STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Petitioner, )
)
vs. ) CASE NO. 89-3940
)
)
BARBARA HELEN ASKEA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, J. Stephen Menton, on September 22, 1989 in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Robert F. Langford, Jr., Esquire
Office of Legal Services
Department of Insurance and Treasurer
412 Larson Building Tallahassee, Florida 32399-0300
For Respondent: Barbara Helen Askea, pro se
2520 Northeast 5th Avenue Pompano Beach, Florida 33064
STATEMENT OF THE ISSUES
The issue in this case is whether the Respondent's life and health insurance license should be disciplined for the reasons set forth in the Administrative Complaint filed on June 15, 1989. That Complaint alleges that Respondent has violated certain provisions of the Florida Insurance Code.
Specifically, Petitioner alleges Respondent has violated Section 626.611(7), Florida Statutes as a result of a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, Section 626.611(14), Florida Statutes as a result of having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state which involves moral turpitude and/or Section 626.621(8), Florida Statutes as a result of being guilty of, or having pleaded guilty, or nolo contendere to a felony in this state.
PRELIMINARY STATEMENT
The essential allegations of the Administrative Complaint focus on a plea of guilty entered by Respondent on October 20, 1987 in Broward County Circuit Court to a charge of grand theft in the second degree. Respondent timely
requested a formal Administrative Hearing pursuant to Section 120.57, Florida Statutes (1987). The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.
At the hearing, Petitioner presented no witnesses, but offered two exhibits into evidence which were accepted without objection. Petitioner's first exhibit was a composite of the Respondent's licensure file and certified copies of the disposition of Respondent's criminal case in the Broward County Circuit Court.
Petitioner's Exhibit 2 was a portion of the transcript of the sentencing proceeding in the criminal case. Respondent testified on her own behalf, but did not offer any exhibits into evidence.
A transcript of the proceeding has been filed. Although the parties requested an opportunity to file proposed findings of facts and conclusions of law, no such proposals have been received. At the conclusion of the hearing, the Hearing Officer requested a recommendation from Petitioner as to the penalty, if any, that should be applied in this case. Counsel for Petitioner indicated that such a recommendation would be included in a proposed recommended order. However, no such proposal has been received.
FINDINGS OF FACT
At all pertinent times, Respondent has been licensed by Petitioner as a life and health insurance agent.
In October of 1987, Respondent was arrested and formally charged by the State Attorney of the Seventeenth Judicial Circuit for the State of Florida with grand theft of over $20,000.00 and three counts of perjury in an official proceeding.
The criminal charges against Respondent arose in connection with her relationship with an elderly woman who was stricken with cancer. The evidence provided only sketchy details of the circumstances that led to the criminal charges. From the evidence presented, it appears that Respondent befriended the woman a short time before she died. After the woman died, a controversy arose regarding certain transfers of property to Respondent and a will executed by the deceased woman naming Respondent as beneficiary. A civil law suit was filed contesting the will and the property transfers to Respondent. Ultimately, the will which left all of the elderly woman's property to Respondent was disallowed and certain transfers of property to Respondent were overturned. Criminal charges were initiated against Respondent by the prevailing heir.
As part of a plea bargain arrangement, Respondent entered a plea of guilty to the charge of grand theft and the three perjury counts were dismissed. The Circuit Court for Broward County withheld adjudication on the grand theft count and placed Respondent on probation for ten years with a requirement that she make restitution to the victim, an heir of the estate. The restitution required as part of the criminal proceeding was intended to compensate the prevailing heir for attorney's fees incurred in connection with the civil action.
While Respondent continues to deny any wrongdoing in her dealings with the deceased woman, she claims she had inadequate resources to fight the criminal matter further. In entering into the plea arrangement, Respondent anticipated that she would be able to continue in the insurance business. Her insurance business is the only source of income which Respondent can reasonably anticipate generating sufficient money to make the restitution payments.
It is clear from the transcript of the sentencing proceeding that the circuit court judge withheld adjudication on the grand theft charge with the understanding that by doing so the Respondent would be able to continue to sell insurance.
Respondent has been making the restitution payments required as part of her probation and she is dependent upon the continuation of her insurance business in order to make those payments in the future.
As a result of the initiation of this proceeding against Respondent by Petitioner, Respondent has been cancelled by the various insurance companies for whom she used to write insurance. Thus, she has been effectively suspended from the insurance business since shortly after the initiation of this proceeding.
No evidence was introduced that Respondent committed any other criminal offenses of any nature at any time, nor was any evidence produced of any other violations of the insurance code by Respondent since her initial licensure in 1981.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to subsection 120.57(1), Florida Statutes (1987)
The Petitioner has the burden to prove, by clear and convincing evidence, the violations alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The Administrative Complaint contains one count alleging violations of two separate subsections of Section 626.611, Florida Statutes. A violation of those subsections, if substantiated, mandates imposition of disciplinary sanctions of suspension or revocation of Respondent's license and eligibility for licensure.
That same count of the Administrative Complaint also contains an allegation that Respondent violated provisions of Section 626.621(8), Florida Statutes, which, if substantiated, permits discretion on the part of Petitioner as to the imposition of sanctions.
Section 626.611, Florida Statutes provides:
... The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:
(7) Demonstrated lack of fitness or trustworthiness to engage in the
business of insurance.
(14) Having been found guilty of, or having pleaded guilty or nolo contendere to a felony in this state or any other state which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.
Section 626.621, Florida Statutes provides:
... The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervision or managing general agent, or claims investigator, and it may suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal, is not mandatory under s. 626.611:
(8) Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.
The Administrative Complaint alleges that Respondent's plea of guilty to the offense of grand theft constitutes a "demonstrated lack of fitness or trustworthiness to engage in the business of insurance" and is therefore a basis for license revocation in accordance with Section 626.611(7), Florida Statutes.
In Paisley v. Department of Insurance, 526 So.2d 167, (Fla. 1st DCA, 1988) and Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984), the First District Court of Appeal approved the Petitioner's position that a lack of fitness or trustworthiness can be established by a criminal conviction. However, those cases do not mandate the Petitioner to revoke the license of any insurance agent convicted of a crime. Indeed, such an interpretation would render Sections 626.611(14) and 626.621(8) superfluous. If the Petitioner intends to rely on Section 626.611(7), it must present some evidence as to how the circumstances surrounding the underlying conviction demonstrate a "lack of fitness or trustworthiness." No such evidence was presented in this case.
The evidence did not establish that the charge of grand theft against Respondent was a crime which has affected or adversely impacted Respondent's fiduciary relationship to her clients or her employer insurance companies. Further, the evidence presented fails to demonstrate a potential for such a result. The evidence also fails to reflect any other objectionable incidents or blemishes on Respondent's licensure record. As a result, Petitioner's charge
that Respondent's conduct violated the provisions of Section 626.611(7) has not been sustained because the Petitioner has not established a nexus between the conviction and a "demonstrated lack of fitness or trustworthiness to engage in the business of insurance." Petitioner has not carried its burden of proving Respondent is guilty of a violation of Section 626.611(7), Florida Statutes.
The next question at issue is whether the provisions of Section 626.611(14), Florida Statutes, require the Department of Insurance to suspend or revoke Respondent's license on the grounds that she pleaded guilty to a crime involving moral turpitude. The statute does not define a crime "which involves moral turpitude."
In The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978), the Respondent was charged, in a professional disciplinary proceeding, with illegal conduct involving moral turpitude. The Florida Supreme Court stated:
Moral turpitude is discussed in 9 Fla. Jur. Criminal Law Sec. 8 as follows:
"A crime involves moral turpitude if it is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general. Unless the offense is one which by its very commission implies a base and depraved nature, the question of moral turpitude depends not only on the nature of the offense, but also the attendant circumstances..."
Specific crimes that have resulted in disciplinary proceedings include forgery, use of the mails to defraud, violation of a liquor law, larceny, petit larceny, and acceptance of stolen property.
In the instant case, Respondent entered a negotiated plea of guilty and, without a trial, was found guilty of grand theft, a felony. Grand theft is a crime involving moral turpitude. Therefore, Respondent is guilty of a violation of Section 626.611(14), and the Petitioner must take some disciplinary action' Because the proof is clear and convincing that Respondent pled guilty to a felony in this state, Petitioner has also sustained its burden of demonstrating that Respondent violated' the provisions of Section 626.621 (8), Florida Statutes. However, the Petitioner presented no evidence as to how or why it should exercise its discretionary authority to permanently revoke Respondent's license based on a negotiated plea. Since there was only limited evidence presented regarding the circumstances of the crime and both Respondent and the sentencing judge assumed that Respondent could continue her business, permanent revocation of the Respondent's insurance license would be an excessively harsh punishment given the circumstances of this case. See e.g. Davis, supra, (holding that permanent disbarment of an attorney is a harsh punishment reserved for egregious cases where rehabilitation is improbable.
The circuit court judge clearly expressed his belief that by withholding adjudication, Respondent would be able to continue in business. While that belief is not binding on the Petitioner in this case, it is pertinent
in considering how to apply discretionary disciplinary authority especially absent a factual showing of untrustworthiness or egregious conduct on behalf of Respondent. The only evidence presented regarding the facts surrounding the Respondent's conviction were the court records and Respondent's own testimony. While Respondent's explanation did not provide a complete background regarding the circumstances leading to the criminal charges, her testimony and the transcript of the sentencing hearing establish that she agreed to enter the plea because of her lack of ability to afford the expense of a trial and with a clear understanding that she could remain in business.
In considering an appropriate penalty in this case, I have considered, among other things, the nature of the crime with which Respondent was charged, the limited facts that were presented regarding the crime, the absence of any subsequent untoward conduct, and the length of time Respondent has been licensed as an insurance agent. While Respondent's plea of guilty to grand theft constitutes a violation of Section 626.611(14) and 626.621, Florida Statutes, such acts are not, under the circumstances, of a sufficiently current or severe nature as to mandate the revocation of her license. Rather, an appropriate penalty in this case is a six-month suspension retroactive to the date of filing the Administrative Complaint.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure
and eligibility for licensure for six- months.
DONE and ORDERED this 19 day of March, 1990, in Tallahassee, Florida.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19 day of March, 1990.
COPIES FURNISHED:
Robert F. Langford, Jr., Esquire Department of Insurance and Treasurer Office of Legal Services
412 Larson Building Tallahassee, Florida 32399-0300
Barbara Helen Askea
2315 Northeast 5th Avenue Pompano Beach, Florida 33064
Tom Gallagher
Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol, Plaza Level
Tallahassee, Florida 32399-0300
Don Dowdell General Counsel
Department of Insurance and Treasurer The Capitol, Plaza Level
Tallahassee, Florida 32399-0300
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF INSURANCE AND ) TREASURER, )
)
Petitioner, )
)
vs. ) CASE NO. 89-3940
)
)
BARBARA HELEN ASKEA, )
)
Respondent. )
)
AMENDED RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, J. Stephen Menton, on September 22, 1989 in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Robert F. Langford, Jr., Esquire
Office of Legal Services
Department of Insurance and Treasurer
412 Larson Building Tallahassee, Florida 32399-0300
For Respondent: Barbara Helen Askea, pro se
2520 Northeast 5th Avenue Pompano Beach, Florida 33064
STATEMENT OF THE ISSUES
The issue in this case is whether the Respondent's life and health insurance license should be disciplined for the reasons set forth in the Administrative Complaint filed on June 15, 1989. That Complaint alleges that Respondent has violated certain provisions of the Florida Insurance Code.
Specifically, Petitioner alleges Respondent has violated Section 626.611(7), Florida Statutes as a result of a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, Section 626.611(14), Florida Statutes as a result of having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state which involves moral turpitude and/or Section 626.621(8), Florida Statutes as a result of being guilty of, or having pleaded guilty, or nolo contendere to a felony in this state.
PRELIMINARY STATEMENT
The essential allegations of the Administrative Complaint focus on a plea of guilty entered by Respondent on October 20, 1987 in Broward County Circuit Court to a charge of grand theft in the second degree. Respondent timely requested a formal Administrative Hearing pursuant to Section 120.57, Florida Statutes (1987). The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.
At the hearing, Petitioner presented no witnesses, but offered two exhibits into evidence which were accepted without objection. Petitioner's first exhibit was a composite of the Respondent's licensure file and certified copies of the disposition of Respondent's criminal case in the Broward County Circuit Court.
Petitioner's Exhibit 2 was a portion of the transcript of the sentencing proceeding in the criminal case. Respondent testified on her own behalf, but did not offer any exhibits into evidence.
A transcript of the proceeding has been filed. The Respondent did not submit any post-hearing proposals. The Petitioner filed a Proposed Recommended Order. A ruling on each of Petitioner's proposed Findings of Fact is included in the Appendix attached to this Recommended Order.
FINDINGS OF FACT
At all pertinent times, Respondent has been licensed by Petitioner as a life and health insurance agent.
In October of 1987, Respondent was arrested and formally charged by the State Attorney of the Seventeenth Judicial Circuit for the State of Florida with grand theft of over $20,000.00 and three counts of perjury in an official proceeding.
The criminal charges against Respondent arose in connection with her relationship with an elderly woman who was stricken with cancer. The evidence provided only sketchy details of the circumstances that led to the criminal charges. From the evidence presented, it appears that Respondent befriended the woman a short time before she died. After the woman died, a controversy arose regarding certain transfers of property to Respondent and a will executed by the deceased woman naming Respondent as beneficiary. A civil law suit was filed contesting the will and the property transfers to Respondent. Ultimately, the will which left all of the elderly woman's property to Respondent was disallowed and certain transfers of property to Respondent were overturned. Criminal charges were initiated against Respondent by the prevailing heir.
As part of a plea bargain arrangement, Respondent entered a plea of guilty to the charge of grand theft and the three perjury counts were dismissed. The Circuit Court for Broward County withheld adjudication on the grand theft count and placed Respondent on probation for ten years with a requirement that
she make restitution to the victim, an heir of the estate. The restitution required as part of the criminal proceeding was intended to compensate the prevailing heir for attorney's fees incurred in connection with the civil action.
While Respondent continues to deny any wrongdoing in her dealings with the deceased woman, she claims she had inadequate resources to fight the criminal matter further. In entering into the plea arrangement, Respondent anticipated that she would be able to continue in the insurance business. Her insurance business is the only source of income which Respondent can reasonably anticipate generating sufficient money to make the restitution payments.
It is clear from the transcript of the sentencing proceeding that the circuit court judge withheld adjudication on the grand theft charge with the understanding that by doing so the Respondent would be able to continue to sell insurance.
Respondent has been making the restitution payments required as part of her probation and she is dependent upon the continuation of her insurance business in order to make those payments in the future.
As a result of the initiation of this proceeding against Respondent by Petitioner, Respondent has been cancelled by the various insurance companies for whom she used to write insurance. Thus, she has been effectively suspended from the insurance business since shortly after the initiation of this proceeding.
No evidence was introduced that Respondent committed any other criminal offenses of any nature at any time, nor was any evidence produced of any other violations of the insurance code by Respondent since her initial licensure in 1981.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to subsection 120.57(1), Florida Statutes (1987).
The Petitioner has the burden to prove, by clear and convincing evidence, the violations alleged in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The Administrative Complaint contains one count alleging violations of two separate subsections of Section 626.611, Florida Statutes. A violation of those subsections, if substantiated, mandates imposition of disciplinary sanctions of suspension or revocation of Respondent's license and eligibility for licensure.
That same count of the Administrative Complaint also contains an allegation that Respondent violated provisions of Section 626.621(8), Florida Statutes, which, if substantiated, permits discretion on the part of Petitioner as to the imposition of sanctions.
Section 626.611, Florida Statutes provides:
... The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit
of any service representative, supervising or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist:
* * *
(7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.
* * *
(14) Having been found guilty of, or having pleaded guilty or nolo contendere to a felony in this state or any other state which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.
Section 626.621, Florida Statutes provides:
... The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervision or managing general agent, or claims investigator, and
it may suspend or revoke the eligibility to hold a license or permit of any such person,
if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal, is not mandatory under s. 626.611:
* * *
(8) Having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state or any other state without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.
The Administrative Complaint alleges that Respondent's plea of guilty to the offense of grand theft constitutes a "demonstrated lack of fitness or trustworthiness to engage in the business of insurance" and is therefore a basis for license revocation in accordance with Section 626.611(7), Florida Statutes.
In Paisley v. Department of Insurance, 526 So.2d 167, (Fla. 1st DCA, 1988) and Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984), the First District Court of Appeal approved the Petitioner's position that a lack of fitness or trustworthiness can be established by a criminal conviction. However, those cases do not mandate the Petitioner to revoke the license of any insurance agent convicted of a crime. Indeed, such an interpretation would render Sections 626.611(14) and 626.621(8) superfluous. If the Petitioner intends to rely on Section 626.611(7), it must present some
evidence as to how the circumstances surrounding the underlying conviction demonstrate a "lack of fitness or trustworthiness." No such evidence was presented in this case.
The evidence did not establish that the charge of grand theft against Respondent was a crime which has affected or adversely impacted Respondent's fiduciary relationship to her clients or her employer insurance companies. Further, the evidence presented fails to demonstrate a potential for such a result. The evidence also fails to reflect any other objectionable incidents or blemishes on Respondent's licensure record. As a result, Petitioner's charge that Respondent's conduct violated the provisions of Section 626.611(7) has not been sustained because the Petitioner has not established a nexus between the conviction and a "demonstrated lack of fitness or trustworthiness to engage in the business of insurance." Petitioner has not carried its burden of proving Respondent is guilty of a violation of Section 626.611(7), Florida Statutes.
The next question at issue is whether the provisions of Section 626.611(14), Florida Statutes, require the Department of Insurance to suspend or revoke Respondent's license on the grounds that she pleaded guilty to a crime involving moral turpitude. The statute does not define a crime "which involves moral turpitude."
In The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978), the Respondent was charged, in a professional disciplinary proceeding, with illegal conduct involving moral turpitude. The Florida Supreme Court stated:
Moral turpitude is discussed in 9 Fla. Jur. Criminal Law Sec. 8 as follows:
"A crime involves moral turpitude if it is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general. Unless the offense is one which by its very commission implies a base and depraved nature, the question
of moral turpitude depends not only on the nature of the offense, but also the attendant circumstances..."
Specific crimes that have resulted in disciplinary proceedings include forgery, use of the mails to defraud, violation of a liquor law, larceny, petit larceny, and acceptance of stolen property.
In the instant case, Respondent entered a negotiated plea of guilty and, without a trial, was found guilty of grand theft, a felony. Grand theft is a crime involving moral turpitude. Soetarto v. Immigration and Naturalization Service, 516 F2d 778 (7th Cir. 1975). Therefore, Respondent is guilty of a violation of Section 626.611(14), and the Petitioner must take some disciplinary action. Because the proof is clear and convincing that Respondent pled guilty to a felony in this state, Petitioner has also sustained its burden of demonstrating that Respondent violated the provisions of Section 626.621 (8), Florida Statutes. However, the Petitioner presented no evidence as to how or why it should exercise its discretionary authority to permanently revoke Respondent's license based on a negotiated plea. Since there was only limited evidence presented regarding the circumstances of the crime and both Respondent and the sentencing judge assumed that Respondent could continue her business, permanent revocation of the Respondent's insurance license would be an
excessively harsh punishment given the circumstances of this case. See e.g. Davis, supra, (holding that permanent disbarment of an attorney is a harsh punishment reserved for egregious cases where rehabilitation is improbable.)
The circuit court judge clearly expressed his belief that by withholding adjudication, Respondent would be able to continue in business. While that belief is not binding on the Petitioner in this case, it is pertinent in considering how to apply discretionary disciplinary authority especially absent a factual showing of untrustworthiness or egregious conduct on behalf of Respondent. The only evidence presented regarding the facts surrounding the Respondent's conviction were the court records and Respondent's own testimony. While Respondent's explanation did not provide a complete background regarding the circumstances leading to the criminal charges, her testimony and the transcript of the sentencing hearing establish that she agreed to enter the plea because of her lack of ability to afford the expense of a trial and with a clear understanding that she could remain in business.
In considering an appropriate penalty in this case, I have considered, among other things, the nature of the crime with which Respondent was charged, the limited facts that were presented regarding the crime, the absence of any subsequent untoward conduct, and the length of time Respondent has been licensed as an insurance agent. While Respondent's plea of guilty to grand theft constitutes a violation of Section 626.611(14) and 626.621, Florida Statutes, such acts are not, under the circumstances, of a sufficiently current or severe nature as to mandate the revocation of her license. Rather, an appropriate penalty in this case is a six-month suspension retroactive to the date of filing the Administrative Complaint.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure
and eligibility for licensure for six months.
DONE and ORDERED this 27th day of March, 1990, in Tallahassee, Florida.
J. STEPHEN MENTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
APPENDIX Case Number 89-3940
The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of of Fact Number Fact in the Recommended Order were Accepted or Reason for Rejection.
1. Adopted in substance in Findings of | Fact | 1. | |
| Fact Fact | 1. 2 and | 4. |
4. Adopted in substance in Findings of | Fact | 3. | |
5. Adopted in substance in Findings of | Fact | 4. | |
6. Adopted in substance in Findings of | Fact | 6. | |
COPIES FURNISHED: | |||
Robert F. Langford, Jr., Esquire Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 | |||
Barbara Helen Askea 2315 Northeast 5th Avenue Pompano Beach, Florida 33064 | |||
Tom Gallagher Department of Insurance and |
Treasurer
State Treasurer and Insurance Commissioner
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Don Dowdell General Counsel
Department of Insurance and Treasurer
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
=================================================================
AGENCY FINAL ORDER
=================================================================
OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE
INSURANCE COMMISSIONER FIRE MARSHAL
IN THE MATTER OF:
CASE NO. 89-L-36
BARBARA HELEN ASKEA DOAH CASE NO. 89-3940
/
FINAL ORDER
THIS CAUSE came before the Treasurer and Insurance Commissioner of the State of Florida for consideration and final agency action. The case began on June 15, 1989, when the State of Florida, Department of Insurance (hereinafter referred to as "Respondent"), filed an Administrative Complaint seeking revocation of the licenses and eligibility for licensure of BARBARA HELEN ASKEA (hereinafter referred to as "Respondent"). On or about July 13, 1989, Respondent submitted her reguest for a formal hearing pursuant to Section 120.57(1), Florida Statutes, pursuant to notice, the matter was heard before Stephen Menton, Hearing Officer, Division of Administrative Hearings, in Ft. Lauderdale, Florida on September 22, 1989.
After considering the evidence and arguments presented at hearing, and upon reviewing the Proposed -Recommended Order submitted by the Petitioner (no Proposed Recommended Order was submitted by the Respondent), the Hearing Officer issued hisAmended Recommended Order (attached hereto as Exhibit "A") on March 27, 1990 to the Treasurer and Insurance Commissioner. Said Order included a recommendation that Respondent's licenses and eligibility for licensure be suspended for six (6) months, and appears to have suggested that the suspension be retroactive back to the date of filing the Administrative Complaint.
Neither party has filed exceptions to the Amended Recommended Order of the Hearing Officer. Upon careful consideration of the record, and being otherwise fully advised in the premises, it is ORDERED:
The Findings of Fact as determined herein by the Hearing Officer are adopted in full.
The Conclusions of Law as determined herein by the Hearing Officer are adopted in full with the exception of paragraphs eight (8) and nine (9) of the Amended Recommended Order, based on the following reasons:
The Hearing Officer, citing to Paisley v. Department of Insurance, 562 So.2d 167, (Fla. 1st DCA, 1988) and Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984), states "[i]f the Petitioner intends to rely on Section 626.611(7), [Florida Statutes], it must present some evidence as to how the circumstances surrounding the underlying conviction demonstrate a "lack of
fitness or trustworthiness"." Furthermore, that "the Petitioner has not established a nexus between the conviction and a "demonstrated lack of fitness or trustworthiness to engage in the business of insurance"."
The aforementioned comments would indicate the Respondent had been convicted. This is a misstatement. However, the Hearing Officer's Findings of Fact at paragraph four (4) correctly states that the Respondent entered a plea of guilty to the felony charge of grand theft, and that the Circuit Court for Broward County withheld adjudication and placed Respondent on probation for ten
(10) years with a requirement that she make restitution.
The Hearing Officer's aforementioned comments relating to Paislev, supra, Natelson, supra, and Section 626.611 (7), Florida Statutes, are an overly expansive reading of relevant law. Noting that Paisley, supra, involved a felony conviction, and Natelson, supra, involved a plea of guilty to felony charges, the case law and the Florida Statutes should not be read to require presentation of evidence as to how the circumstances surrounding an underlying conviction, or as in the present case a plea of guilty, demonstrate "lack of fitness or trustworthiness to engage in the business of insurance". Such a reading in essence would require the Petitioner to relitigate the Respondent's underlying plea of guilty.
The Respondent is entitled to present mitigating circumstances; however, she is not entitled to a trial de novo regarding her guilty plea. See McGraw v. Department of State Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986); The Florida Bar v. Vernell, 374 So.2d 473 (Fla. 1979). Under the present statutory scheme, it is enough that the Respondent pled guilty to a felony charge of grand theft. As such, the Petitioner's construction of the term "lack of fitness or trustworthiness to engage in the business of insurance" as including a plea of guilty to a felony charge of grand theft is well within the Petitioner's wide range of discretion in the interpretation of Section 626.611(7) , Florida Statutes. See Natelson, supra.
The Recommendation of the Hearing Officer is adopted as regards the suspension of the Respondent's licensure and eligibility for licensure as a Life and Health Insurance Agent for six (6) months. The Hearing Officer's suggestion that the suspension be retroactive to the date of filing the Administrative Complaint is rejected for the reason that implementation of the suggestion would in essence nullify the recommended six (6) month suspension. Rather, the suspension shall commence on the date of entry of this Final Order.
Any party adversely affected by these proceedings is entitled to seek judicial review of this Order pursuant to Section 120.68, Florida Statutes and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Petition or Notice of Appeal with the General Counsel, acting as the agency clerk, at 412 Larson Building, Tallahassee, Florida 32399- 0300, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of this Order.
DONE and ORDERED this 11th day of May, 1990.
Tom Gallagher Treasurer and Insurance Commissioner
Copies furnished:
Barbara Helen Askea
2315 Northeast 5th Avenue Pompano Beach, Florida 33064
Robert F. Langford, Jr., Esquire Department of Insurance and Treasurer Office of Legal Services
412 Larson Building
Tallahassee, Florida 32399-0300
J. Stephen Menton Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
| Issue Date | Proceedings |
|---|---|
| Mar. 19, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 11, 1990 | Agency Final Order | |
| Mar. 19, 1990 | Recommended Order | Respondent pled guilty to grand theft; adjudication withheld and court expressed belief that respondent could continue in business; suspension rather than revocation recommended. |
