69B-211.042. Effect of Law Enforcement Records on Applications for Licensure  


Effective on Wednesday, November 26, 2014
  • 1(1) Law Enforcement Records and Required Documentation. 8The Department uses Law Enforcement Records to determine whether an applicant is subject to the permanent bar or disqualifying periods set forth in Section 32626.207 33or 34626.9954, F.S., 36or otherwise qualifies for licensure under the Florida Insurance Code, including determining whether an applicant is fit and trustworthy pursuant to subsection 58626.611(7), F.S., 60or has the requisite character pursuant to paragraph 68626.9953(3)(g), F.S.

    70(a) As provided by statute and upon the Department’s request, an applicant for licensure is required to disclose the applicant’s Law Enforcement Record. During the application process, which process continues up to the time of the issuance of a license or the denial of the application, the applicant is required to accurately and truthfully answer questions about the applicant’s Law Enforcement Record. The applicant is responsible for the accuracy of all information contained in any application submitted by the applicant or submitted by another person on the applicant’s behalf, including documents or information submitted during the application process related to the Law Enforcement Record.

    174(b) As provided by statute, an applicant must provide the Department with fingerprints and permit the Department to obtain the applicant’s Law Enforcement Record from the Florida Department of Law Enforcement and/or the Federal Bureau of Investigation. The Department shall not process an application when fingerprints are required until the Department receives readable and properly executed fingerprints. Applications are incomplete until fingerprints are received.

    238(c) At the direction of the Department, as a part of the application process, and in addition to the application, the following documentation is required to be submitted by the applicant:

    2691. A copy of the police arrest affidavit or arrest report or similar document for all arrests.

    2862. A certified true copy of the charging document, such as an information, indictment, or ticket.

    3023. A certified true copy of the plea, judgment, and sentence.

    3134. A certified true copy of the order of entry into pre-trial intervention, where applicable, and the order of termination of pre-trial intervention showing dismissal of the charges.

    341(d) If during the application process the Department requests that an applicant  submit documentation related to the applicant’s Law Enforcement Record but that documentation cannot be obtained because the document no longer exists, the applicant shall supply a certified or sworn statement, signed by a representative of the agency that would have been the custodian of such documentation, indicating that documentation of such matter does not exist or that the record was lost, damaged or destroyed, or otherwise indicating why the documentation cannot be produced. All requested documentation must be legible.

    432(e) The requirements set forth in paragraphs (a) through (d) above continue throughout the application process and apply to all types of applications including initial applications, applications for additional licenses and applications for reinstatement of a previously suspended license.

    471(2) Effect of Failure to Truthfully Answer Application Questions Regarding Applicant’s Law Enforcement Record.

    485(a) The existence of an applicant’s Law Enforcement Record is considered a material element of the application and the application process and the failure to accurately and truthfully answer application questions or Department requests regarding the Law Enforcement Record is considered a material misrepresentation or material misstatement under subsection 534626.611(2) 535or paragraph 537626.9957(3)(e), F.S.

    539(b)1. If an applicant fails to accurately and truthfully answer Department questions about the applicant’s Law Enforcement Record the application shall be denied and a disqualifying period of one year shall be imposed before the applicant may reapply for or be granted any license. As an alternative to a one-year disqualifying period, the applicant may elect to pay an administrative penalty of $1500. 602This includes answering any application question about the existence of Law Enforcement Records in the negative when an affirmative answer was appropriate. This one-year disqualifying period shall begin the later of: (1) the date of the initial application or (2) the end of any disqualifying period based on the criminal history of the applicant. The Mitigating Factors in Section 7, below, shall not be used to reduce the amount of the disqualifying period for failure to disclose.

    6792. If the Department discovers that an applicant failed to accurately and truthfully answer any question relating to Law Enforcement Records after a license has been granted, the Department shall suspend or revoke each license currently held by the licensee pursuant to Sections 722626.611 723and 724626.9953, F.S.

    726(3) Classification of and Treatment of Certain Felony and Misdemeanor Crimes.

    737(a) Application for licensure shall not be denied or subjected to a disqualifying period based solely on the fact that an applicant was found guilty of, or pled guilty or nolo contendere to, a misdemeanor, unless the misdemeanor is directly related to the financial services business as defined in subsection 787626.207(1), F.S., 789which shall also apply to the same term used in paragraph 800626.9954(3)(e), F.S.

    802(b) 803A crime is directly related to the financial services business as defined in subsection 817626.207(1), F.S., 819if a financial services business, a financial services business relationship, a financial services business resource, or a transaction relating to or involving a financial services business, was used in the furtherance of the crime.

    853(c) 854For the purposes of this rule, the seven year disqualifying period in paragraphs 867626.207(4)(b) 868and 869626.9954(3)(b), F.S., 871applies to all felony cases involving the passing or uttering of a worthless bank check, or obtaining property in return for a worthless bank check or any other check-related felony where the check or property involved is worth $500 or less.

    912(4) Applicants With Multiple Crimes.

    917(a) 918Where an applicant has more than one crime subject 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:

    9631. Five years to the disqualifying period for each additional felony involving moral turpitude but not subject to the permanent bar in subsection 986626.207(3) 987or 988626.9954(2), F.S.;

    9902. Two years to the disqualifying period for each additional felony not involving moral turpitude and not subject to the permanent bar in subsection 1014626.207(3) 1015or 1016626.9954(2), F.S.; 1018and

    10193. Two years to the disqualifying period for each additional misdemeanor directly related to a financial services business.

    1037(b) The additional disqualifying 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 applicant’s final release from supervision for the most recent crime that would be subject to a disqualifying period under subsection 1088626.207(4) 1089or 1090626.9954(3), F.S.

    1092(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 transaction, episode, or course of conduct are treated by the Department as one crime for application of this rule. 1143The most serious crime will be used as the basis for the disqualifying period. For the crimes to be considered a single crime, the applicant must 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.

    1195(5) Mitigating Factors.

    1198(a) 1199If applicable, the Mitigating Factors listed below may be used to shorten the total disqualifying period only when the fifteen year disqualifying period established in paragraph 1225626.207(4)(a), F.S. 1227is 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 when 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 paragraphs 1297626.207(4)(b) 1298or (c) or 1301626.9954(3)(b) 1302and (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 Mitigating Factors may apply1337:

    13381. One year is deducted if the 1345applicant was age twenty-one or younger when the felony crime was committed and if there are no felony crimes on the applicant’s law enforcement record after reaching the age of twenty-two1376.

    13772. One year is deducted if 1383the applicant furnishes proof that the applicant was addicted to drugs, suffering from active alcoholism, or suffering from a 1402psychiatric disorder, at the time of the crime and the applicant furnishes a letter 1416from a medical doctor, psychologist, 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 months1471.

    14723. One year is deducted if the applicant 1480provides 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 immediately preceding the application1512.

    15134. 1514One year is deducted for each associate degree, bachelor’s degree, master’s degree or other higher education degree earned by an applicant from an accredited institution of higher learning subsequent to the commission of the crime which is the basis for the disqualifying period.

    15575. One year is deducted if the applicant 1565has performed 180 or more hours of volunteer work for a charitable organization within the three years immediately preceding the application, as evidenced by a letter signed by an official of the charitable organization where the volunteer hours were performed1605.

    16066. 1607One year is deducted if the applicant has held one or more professional licenses from any jurisdiction or professional licensing organization 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 administrative action being taken.

    16737. 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.

    17048. 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 designation.

    1754(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.

    1802(6) 1803Aggravating Factors.

    1805(a) 1806The following Aggravating Factors apply:

    18111. Two years are added to the disqualifying period if the applicant’s Law Enforcement Record indicates that a crime that is the basis of the disqualifying period victimized a natural person who was over age 65 at the time the crime was committed;

    18542. One year is added to the disqualifying period if the applicant was found by the court to have violated probation for the crime or crimes used to establish the disqualifying period and the violation was not a technical violation;

    18943. One year is added to the disqualifying period if the applicant was found to have committed a crime involving aggravated violence in which bodily injury resulted;

    19214. One year is added to the disqualifying period if any regulatory action was taken against the applicant by any regulatory authority that resulted in a penalty being imposed and was not based on failure to change an address or failure to report an administrative action;

    19675. One year is added to the disqualifying period and in addition to subsection (4) above if any regulatory action was taken against the applicant by any regulating authority for an action by the applicant that caused consumers or clients financial harm or loss in an amount over $10,000;

    20176. One year is added to the disqualifying period if the applicant’s Law Enforcement Record contains a crime that caused financial harm to any person in an amount over $10,000.

    2048(b) The burden is on the applicant to rebut evidence of any and all Aggravating Factors used by the Department to deny the application.

    2072(7) Collateral Attack on Criminal Proceedings. The Department will not allow or give any weight to an attempt to re-litigate, impeach, or collaterally attack judicial criminal proceedings or their results.

    2102(8) Effect of Pending Appeal in Criminal Proceedings; Reversal on Appeal.

    2113(a) The statutory grounds for denial of licensure exist immediately upon an entry of judgment, regardless of whether an appeal is or is not allowed to be or is being taken.

    2144(b) If on appeal the judgment is reversed, and the judgment was the basis for the Department’s denial of an application, then the applicant may reapply for licensure after providing proof of the reversal.

    2178(9) Pre-Trial Intervention. 2181The Department will not grant licensure to any person who at the time of the application is participating in a pre-trial intervention program for any crime that could be used as the basis of denial pursuant to Section 2219626.207, F.S.

    2221(10) Effect of an Order Sealing or Expunging Criminal Records.

    2231(a) An applicant is not required to disclose or acknowledge, and is permitted to affirmatively deny, any arrest or criminal proceeding when the record of such has been legally and properly expunged or sealed by order of a court of competent jurisdiction or by operation of law in the jurisdiction in which the arrest or criminal proceeding took place prior to the time of application.

    2296(b) 2297The denial or failure to disclose such arrest or criminal proceeding is not grounds for adverse action by the Department, even if the information had been previously revealed to the Department in another or previous application.

    2333(c) 2334The Department will not withhold or stay the issuance of a denial of a license application pending action on requests for sealing or expunging criminal records.

    2360(11) Disclosure and Effect of a Pardon.

    2367(a) Pardoned crimes must be reported on the application as part of the Law Enforcement Record. The applicant shall clearly indicate that a pardon has been granted for the crime, and provide supporting documentation. The burden of proof shall be on the applicant to prove the pardon by certified true copy of the pardon and related documents.

    2424(b) A pardoned crime generally will not be considered against the applicant by the Department.

    2439(c) However, this general policy is subject to the following exceptions, in which case the pardoned crime will not be ignored by the Department:

    24631. The applicant has subsequently been found guilty, or pled guilty or nolo contendere, to any felony or misdemeanor regardless of adjudication; or

    24862. The pardoned crime directly involved the business of insurance.

    2496(d) 2497If a pardoned crime falls within either of the two exceptions contained in sub-subparagraphs (11)(c)1. or 2. above, the Department shall apply the disqualifying periods set out in Section 2526626.207 2527and subsection 2529626.9954(3), F.S.

    2531(e) The Department will not withhold or stay denial of a license application pending action on requests for a pardon.

    2551(12) Effect of Varying Terminology.

    2556(a) For purposes of this rule, if the jurisdiction in which the applicant was prosecuted does not define or categorize felony crimes as they are defined or categorized in Florida as capital, first degree, second degree, or third degree felonies, the Department shall analogize the crime to the most similar crime under Florida laws by using the elements of that crime as defined in the statute of the jurisdiction in which the applicant was prosecuted and matching those elements to the most similar Florida Statute.

    2641(b) With regard to the following six subparagraphs, the Department treats each phrase in a particular subparagraph as having the same effect as the other phrases in that same subparagraph:

    26711. Adjudicated guilty; convicted.

    26752. Found guilty; entered a finding of guilt.

    26833. Pled guilty; entered a plea of guilty; admitted guilt; admitted the charges.

    26964. Nolo contendere; no contest; did not contest; did not deny; no denial.

    27095. Adjudication of guilt withheld; Adjudication withheld; no adjudication entered; entry of findings withheld; no official record to be entered; judgment withheld; judgment not entered.

    27346. Nolle prosse; nolle prosequi; charges withdrawn; charges dismissed; charges dropped.

    2745(b) When necessary, the Department will look to the substantive meaning of the terminology used in the context in which it was used under the law of the jurisdiction where it was used.

    2778(13) Imprisoned Persons. Notwithstanding any provision to the contrary in this rule, the Department shall not license any applicant under Chapter 626, F.S., while the applicant is imprisoned, in custody, under supervision, or serving a sentence, for any crime.

    2817(14) Effect of Disqualifying Periods. The disqualifying periods applied pursuant to Section 2829626.207 2830and subsection 2832626.9954(3), F.S., 2834or established in this rule do not give an applicant a right to licensure after any set period of time. After the disqualifying period, an applicant may re-apply for licensure and the law in effect at the time will apply to that application.

    2877(15) Foreign Law Enforcement Records. In the event that a law enforcement record includes convictions, charges, or arrests outside the United States, the Department shall consider the following factors to reduce, eliminate, or apply a disqualifying period or to determine if the permanent bar under subsections 2923626.207(3) 2924and 2925626.9954(2), F.S., 2927is applicable:

    2929(a) Whether the crime in the criminal record would be a crime under the laws of the United States or any state within the United States; and

    2956(b) The degree of penalty associated with the same or similar crimes in the United States.

    2972Rulemaking Authority 2974624.308, 2975626.207, 2976626.9958 FS. 2978Law Implemented 2980112.011, 2981624.307(1), 2982626.161, 2983626.171, 2984626.201, 2985626.207, 2986626.211, 2987626.291, 2988626.601, 2989626.611(7), 2990(14), 2991626.621(8), 2992626.631, 2993626.641, 2994626.9954, 2995626.9957(3)(e) FS. 2997History–New 10-17-02, Formerly 4-211.042, Amended 7-21-04, 8-27-12, 11-26-14.

     

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