The proposed amendments will update the rules by incorporating statutory changes, clarifying current rule requirements, and making other necessary changes.

 

DEPARTMENT OF FINANCIAL SERVICES

Division of Insurance Agent and Agency Services

RULE NOS.:RULE TITLES:

69B-211.041Definitions

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

PURPOSE AND EFFECT: The proposed amendments will update the rules by incorporating statutory changes, clarifying current rule requirements, and making other necessary changes.

SUMMARY: Rule 69B-211.041, F.A.C., is being repealed and the definitions contained therein are being moved to rule 69B-211.042, F.A.C. The proposed changes to rule 69B-211.042, F.A.C., will: define the terms “applicant,” “application,” “charge,” “felony,” “financial services business,” “law enforcement record,” “misdemeanor,” and “pre-trial intervention;” specify the documents that applicants with criminal backgrounds must submit; clarify the treatment of sealed or expunged criminal records; replace the $1,500 administrative penalty with a 90-day disqualifying period if the applicant fails to accurately answer questions about the applicant’s law enforcement record; provide for permanent bars from licensure and disqualifying periods (ineligibility for licensure) for applicants with certain crimes or multiple crimes; provide criteria for evaluating an applicant’s fitness for licensure due to a pardon or restoration of civil rights; and make other necessary changes.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the potential impact of the proposed rule amendments and repeal determined that there will be no adverse economic impact or increased regulatory costs that would require legislative ratification.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 624.308, 626.207, 626.9954, 626.9958, 634.021, 634.302, 634.402 FS.

LAW IMPLEMENTED: 112.011, 624.307(1), 626.112, 626.161, 626.171, 626.172, 626.201, 626.207, 626.211, 626.291, 626.601, 626.611, 626.621, 626.631, 626.641, 626.9951, 626.9953, 626.9954, 626.9957, 634.171, 634.318, 634.420, 642.036, 943.0585(6), 943.059(6) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: May 8, 2023 at 10:00 a.m.

PLACE: Room 116, Larson Building, 200 E. Gaines Street, Tallahassee, FL

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: David Jones, Chief, Bureau of Licensing, 200 E. Gaines Street, Tallahassee, FL 32399-0318; [phone] or [e-mail].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

69B-211.041 Definitions.

Rulemaking Authority 624.308, 626.207 FS. Law Implemented 112.011, 624.307(1), 626.161, 626.171, 626.201, 626.207, 626.211, 626.291, 626.601, 626.611(7), (14), 626.621(8), 626.631, 626.641 FS. History–New 10-17-02, Formerly 4-211.041, Amended 8-27-12, Repealed __________.

 

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

(1) For the purposes of this Rule Chapter, the following definitions will apply:

(a) “Applicant” means an individual applying for licensure or relicensure under Chapters 626, 634, or 642, F.S., and an officer, director, majority owner, partner, manager, or other person who manages or controls an entity applying for licensure or relicensure under Chapters 626, 634, or 642, F.S.

(b) “Application” or “application process” refers to an application for licensure procedurally processed under Chapters 626, 634, or 642, F.S.

(c) “Charge” or “charges” refers to the official allegations contained in the official document setting out the crimes that an applicant is alleged to have committed, including an “information,” “indictment,” or other document that specifies the charges against an applicant.

(d) “Felony” means and includes any crime of any type, whether or not related to insurance, which crime is designated as a “felony” by statute in the jurisdiction of prosecution, or designated as a “felony” in the charges. If a crime is a felony in the jurisdiction of prosecution, it will be treated as a felony under this rule notwithstanding that the same activity is not a felony in Florida. The term “felony” includes felonies of all degrees.

(e) “Financial services business” means any financial activity regulated by the Department of Financial Services, the Office of Insurance Regulation, or the Office of Financial Regulation.

(f) “Law enforcement record” includes the following:

1. Any criminal charge filed against the applicant in the courts of any state or federal district or territory, or other country, for which the applicant pled guilty or no contest, regardless of whether there was an adjudication of guilt by the court, or for which the applicant was found guilty, and regardless of whether the matter is under appeal by the applicant; and,

2. Criminal charges that were subsequently pardoned or for which civil rights have been restored. The phrase includes criminal charges which, at the time of the application, are under an order to seal by a court of competent jurisdiction; and

3. All criminal charges against the applicant, whether by information or other charging document, even where no formal determination of disposition has been made.

(g) “Misdemeanor” means and includes any crime of any type which is designated as a “misdemeanor” by statute in the jurisdiction of prosecution, or is so designated in the charges. If a crime is considered a misdemeanor in the jurisdiction of prosecution, it will be treated as a misdemeanor under this rule chapter notwithstanding that the same activity is not a misdemeanor in Florida. The term includes misdemeanors of all degrees.

(h) “Pre-trial intervention” refers to a program operated under section 948.08, F.S., or a similar program in the state of Florida or any other jurisdiction.

(1) renumbered as (2) No change.

(a) No change.

(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 will 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.

(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:

1. A true and complete copy of the police arrest affidavit or arrest report or similar document for all arrests.

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

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

4. A certified true and complete 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.

5. A true and complete copy of any order of restoration of civil rights.

6. A true and complete copy of any order sealing court records.

7. A true and complete copy of any order expunging court records.

8. A true and complete copy of any pardon.

(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 must shall supply a certified or sworn statement, signed by a representative of the agency that would have been the custodian of such documentation. , The custodian must indicate indicating that documentation of such matter does not exist or that the record was lost, damaged or destroyed, or otherwise indicate indicating why the documentation cannot be produced. All requested documentation must be legible.

(e) All requested documentation must be legible.

(e) renumbered as (f) No change.

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

(a) No change.

(b)1. If an applicant fails to accurately and truthfully answer Department questions about the applicant’s law enforcement record related to felonies, or financial services business based misdemeanors, the application will shall be denied. and a A disqualifying period of 90 days will 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 $1,500.00. This includes answering any application question about the existence of law enforcement records in the negative when an affirmative answer was appropriate. The This one-year disqualifying period will shall begin the later of: (1) the date the Department’s denial of the initial application becomes final; or (2) the end of any disqualifying period based on the criminal history of the applicant. The mitigating factors in subsection (6) (7), below, will shall not be used to reduce the amount of the disqualifying period for failure to disclose. The Department will not consider any application by the same applicant for a similar license dated or filed within 30 days of a denial issued pursuant to this subsection.

2. 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 will shall suspend or revoke each license currently held by the licensee pursuant to sections 626.611 and 626.9957 626.9953, F.S.

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

(a)  The seven-year disqualifying period applies 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. 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 section 626.207(1), F.S., which shall also apply to the same term used in section 626.9954(3)(c), F.S.

(b) A crime is directly related to the financial services business as defined in sections section 626.207(1) or 626.9951, F.S., or rule 69B-211.042(1), F.A.C., if 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 commission or furtherance of the crime.

(c) For the purposes of this rule, the seven year disqualifying period in sections 626.207(3)(b) and 626.9954(3)(b), F.S., applies 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 $500.00 or less.

(5) (4) Applicants With Multiple Crimes.

(a) Where an applicant has committed multiple crimes, a base period of disqualification and an additional period of disqualification will be calculated as follows 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:

1. The base period is the disqualifying period which is, or was, the last to expire.

2. 1. Five years will be added to the base disqualifying period for each additional felony involving moral turpitude but not subject to the permanent bar in section 626.207(2) or 626.9954(2), F.S.;

3. 2. Two years will be added to the base disqualifying period for each additional felony not involving moral turpitude and not subject to the permanent bar in section 626.207(2) or 626.9954(2), F.S.; and,

4. 3. Two years will be added to the base disqualifying period for each additional misdemeanor directly related to a financial services business.

(b) The additional disqualifying period shall be added to the disqualifying period for the most serious crime, and the combined total disqualifying period will begin upon then run from the date of the applicant’s final release from supervision or completion of the sentence for the most recent crime upon which the base period is established that would be subject to a disqualifying period under section 626.207(3) 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 transaction, 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 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. In such cases, the crime with the longest associated disqualifying period will be used for the base period calculation.

(6) (5) Mitigating Factors.

(a) If applicable, the mitigating factors listed below will may be used to shorten the total disqualifying period only when the 15- fifteen year disqualifying period established in sections section 626.207(3)(a) or 626.9954(3)(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 when the 15- fifteen year disqualifying period is applicable; however, the 15- 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 626.207(3)(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 (3)(b)1. (2)(b)1., above. The following mitigating factors may apply:

1. One year is deducted if the applicant was age 21 twenty-one or younger when the felony crime which is the basis for the disqualifying period was committed and if there are no felony crimes on the applicant’s law enforcement record after reaching the age of 22 twenty-two.

2. One year 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 which is the basis for the disqualifying period and the applicant furnishes a letter from 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 months.

3. through 6. No change.

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 as evidenced by a letter from the employer(s), tax forms, or pay stubs.

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 the any discharge was without an other than honorable discharge designation.

(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 and complete copy of the document proving that mitigating factor.

(7) (6) Aggravating Factors.

(a) The following aggravating factors apply:

1. No change.

2. 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;

3. through 6. No change.

(b) No change.

(7) renumbered as (8) No change.

(8) renumbered as (9) No change.

(9) Pre-Trial Intervention. The 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 626.207, F.S.

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

(a) Pursuant to sections 943.0585(6) and 943.059(6), F.S., an applicant is not required to disclose or acknowledge, and is not 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.

(b) The 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.

(c) renumbered as (b) No change.

(c) An expunged crime will not be considered by the Department as a basis for denial or disqualification of an applicant.

(11) Disclosure and Effect of a Pardon or Restoration of Civil Rights.

(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.

(a) (b) A pardoned crime for which an applicant has been granted a pardon or has had his or her civil rights restored under chapter 940, F.S., and section 8, Article IV, Florida Constitution, generally will not be subject to the disqualifying periods in sections 626.207(2) and (3), F.S., or sections 626.9954(2) and (3), F.S., unless such clemency specifically excludes licensure in the financial services business considered against the applicant by the Department. The applicant’s fitness and trustworthiness after a pardon or restoration will be evaluated as provided in section 626.207, F.S., according the following factors:

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

1. The facts and circumstances of the criminal offense for which the pardon was granted or the applicant’s civil rights were restored.

2. 1. The applicant’s criminal history, if any, subsequent to the pardon or restoration of rights. applicant has subsequently been found guilty, or pled guilty or nolo contendere, to any felony or misdemeanor regardless of adjudication; or

3. 2. Whether the applicant has completed any supervision or sanction associated with any crime. The pardoned crime directly involved the business of insurance.

(d) If a pardoned crime falls within either of the two exceptions contained in subparagraph (11)(c)1. or 2., above, the Department shall apply the disqualifying periods set out in sections 626.207 and 626.9954(3), F.S.

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

(12) Effect of Varying Terminology.

(a) For purposes of this rule, if the applicant’s crime is not defined or categorized as a felony or misdemeanor crime 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 will 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.

(b) through (c) No change.

(13) Supervised Imprisoned Persons. Notwithstanding any provision to the contrary in this rule, The the Department will shall not license any applicant under chapter 626, F.S., while the applicant is imprisoned, in custody, under supervision, on probation, or serving a sentence, or in a pre-trial intervention, diversion, or other similar program, for any felony or misdemeanor directly related to the financial services business crime.

(14) Effect of Disqualifying Periods. The disqualifying periods applied pursuant to sections 626.207 or and 626.9954(3), F.S., or 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.

(15) Foreign Law Enforcement Records. In the event that a law enforcement record includes convictions, charges, or arrests outside the United States, the Department will shall consider the following factors to reduce, eliminate, or apply a disqualifying period or to determine if the permanent bar under sections 626.207(2) or and 626.9954(2), F.S., is applicable:

(a) through (b) No change.

Rulemaking Authority 624.308, 626.207, 626.9954, 626.9958, 634.021, 634.302, 634.402 FS. Law Implemented 112.011, 624.307(1), 626.112, 626.161, 626.171, 626.172, 626.201, 626.207, 626.211, 626.291, 626.601, 626.611, 626.621, 626.631, 626.641, 626.9951, 626.9953, 626.9954, 626.9957, 634.171, 634.318, 634.420, 642.036, 943.0585(6), 943.059(6) FS. History–New 10-17-02, Formerly 4-211.042, Amended 7-21-04, 8-27-12, 11-26-14, __________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: David Jones, Chief, Bureau of Licensing

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jimmy Patronis, Chief Financial Officer

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 30, 2023

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 1, 2022