131 So. 3d 805
Fla. Dist. Ct. App.2014Background
- Kauk, a Florida resident, applied for licensure as a resident life insurance agent in 2012 but was denied and barred due to his 1999 convictions for manufacturing and passing counterfeit Federal Reserve notes.
- Civil rights restoration occurred in 2010, except for firearm ownership, and Kauk argued this restoration invalidated a per se bar under section 626.207(3).
- The Department relied on 2011 amendments to permanently bar felonies involving fraud and related statutes (626.207(3), (4), and 626.611(1),(7),(14)) to deny licensure.
- A Department hearing officer recommended approval, finding rehabilitation and fitness, while the Department ultimately denied based on the per se bar and related policy concerns.
- The Florida First District Court of Appeal remanded, holding that per se denial cannot be imposed on a restored felon and Sandlin-based analysis must be applied to assess current fitness.
- The court reversed and remanded for entry of an order consistent with its opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a per se bar applies to restored felons under 626.207(3). | Kauk argues restored civil rights negate per se denial. | Department asserts 626.207(3) governs denial as a per se bar. | Per se bar cannot be applied to restored felons; remand for proper analysis. |
| Whether Sandlin requires denial of licensure despite rehabilitation findings. | Sandlin allows consideration of underlying conduct when fully rehabilitated. | Sandlin supports denial based on policy and underlying crimes. | Sandlin permits consideration of rehabilitation; cannot deny where findings show fitness; remand. |
Key Cases Cited
- Sandlin v. Criminal Justice Standards & Training Comm'n, 531 So.2d 1344 (Fla. 1988) (per se bar unconstitutional; may deny only after evaluating fitness)
- G.W. Liquors of Collier, Inc. v. Department of Business Regulation, 556 So.2d 464 (Fla. 1st DCA 1990) (extended Sandlin to restored felons)
- Albert v. Fla. Dep't of Law Enforcement, Criminal Justice Standards & Training Comm'n, 573 So.2d 187 (Fla. 3d DCA 1991) (moral fitness questions fact-intensive)
- Yeoman v. Constr. Ind Licensing Bd., 919 So.2d 542 (Fla. 1st DCA 2005) (moral fitness standards in licensing)
- Palamara v. State, Dep’t of Bus. & Prof'l Reg., 855 So.2d 706 (Fla. 4th DCA 2003) (licensing considerations of character)