to

vote in Florida.

34. Regarding what was done in New Jersey, the only

evidence offered by Petitioner was a Ðvoter restoration handbookÑ

from the state of New Jersey, which indicates as follows: ÐIn

New Jersey, any person who is no longer in prison or on parole or

probation, can register to vote. . . . In New Jersey, unlike

some other states, those who have been conv icted of felony

offenses in the past are not forever barred from voting. . . .

Any ex - felon who has satisfactorily completed the term of his or

her sentence can register to vote.Ñ (Pet. Exh. 7, admitted for a

limited purpose, at 1 - 2). The rest of the handbook simply

describes how one goes about registering to vote in New Jersey.

35. Under New Jersey law, then, one particular civil

right -- the right to vote -- is taken away from convicted felons

only until they complete their sentence, parole, and probati on.

This is confirmed by a New Jersey statute that has been

officially recognized, providing that the right of suffrage -- the

right to vote -- is taken away from any person Ð[w]ho is serving a

sentence or is on parole or probation as the result of a

convicti on of any indictable offense under the laws of this or

another state or of the United States.Ñ £ 29:4 - 1(8), N.J. Stat. 5/

36. The right to vote is only one of the civil rights that

may be lost by reason of being convicted of a crime. For

example, under a nother New Jersey law officially recognized in

this proceeding, persons convicted of a crime are disqualified

from serving on a jury. See § 2C:51 - 3b., N.J. Stat.

37. Petitioner presented no evidence to prove that he ever

sought or received a restoration of his civil rights by executive

order of the governor pursuant to an exercise of executive branch

clemency power, either in the state of New Jersey or in Florida.

38. In New Jersey, restoration of civil rights and

privileges (one of which may be the righ t to vote) is

accomplished pursuant to section 2A:167 - 5, New Jersey Statutes,

officially recognized in this proceeding and providing in

pertinent part:

Any person who has been convicted of a crime

and by reason thereof has been deprived of

the right of suf frage or of any other of his

civil rights or privileges . . . may make

application for the restoration of the right

of suffrage or of such other rights or

privileges . . . which application the

governor may grant by order signed by him .

(emphasis added).

Similarly, the Florida Constitution vests in the executive branch

the following clemency powers:

[T]he governor may, by executive order filed

with the custodian of state records , suspend

collection of fines and forfeitures, grant

reprieves not exceeding s ixty days and, with

the approval of two members of the cabinet,

grant full or conditional pardons, restore

civil rights , commute punishment, and remit

fines and forfeitures for offenses.

(emphasis added).

Art. IV, § 8(a), Fla. Const.

39. Petitioner a dmitted that he did not apply to the

governor for a restoration of civil rights in New Jersey, and he

has no order from the governor restoring his civil rights.

Similarly, Petitioner did not apply for and receive an order from

the governor restoring his c ivil rights in Florida. Instead, he

admitted that he is relying on whatever happened in New Jersey.

40. The following testimony reveals PetitionerÓs

misconception of the process in New Jersey for restoration of

civil rights:

Q: Okay. Mr. Bivona, whatÓ s your

understanding of how your civil rights were

restored in New Jersey?

A: My understanding is that once probation

and restitution and everything is completed,

that civil rights are restored in the State

of New Jersey.

Q: And did that happen, t o your knowledge?

A: The completion?

Q: Yes.

A: Yes, sir. I also verified that with the

State of New Jersey. I called them.

The Court: I canÓt consider that. [ 6/ ]

A: I understand. IÓm sorry.

The Court: Do you have any exhibits that

show that civil rights have been restored?

Mr. Terrell: ThereÓs a handbook from New

Jersey thatÓs also how the rights are

restored. [Pet. Exh. 8, in evidence for

limited purpose] (Tr. 44).

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties, pursuant to

section 120.569 and 120.57(1), Florida Statutes (2016). 7/

42. Petitioner, as the applicant for a resident all - lines

adjuster license, has the ultimate burden of persuasion to prove

his ent itlement to licensure by a preponderance of the evidence.

DepÓt of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932,

934 (Fla. 1996).

43. Respondent contends that PetitionerÓs application

should be denied because of his felony convictions, pursuant to

section 626.207 , Florida Statutes . Respondent has the burden of

presenting evidence of the grounds asserted for denial. Id.

44. Section 626.207 provides in pertinent part:

(1) For purposes of this section, the term

Ðfinancial services businessÑ mean s any

financial activity regulated by the Department

of Financial Services, the Office of Insurance

Regulation, or the Office of Financial

Regulation.

(2) For purposes of this section, the terms

Ðfelony of the first degreeÑ and Ðcapital

felonyÑ include a ll felonies designated as

such by the Florida Statutes, as well as any

felony so designated in the jurisdiction in

which the plea is entered or judgment is

rendered.

(3) An applicant who commits a felony of the

first degree; a capital felony; a felony

in volving money laundering, fraud , or

embezzlement; or a felony directly related to

the financial services business is permanently

barred from applying for a license under this

part. This bar applies to convictions, guilty

pleas, or nolo contendere pleas, r egardless of

adjudication, by any applicant, officer,

director, majority owner, partner, manager, or

other person who manages or controls any

applicant. (emphasis added).

(4) For all other crimes not included in

subsection (3), the department shall adop t

rules establishing the process and application

of disqualifying periods that include:

(a) A 15 - year disqualifying period for all

felonies involving moral turpitude that are

not specifically included in the permanent bar

contained in subsection (3).

(b ) A 7 - year disqualifying period for all

felonies to which neither the permanent bar in

subsection (3) nor the 15 - year disqualifying

period in paragraph (a) applies.

(c) A 7 - year disqualifying period for all

misdemeanors directly related to the financial

services business.

(5) The department shall adopt rules

providing for additional disqualifying periods

due to the commitment of multiple crimes and

other factors reasonably related to the

applicantÓs criminal history. The rules shall

provide for mitiga ting and aggravating

factors. However, mitigation may not result

in a period of disqualification of less than

7 years and may not mitigate the disqualifying

periods in paragraphs (4)(b) and (c).

(6) For purposes of this section, the

disqualifying period s begin upon the

applicantÓs final release from supervision or

upon completion of the applicantÓs criminal

sentence, including payment of fines,

restitution, and court costs for the crime

for which the disqualifying period applies.

(7) After the disqual ifying period has

been met, the burden is on the applicant

to demonstrate that the applicant has been

rehabilitated, does not pose a risk to the

insurance - buying public, is fit and

trustworthy to engage in the business of

insurance pursuant to s. 626.611(1 )(g),

and is otherwise qualified for licensure.

Permanent Bar - Section 626.207(3)

45. RespondentÓs primary position is that Petitioner is

permanently barred from applying for licensure as an insurance

adjuster, because he committed, pled guilty to, and was convicted

of felony crimes involving fraud.

46. Respondent proved that Petitioner pled guilty to and

was convicted on two separate occasions of crimes involving

fraud. Pursuant to section 626.207(3), PetitionerÓs conviction

of even one felony involvi ng fraud would require application of

the statutory permanent bar. PetitionerÓs separate convictions

for at least two felonies involving fraud mean that Petitioner is

subject to the statutory permanent bar. Petitioner does not

argue otherwise. Instead, as addressed below, Petitioner relies

on a defense that the permanent bar cannot be interpreted to

apply to his crimes, based on his contention that his civil

rights have been restored.

47. Respondent contends that PetitionerÓs third felony

conviction was for a crime involving fraud. In the judgment of

conviction that did not include a charge for fraudulent use of a

credit card, Petitioner was convicted of forgery, credit card

theft, and theft by deception. Arguably, one or more of these

crimes may be co nsidered as involving fraud, but unlike

fraudulent use of a credit card, the element of fraud is not

expressly included in the crimeÓs name. Such a determination is

unnecessary, since the statutory permanent bar is triggered by

one felony crime involving fraud, and Respondent proved that

Petitioner committed two such crimes; adding a third would add

nothing to the determination.

Restoration of Civil Rights Defense

48. Petitioner argues that the statutory permanent bar,

though seemingly applicable, cannot be interpreted to apply to

his crimes, because he contends that his civil rights have been

restored. Since Petitioner asserts the affirmative of this

issue, he bears the burden of proof. See DepÓt of Transp. v.

J.W.C. Co. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

49. PetitionerÓs defense invokes a line of cases holding

that statutory permanent bars from licensure for certain

convicted felons, such as in section 626.707(3), cannot

constitutionally be applied to applicants who have been pardoned

or whose civil rights have been restored by exercise of the

executive branchÓs constitutional clemency power in article IV,

section 8(a) of the Florida Constitution.

50. Petitioner contends that this case is just like Kauk v.

Department of Financial Services , 131 So. 3d 805 (Fla. 1st DCA

2014). In Kauk , the court held that it was required to follow

precedent established by Sandlin v. Criminal Justice Standards &

Training Commission , 531 So. 2d 1344 (Fla. 1988), and G.W.

Liquors of Collier, Inc. v. Department of B usiness Regulation ,

556 So. 2d 464 (Fla. 1st DCA 1990), to interpret the permanent

bar established by section 626.707(3) for applicants who

committed certain felonies as not applying to convicted felons

whose civil rights were restored by order of the gove rnor in an

exercise of the executive branchÓs constitutional clemency power.

As the court summarized the precedent established by Sandlin and

G.W. Liquors , by which it felt bound:

[A] statute precluding licensure or

certification for a particular occupat ion

due to the conviction of a crime may not be

interpreted as imposing an automatic bar

against the licensure of those who have

received a pardon or restoration of rights

under the clemency power granted to the

Governor in article IV, section 8(a) of the

Florida Constitution.

Kauk , 131 So. 3d at 808.

51. In Sandlin , the Florida Supreme Court considered a

constitutional challenge to section 943.13, Florida Statutes,

which, read literally, provided that convicted felons were

disqualified from certificatio n as law enforcement officers.

Certification was being sought by someone who had a felony

conviction, but who had received a full pardon from the governor

in an exercise of the constitutional clemency power. The

constitutional challenge, expressed in the alternative, was

either that the statute should be declared unconstitutional, or

else the statute should be interpreted in this context to avoid

an Ðunconstitutional legislative incursion into the executiveÓs

power over pardons.Ñ Id. at 1345.

52. As th e c ourt noted, Ðthe pardoning power is a function

exclusive to the executive, derived from the state constitution.

Art. IV, £ 8(a), Fla. Const.Ñ Id. Thus, in the c ourtÓs view,

the absolute prohibition in section 943.13 against certifying a

convicted fel on who has been pardoned Ðcreates a head - on

confrontation between the legislatureÓs power to enact laws to

protect the public and the executiveÓs power to pardon convicted

felons. Contrary to the district court, we do not find that this

statute should be held to override the executiveÓs pardon power.Ñ

Id. at 1346.

53. The c ourt did not declare the absolute statutory

prohibition against certifying convicted felons to be

unconstitutional. Instead, the Court noted that it should uphold

the statute if it Ð can be fairly construed in a constitutional

manner. . . . Such a construction is possible in this case.Ñ

Id. The c ourt held that, in order to avoid the separation of

powers problem described above, it should interpret the absolute

disqualification impos ed by statute to be removed by a full

pardon issued under the executive branchÓs constitutional

clemency power. However, the c ourt emphasized that the

Commission could still consider the felony conviction as part of

its close examination of the pardoned f elonÓs character.

54. In G.W. Liquors , the First District Court of Appeal

extended SandlinÓs holding to apply where the executive branchÓs

exercise of clemency powers resulted in a restoration of civil

rights. The courtÓs holding was as follows:

We hold that WilnerÓs prior conviction is

not an absolute bar or per se

disqualification from consideration for an

alcoholic beverage license since his civil

rights have been restored pursuant to

constitutional executive clemency powers .

At the same time, howeve r, the department

may take into account and rely upon the

circumstances surrounding his prior

conviction and may give weight to the

general policy expressed in [the statute

providing automatic disqualification for

certain convicted felons]. (emphasis

adde d).

G.W. Liquors , 556 So. 2d at 465.

55. Petitioner has not shown the predicate to trigger the

limiting interpretation found constitutionally necessary in

Sandlin , G.W. Liquors , and Kauk . In this case, there has not

been an exercise of the executive b ranchÓs constitutional

clemency power under article IV, section 8(a) of the Florida

Constitution. There is no Ðhead - on confrontationÑ between the

LegislatureÓs exercise of its power in 2011 to adopt the

permanent bar in section 626.707(3) and the executiv e branchÓs

exercise of its constitutional clemency power. There is no

separation of powers problem, and thus, no need to apply the

limiting interpretations found necessary in Sandlin , G.W.

Liquors , and Kauk to keep otherwise constitutional statutes from

b eing applied in a way that would violate the separation of

powers by encroaching on the executive branchÓs clemency powers.

56. Where there has been no executive branch exercise of

constitutional clemency power, statutory disqualifications from

licensure or certification for applicants who have a prior felony

conviction (defined variously to include a guilty plea or plea of

nolo contendere/no contest, regardless of adjudication) have been

routinely upheld and applied.

57. For example, in Giamberini v. D epartment of Financial

Services , 162 So. 3d 11 3 3 (Fla. 4th DCA 2015), the court upheld

the denial of an application for certification as a fire safety

inspector, based on the applicantÓs 1993 no contest plea to a

felony charge of aggravated battery without a firearm, because of

a statutory disqualification from fire safety inspector

certification applicable to applicants who have pled no contest

to a felony, despite adjudication of guilt being withheld. The

court distinguished Kauk , as follows:

We also fin d that appellantÓs reliance upon

Kauk is misplaced. Here, appellant did not

receive a pardon or a restoration of his

civil rights. In fact, appellant never lost

his civil rights, as confirmed by his own

testimony and the fact that adjudication was

withhe ld on the felony charge. . . . Thus,

because appellant never received a pardon or

a restoration of his civil rights, applying

the statute to appellant would not

unconstitutionally infringe on the governorÓs

clemency power.

We do not agree with appellantÓ s suggestion

that the DepartmentÓs interpretation of the

relevant statutes leads to absurd results.

It cannot be said that it would be absurd for

the legislature to bar applicants with felony

histories from receiving certification as a

firesafety inspecto r (even if the applicant

had already obtained certification as a

firefighter under an earlier statutory scheme

that did not disqualify the applicant), so

long as the automatic denial is not an

unconstitutional infringement on the

governorÓs clemency power as applied to a

particular applicant.

Id. at 1138 - 1139.

58. In Jacques v. Department of Business & Professional

Regulation , 15 So. 3d 793 (Fla. 1st DCA 2009), the same court

that extended Sandlin in G.W. Liquors affirmed the denial of

applications for s lot machine licenses based on a statutory

disqualification that applied to an officerÓs convictions for

felony charges of possession and production of marijuana. The

court found no constitutional impediment to applying a statutory

disqualification enacted after the disqualifying offenses,

because the statutory disqualification was enacted prior to the

license applications being filed. See also Diaz v. Fla. DepÓt of

Law Enf . , 164 So. 3d 24 (Fla. 5th DCA 2015), rev. denied , 192 So.

3d 36 (Fla. 2015) (affirm ing a final order determining that Diaz

was statutorily disqualified from certification as a corrections

officer because of a 1998 New York conviction for possession of

cocaine, because the crime would have constituted a felony under

Florida law; statutory bar made an assessment of the applicantÓs

moral fitness unnecessary); Calhoun v. DepÓt of Health &

Rehab ilitative Servs. , 500 So. 2d 674, 678 (Fla. 3d DCA 1987)

(Ð[T]he state of Florida, plainly, has the constitutional

authority to deny basic civil rights -- such as the right to vote,

to serve on a jury, to hold public office -- as well as the right

to engage in state - licensed occupations, to a person, like

Mrs. Calhoun, who has been previously convicted of a felony.Ñ

(citations to federal and Florida decisio ns omitted)); compare

Yeoman v. Constr. Ind. Licensing Bd. , 919 So. 2d 542 (Fla. 1st

DCA 2005) (holding that the licensure statutes at issue contained

no automatic categorical disqualification for an applicant with a

prior felony conviction, agreeing with the applicantÓs argument

that the Legislature knows how to promulgate absolute bars to

licensure based on prior felony convictions, and collecting cases

discussing and applying such absolute bars).

59. Based on these authorities, the undersigned conclud es

that the permanent bar in section 626.707(3), prohibiting

licensure as an insurance adjuster of a person convicted of a

felony involving fraud, applies to Petitioner and requires denial

of his application. Petitioner has two prior felony convictions

fo r crimes involving fraud (fraudulent use of a credit card);

under the statute as amended in 2011, one such conviction gives

rise to the permanent bar. Further, applying the statutory bar

as written creates no separation of powers problem, as in

Sandlin , G .W. Liquors , and Kauk , because there has been no

executive branch exercise of clemency power, through an order of

the governor pardoning Petitioner or restoring his civil rights,

pursuant to article IV, section 8(a) of the Florida Constitution.

60. Presu mably, an exercise of clemency power by the

governor of New Jersey would not create the same sort of head - on

confrontation with an exercise of Florida legislative power, but

that specific issue need not be decided, because Petitioner

failed to prove that t here was an exercise of the New Jersey

executive branchÓs clemency power that resulted in an order by

the governor of New Jersey to restore PetitionerÓs civil rights.

See § 2A:167 - 5, N.J. Stat. (providing for application for

restoration of civil rights, w hich may be granted by order of the

governor). Instead, Petitioner showed only that pursuant to

legislative action in New Jersey, one of PetitionerÓs civil

rights was only taken away from him until he completed his

probation. See § 19:4 - 1(8), N.J. Stat. 8 /

Alternative Disqualifying Period -- Section 626.707(4)

61. RespondentÓs alternative position is that if the

permanent bar in section 626.207(3) is not applicable to

PetitionerÓs felony convictions, then PetitionerÓs crimes would

be subject to the disqua lifying period provided in section

626.707(4) and the implementing rule.

62. If PetitionerÓs felony convictions are not considered

under the permanent bar provision in section 626.207(3), then

section 626.707(4)(a) would apply, requiring Ða 15 - year

disqua lifying period for all felonies involving moral turpitude

that are not specifically included in the permanent bar contained

in subsection (3).Ñ

63. In State ex rel. Tullidge v. Hollingsworth , 108 Fla.

607, 611, 146 So. 660, 661 (Fla. 1933) , the Court prov ided the

following description of moral turpitude :

Moral turpitude involves the idea of i nherent

baseness or depravity in the private social

relations or duties owed by man to man or by

man to society. It has also been defined as

anything done contrary to justice, honesty,

principle, or good morals.

(citations omitted).

Intentional crimes for financial gain that victimize another or

others have been consistently deemed crimes involving moral

turpitude, as they offend the duties owed by man to man or by m an

to society, and are contrary to justice, honesty, principle and

good morals. See, e.g. , Cirnigliaro v. Fla. Police Stds. &

Training CommÓn , 409 So. 2d 80 (Fla. 1st DCA 1982) (embezzling

less than $100 from a bank is a misdemeanor crime involving moral

turpitude); Winkelman v. DepÓt of Bank. & Fin. , 537 So. 2d 591

(Fla. 3d DCA 1988) (willful assist ance in the preparation of a

false income tax return is a crime involving moral turpitude);

Bruner v. Bd. of Real Estate, DepÓt of Prof Ól Reg. , 399 So. 2d 4

(F la. 5th DCA 1981) (grand theft is a crime involving moral

turpitude); compare Florida Bar v. Davis , 361 So. 2d 159, 162

(Fla. 1978)(issuance of worthless checks, unlike larceny, theft,

and other reprehensible offenses, does not involve moral

turpitude).

6 4. To determine the applicable disqualifying period, it is

necessary to consider Florida Administrative Code Rule 69B -

211.042, promulgated to implement the 2011 statutory amendments

to section 626.707, including the specific rule directives in

section 626 .707(5) quoted above. The first step is to determine

the total disqualifying period. Relevant to this consideration

is the following provision in rule 69B - 211.042 :

(4) Applicants With Multiple Crimes.

(a) Where an applicant has more than one

crime su bject to a disqualifying period, an

additional disqualifying period for each of

those additional crimes shall be added to the

disqualifying period. For each additional

crime that is subject to a disqualifying

period the Department shall add:

1. Five yea rs to the disqualifying period

for each additional felony involving moral

turpitude but not subject to the permanent

bar in Sections 626.207(3) or 626.9954(2),

F.S.;

2. Two years to the disqualifying period for

each additional felony not involving moral

turpitude and not subject to the permanent

bar in Sections 626.207(3) or 626.9954(2),

F.S.; and,

3. Two years to the disqualifying period for

each additional misdemeanor directly related

to a financial services business.

(b) The additional disqualifyin g period

shall be added to the disqualifying period

for the most serious crime, and the combined

total disqualifying period will then run from

the date of the applicantÓs final release

from supervision for the most recent crime

that would be subject to a d isqualifying

period under Sections 626.207(4) or

626.9954(3), F.S.

(c) Multiple crimes arising out of the same

act, or related acts, performed over a

relatively short period of time and in a

concerted course of conduct, and crimes

committed in one transa ction, episode, or

course of conduct are treated by the

Department as one crime for application of

this rule. The most serious crime will be

used as the basis for the disqualifying

period. For the crimes to be considered a

single crime, the applicant mus t have pled to

or been convicted of such crimes on the same

date and the judgment and sentence for those

crimes must have been imposed concurrently.

65. Here, Petitioner was convicted on three different

occasions for crimes fairly characterized as invol ving moral

turpitude, if those crimes are not subject to the permanent bar

in s ection 626.707 (3). Under RespondentÓs rule, each separate

judgment of conviction is treated as a single criminal episode,

despite the inclusion of multiple crimes in the judgme nts of

conviction. However, the three separate convictions are

considered three separate crimes and would not be treated as a

single episode, regardless of the circumstances (which were not

explained in any event), because the three convictions occurred

a t different times, and the three judgments and sentences were

not imposed concurrently.

66. Applying these rule standards, a 15 - year disqualifying

period is imposed for the first conviction, to which 10 years is

added (five years for each of the other tw o convictions). The

total disqualifying period is 25 years, again, assuming the

permanent bar is not applied to PetitionerÓs felony convictions.

67. The next step is to address mitigating factors that can

apply to reduce the total disqualifying period. The relevant

provisions on mitigation in rule 69B - 211.042 are as follows:

(5) Mitigating Factors.

(a) If applicable, the Mitigating Factors

listed below may be used to shorten the total

disqualifying period only when the fifteen

year disqualifying p eriod established in

Section 626.207(4)(a), F.S. is applicable.

Where more than one mitigating factor is

present the applicant is entitled to add all

applicable years of mitigation together and

deduct that number from the total

disqualifying period only w hen the fifteen

year disqualifying period is applicable;

however, the fifteen year disqualifying

period may not be reduced to less than seven

years. Mitigating Factors cannot be used to

reduce the seven year disqualifying periods

established by Sections 6 26.207(4)(b) or (c)

or 626.9954(3)(b) and (c), F.S. Mitigating

Factors may not be used to reduce the amount

of the disqualifying period for failure to

answer questions accurately and truthfully

established in subparagraph (2)(b)1. The

following Mitigatin g Factors may apply:

1. One year is deducted if the applicant was

age twenty - one or younger when the felony

crime was committed and if there are no

felony crimes on the applicantÓs law

enforcement record after reaching the age of

twenty - two.

2. One yea r is deducted if the applicant

furnishes proof that the applicant was

addicted to drugs, suffering from active

alcoholism, or suffering from a psychiatric

disorder, at the time of the crime and the

applicant furnishes a letter from a medical

doctor, psycho logist, or therapist, who is

licensed by a duly constituted state

licensing body, that states that the licensed

person has examined or treated the applicant

and that in his or her professional opinion

the condition is currently in remission and

has been in remission for at least the

previous 12 months.

3. One year is deducted if the applicant

provides letters of recommendation from three

or more persons who are not relatives of the

applicant and who have known the applicant

for at least the five years imm ediately

preceding the application.

4. One year is deducted for each associate

degree, bachelorÓs degree, masterÓs degree or

other higher education degree earned by an

applicant from an accredited institution of

higher learning subsequent to the commissi on

of the crime which is the basis for the

disqualifying period.

5. One year is deducted if the applicant has

performed 180 or more hours of volunteer work

for a charitable organization within the

three years immediately preceding the

application, as evi denced by a letter signed

by an official of the charitable organization

where the volunteer hours were performed.

6. One year is deducted if the applicant has

held one or more professional licenses from

any jurisdiction or professional licensing

organiza tion for at least one year within the

five years immediately preceding application

and subsequent to the commission of the crime

which is the basis for the disqualifying

period, and only if the applicant held the

license during that time period without

adm inistrative action being taken.

7. One year is deducted if the applicant has

been employed at least 40 hours per week for

a continuous two year period within the five

years immediately preceding the application.

8. One year is deducted if the applicant has

served at least one year in the United States

Armed Forces, active or reserves, subsequent

to the commission of the crime which is the

basis for the disqualifying period and

provided any discharge was without an Other

Than Honorable Discharge designat ion.

(b) The burden is on the applicant to

establish these Mitigating Factors. Any of

the Mitigating Factors above that involve a

state or governmental agency, a university or

school, or a court must be established by

providing a certified true copy of the

document proving that Mitigating Factor.

68. From the 25 - year disqualifying period, Petitioner would

be entitled to deductions of one year each for any proven

mitigation factors. As provided in the rule, Petitioner,

asserting the affirmative of thi s issue, has the burden to prove

entitlement to any mitigation factors.

69. Based on the findings above, Petitioner is entitled to

a deduction of four years, based on mitigation factors three,

five, six, and seven.

70. Petitioner failed to prove that he is entitled to a

deduction for the mitigation factor for charitable volunteer

hours. The rule plainly requires that Petitioner prove his hours

volunteering for charitable organizations with evidence in the

form of Ða letter signed by an official of the ch aritable

organization where the volunteer hours were performed.Ñ While

Petitioner would have been allowed to submit such evidence at

hearing , even though it was not provided with his application,

Petitioner did not offer any such evidence at hearing.

71. Petitioner did not claim entitlement to any other

mitigation factors, and it appears that Petitioner would not

qualify for any others, such as the mitigation factor for crimes

committed as a young adult, at age 21 or younger and before

age 22. Petitioner was in his mid - twenties when he committed the

crimes resulting in the three judgments of conviction.

72. Thus, if PetitionerÓs crimes are deemed subject to the

disqualifying period in section 626.207(4), instead of the

permanent bar, then four years shou ld be deducted, reducing the

disqualifying period to 21 years.

73. The final step is to determine the date from which the

disqualifying period runs. Section 626.707(6) provides in this

regard that Ðthe disqualifying periods begin upon the applicantÓs

fin al release from supervision or upon completion of the

applicantÓs criminal sentence, including payment of fines,

restitution, and court costs for the crime for which the

disqualifying period applies.Ñ

74. Petitioner proved the dates on which he completed his

three probationary terms. However, he did not prove when he

completed payment of all fines, restitution, and court costs

imposed as part of his three sentences. The earliest possible

date of completion of all of these requirements would be

August 9, 1999, the date on which Petitioner completed the last

of his probationary terms. If that were shown to be the

applicable start date for his disqualifying period, then

disqualification would end 21 years later, in August 2020.

75. Thus, if Petitioner is ultimately determined to be

subject to this disqualifying period, instead of being

permanently barred, then if he submits an application after the

disqualifying period, he should be prepared to submit proof of

not only when he completed probation, but also , when he completed

payment of all fines, restitution, and court costs imposed with

his sentences.

Proof of Rehabilitation, Fitness, and Trustworthiness

76. Petitioner contends that his two convictions for crimes

involving fraud fall under the permanent b ar in section

626.707(3), which, he contends, cannot be applied to him because

his right to vote was restored in New Jersey by operation of law,

and he was allowed to register to vote in Florida. Petitioner

also contends that those two convictions cannot be considered

under section 626.707(4), although he concedes that Kauk , et al.,

do not have any impact on the statutory disqualifying periods.

(Pet. PRO at 19). Thus, according to Petitioner, the

disqualifying period can only apply to the one conviction that is

not deemed a felony involving fraud. This argument is rejected.

If, under Kauk , et al., the permanent bar in section 626.707(3)

has to be interpreted to not apply to PetitionerÓs two

convictions, then consideration of those two convictions would

fall to section 626.707(4), because they would not be subject to

the permanent bar.

77. If PetitionerÓs position were to prevail, then the

disqualifying period for one conviction of crimes involving moral

turpitude would be 15 years, reduced by four years , to an 11 - year

disqualifying period. However, Petitioner did not present proof

as to the date from which that disqualifying period would run.

Thus, even under PetitionerÓs theory, it still cannot be

concluded that PetitionerÓs disqualifying period has b een met.

78. If Petitioner had established that he is not

permanently barred and is no longer disqualified from applying

for licensure as an insurance adjuster, then section 626.707(7)

would apply, providing as follows:

After the disqualifying period has been met,

the burden is on the applicant to demonstrate

that the applicant has been rehabilitated,

does not pose a risk to the insurance - buying

public, is fit and trustworthy to engage in

the business of insurance pursuant to

s. 626.611(1)(g), and is oth erwise qualified

for licensure.

79. Respondent does not dispute that, with the exception of

PetitionerÓs criminal history and the implications of that

history on PetitionerÓs trustworthiness and fitness to conduct

business as an insurance adjuster, Petit ioner is otherwise

qualified to be a resident all - lines insurance adjuster. See

§ 626.866, Fla. Stat.

80. As recognized in Sandlin and Kauk , even if Petitioner

had proven that his civil rights had been restored by an

executive branch exercise of const itutional clemency power,

Respondent may take into account and rely on the facts underlying

the convictions. Here, however, Respondent cannot do that,

because Petitioner did not explain the facts underlying his

convictions, accept responsibility, or expre ss remorse. On this

record, it is impossible to conclude that Petitioner met his

burden to prove that he is rehabilitated, and that despite his

past crimes, he is trustworthy and fit to engage in insurance

adjusting without posing a risk to the public.

8 1 . Petitioner argues, in effect, that DFS could not deny

his application based on these considerations, because DFS

previously issued a license to him with knowledge of the same

felony convictions. This argument is rejected. First, between

the time of PetitionerÓs first application for licensure and the

application at issue in this case, the Legislature amended

section 626.707, making the qualifications for licensure more

stringent by adopting more expansive statutory disqualifications.

PetitionerÓs cu rrent application, unlike the prior application,

must be judged under the law now in effect. See, e.g. ,

Giamberini , 162 So. 3d at 1138 (applying statutory bar to

certification as a fire safety inspector ; appellantÓs prior

certification as a firefighter un der an earlier statutory scheme

that did not disqualify appellant was irrelevant ); Carter v.

DepÓt of Fin. Servs. , 117 So. 3d 476 (Fla. 1st DCA 2013)

(affirming DFS final order that applied section 626.707(4), as

amended in 2011, to conclude that appellant was disqualified for

15 years from applying to reinstate a suspended resident all -

lines adjuster license, based on the same no - contest plea to a

felony for aggravated assault by threat, deemed to be a crime

involving moral turpitude, that resulted in the license

suspension); Emiddio v. Off . of Fin. Reg. , 147 So. 3d 587 (Fla.

4th DCA 2014) (Office of Financial Regulation was not precluded

from determining appellantÓs 2002 convictions for felonies

involving fraud barred her from obtaining a loan originatorÓs

license, even though appellant previously was licensed as a

mortgage broker despite those convictions, where amended law

required licensed mortgage brokers to file new applications for

licensure as loan originators, with more stringent standards and

new p rovisions for permanent bars based on prior convictions).

82. In any event, there is no record evidence proving the

basis upon which DFS made its determination to issue a license to

Petitioner under prior law. While Petitioner said that he

submitted cer tified court records regarding his convictions, only

two of the three sets of certified court records appear to have

come from PetitionerÓs old application file, raising a question

regarding whether Petitioner fully disclosed his criminal

background. Comp are Resp. Exh. 2 (court records of PetitionerÓs

1996 conviction, certified in 2016) with Resp. Exhs. 3 and 4

(certified court records from PetitionerÓs two 1995 convictions,

bearing RespondentÓs received stamp dated in 2010).

83. In addition, it is unkno wn whether and to what extent

Petitioner provided Respondent with an explanation of the

circumstances surrounding his criminal convictions when

Petitioner first applied for licensure in 2009 or 2010, whether

and to what extent he took responsibility and ex pressed remorse

for his criminal past, and whether and to what extent he

demonstrated his rehabilitation.

84. The determinations in this case can only be made on the

basis of the evidence of record presented at hearing. Based on

the record evidence, eve n if Petitioner had proven that his civil

rights were restored through an exercise of the executive

branchÓs constitutional clemency power, and that any applicable

disqualifying period had passed, Petitioner failed to meet his

burden of proving that he is rehabilitated, and that he is

trustworthy and fit to engage in business as an insurance

adjuster without risk to the public. See § 626.707(7), Fla.

Stat. (applicant with a criminal background has the burden to

demonstrate that he has been rehabilitated, d oes not pose a risk

to the insurance - buying public, is fit and trustworthy);

§ 626.866(3), Fla. Stat. (requiring applicant for all - lines

insurance adjuster to demonstrate that he is trustworthy,

providing reasonable assurance that he will carry out his

bu siness as an insurance adjuster fairly and in good faith

without detriment to the public); § 626.611(1)(g), Fla. Stat.

(requiring Department to refuse adjuster licensure for a

demonstrated Ðlack of fitness or trustworthiness to engage in the

business of in surance.Ñ).

85. PetitionerÓs testimony describing his business

activities, his family, and community involvement was helpful,

but only to an extent. This evidence did not demonstrate

PetitionerÓs fitness to act as an insurance adjuster. Petitioner

ackn owledged that his business, started in 1998, does not engage

in insurance adjusting; instead, the business has provided

technical support services to clients who are licensed adjusters

performing the actual adjusting work. The sworn testimony on

Petitione rÓs behalf was provided only by Petitioner and was very

limited. The letters of recommendation by persons knowing

Petitioner were sufficient to meet the requirements of a

mitigation factor, but were not competent evidence in lieu of

sworn testimony by cha racter witnesses.

86. Most significantly, Petitioner was vague and evasive

about his criminal background, offering no explanation for the

circumstances leading to his criminal convictions, not expressly

accepting responsibility for his past wrongs, and n ot expressing

remorse. These are glaring omissions. While PetitionerÓs

convictions were a long time ago, they did involve multiple

criminal incidents that spawned multiple charges for fraudulent

use of credit cards, theft, forgery, deception -- all of whic h

raise concerns about PetitionerÓs trustworthiness and fitness to

deal with other peopleÓs money. It was up to Petitioner to

alleviate those concerns, but he did not.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RE COMMENDED that the Department of Financial Services

issue a final order denying PetitionerÓs application for

licensure as a resident all - lines insurance adjuster.

DONE AND ENTERED this 14th day of April , 2017 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 14th day of April , 2017 .

ENDNOTE S

1/ In his PRO, Petitioner acknowledged that DFS pointed out that

he had incorrectly marked ÐnoÑ on one of these questions. The

only question that DFS ask ed Petitioner about at hearing was the

first question on page three, asking whether Petitioner had been

convicted of certain felony crimes, including crimes involving

fraud. PetitionerÓs PRO proposes a finding that answering this

question ÐnoÑ in the appl ication was an oversight, in that

Petitioner had provided DFS with the certified court documents

detailing the charges. (Pet. PRO at 4, fn. 1). No record

citation is offered for the ÐoversightÑ proposed finding;

Petitioner did not explain at hearing why he answered no to that

question and the other two questions.

2/ PetitionerÓs prior license application, filed in 2009 or 2010

and apparently completed with documents filed with DFS in 2010,

was approved under then - existing laws. However, DFS considers

the prior license expired by operation of law. PetitionerÓs

efforts to have his prior license reactivated are the subject of

the separate controversy between the parties. At some point,

when Petitioner did not hear from DFS regarding that separate

contro versy, Petitioner decided to file a new application for

licensure, and that is the license application that is the

subject of this proceeding. As discussed on the record at

hearing, although Petitioner views the two matters as related,

they are related on ly in the sense of being alternative, mutually

exclusive pathways towards PetitionerÓs objective of licensure.

PetitionerÓs failure to successfully resolve the separate

controversy is the reason why he chose to file the application to

become licensed that is at issue in this case. But his reasons

for filing the license application have no bearing on whether the

application should be approved or denied.

3/ Petitioner objected to the admission of certified copies of

court records of his convictions in New Jersey, even though he

admitted that he provided certified court records to DFS to

document his criminal history in connection with his 2010

application. Two of the three sets of certified court records

bear DFS ÐreceivedÑ stamps in June 2010. One set o f certified

court records was obtained more recently; it is unknown if

Petitioner did not previously supply DFS with records of this

third felony conviction. The certified court records

(RespondentÓs Exhibits 2, 3, and 4) were admitted over

PetitionerÓs o bjections, primarily based on hearsay. The

undersigned agrees with Respondent that the documents are self -

authenticating and admissible as public records. Moreover, as

official court records, those documents are considered

sufficiently reliable and indis putable to qualify for official

recognition under the judicial notice statute, section 90.202(6),

Florida Statutes. See, e.g. , N.W. v. DepÓt of Child. & Fam. , 865

So. 2d 625 (Fla. 4th DCA 2004) (trial court properly took

judicial notice of court orders; p er a leading evidence treatise,

a court record is not subject to dispute; either it is or is not

the record of a court, and when it is shown to the satisfaction

of the trial judge that a document is a record of a court, then

the judge should judicially not ice it). Petitioner was asked to

brief his hearsay objection in his PRO, but instead of offering

support for his objection, Petitioner proposed findings of fact

based solely on the New Jersey courtsÓ three judgments of

conviction, accepting the certified court records as appropriate

predicates for findings of fact. See Pet. PRO at 5 - 6.

4/ Counsel for Petitioner attempted to elicit testimony from his

DFS witness that DFS conducted an independent investigation to

confirm that PetitionerÓs civil rights wer e restored in New

Jersey, and that in the Ðprofessional opinionÑ of the DFS

witness, PetitionerÓs civil rights were, in fact, restored in New

Jersey. However, restoration of civil rights is an act that is

subject to proof; it is not a matter of opinion. The testimony

of the DFS witness was not competent to prove that PetitionerÓs

civil rights were, in fact, restored in New Jersey.

5/ Petitioner requested official recognition of section 19:4 - 1,

New Jersey Statutes, because Petitioner argued that subsecti on

(6) provided indirect evidence from which it can be inferred that

PetitionerÓs civil rights have been restored in New Jersey.

Subsection (6) provides that the right to vote is taken away from

a person Ð[w]ho has been convicted of a violation of any of the

provisions of this Title , for which criminal penalties are

imposed, if such person shall be deprived of such right as part

of the punishment therefor according to law, unless pardoned or

restored by law to the right of suffrage.Ñ (emphasis added).

Ho wever, PetitionerÓs convictions were not for violations of any

provision of Title 19. Moreover, even if Petitioner had been

able to show subsection (6) were applicable to him instead of

subsection (8), Petitioner would have also had to show that he

had be en pardoned or restored by law to the right to vote.

Pursuant to section 2A - 167 - 5, New Jersey Statutes: ÐAny person

who has been convicted of a crime and by reason thereof has been

deprived of the right of suffrage or of any other of his civil

rights or privileges, . . . may make application for the

restoration of the right of suffrage or of such other rights or

privileges . . . , which application the governor may grant by

order signed by him.Ñ Petitioner admitted that he never applied

for restoration o f his civil rights, and he has no order from the

governor granting restoration of his civil rights. Instead,

subsection (8) applies to Petitioner, not subsection (6), and by

virtue of the applicable law, one of PetitionerÓs civil rights --

the right to vote -- was only taken away until his probation ended.

6/ Petitioner argues in his PRO that it would be appropriate to

consider the hearsay testimony regarding confirmation from the

state of New Jersey, because it corroborates PetitionerÓs

testimony that his u nderstanding is that his civil rights were

restored upon completion of probation Ðand everything.Ñ However,

that is not what Petitioner said. He said that he verified the

completion (of probation and everything) with the state of New

Jersey in a phone ca ll. He did not say that he verified that his

civil rights were restored. Regardless, Petitioner failed to

offer any competent basis for his understanding, when the law and

the voter handbook refute his understanding; even if he had said

that he confirmed his understanding regarding restored civil

rights with someone in New Jersey, he cannot bolster his

unsupportable testimony by recounting that someone on the

telephone agreed with him.

7/ References to Florida Statutes are to the 2016 codification,

unle ss otherwise indicated.

8/ The law in New Jersey was different before 1970. Section

19:4 - 1 used to take away the right to vote from persons convicted

of a wide variety of crimes, including forgery (which would have

implicated Petitioner), unless and un til the convicted person was

pardoned or restored by law to the right to vote. These

disqualification provisions, with the exception of the provision

disqualifying persons who commit violations of Title 19

(elections law), were declared unconstitutional i n Stephens v.

Yeomans , 327 F. Supp. 1182 (D.C.N.J. 1970). Thereafter, the law

was amended to provide that persons committing indictable

offenses lose the right to vote until they complete their

sentence, parole, and probation (§ 19:4 - 1(8), N.J. Stat.), wh ile

those who commit violations of the elections law are disqualified

from voting until they are pardoned or restored by law (§ 19:4 -

1(6), N.J. Stat.).

COPIES FURNISHED:

Matthew R. Daley, Esquire

Department of Financial Services

200 East Gaines Street

T allahassee, Florida 32399

(eServed)

Marshawn Michael Griffin, Esquire

Florida Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

(eServed)

John E. Terrel, Esquire

John E. Terrel, P.A.

Suite 11 - 116

1700 North Monroe Stree t

Tallahassee, Florida 32303

(eServed)

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.