STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Petitioner, )

)

vs. ) Case No. 98-1285

)

AMELIA KAY JACOBS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on June 4, 1998. The hearing was conducted by telephone.

APPEARANCES

For Petitioner: Robert F. Langford, Jr., Esquire

Department of Insurance 645A Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Amelia Kay Jacobs, committed the offenses alleged in an Administrative Complaint entered by the Insurance Commissioner of the State of Florida on February 20, 1998.

PRELIMINARY STATEMENT

The Insurance Commissioner issued an Administrative Complaint against Respondent, Amelia Kay Jacobs on February 20, 1998. On or about February 28, 1998, Ms. Jacobs executed an Election of Rights disputing the factual allegations of the Administrative Complaint and requested a formal administrative hearing.

On March 16, 1998, Petitioner filed a copy of the Administrative Complaint and Ms. Jacobs' request for hearing with the Division of Administrative Hearings. The matter was designated Case No. 98-1285 and was assigned to the undersigned.

The formal hearing of this case was scheduled for June 4, 1998, by Notice of Telephone Hearing and Order of Instructions entered April 17, 1998. The hearing was to be conducted by telephone to eliminate the need for Ms. Jacobs to travel from her residence in Wichita, Kansas, to Florida to attend the hearing.

Ms. Jacobs did not appear at the time designated for the hearing to commence. After waiting a reasonable period of time for Ms. Jacobs to appear and after efforts to telephone

Ms. Jacobs failed, the hearing proceeded without Ms. Jacobs.

Petitioner did not call any witnesses. Petitioner offered into evidence Exhibits A through D and F through H. The exhibits were accepted into evidence. Petitioners subsequently requested that Exhibit H be withdrawn from consideration. That request is hereby granted.

After the close of the formal hearing, Ms. Jacobs telephoned the Division of Administrative Hearings. Ms. Jacobs was instructed to file a pleading in writing explaining why she failed to appear at the time scheduled for the formal hearing.

Ms. Jacobs was also instructed to request whatever action she desired in this matter in her pleading. Ms. Jacobs was instructed that the pleading must be filed within ten days. No explanation of Ms. Jacobs' failure to appear has been filed. Nor has Ms. Jacobs requested any relief for her failure to appear.

No transcript of the hearing was filed. Petitioner waived its right to file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, the Department of Insurance (hereinafter referred to as the "Department"), is an agency of the State of Florida charged with the responsibility for, among other things, the licensing and discipline of insurance representatives in Florida. Chapter 626, Florida Statutes (1997).

2. Respondent, Amelia Kay Jacobs, is currently licensed by the State of Florida as a nonresident life and health agent. Ms. Jacobs agent number is 510427789.

3. On or about July 24, 1980, a Complaint/Information was filed in the District Court of the Eighteenth Judicial District in and for Sedgwich County, Kansas, charging Ms. Jacobs with one count of Giving a Worthless Check in violation of Section 21- 3707, Kansas Statutes, a Class E Felony.

4. On or about April 28, 1981, Ms. Jacobs entered a plea of guilty to the charge of Giving a Worthless Check before the Kansas District Court. The Court adjudicated Ms. Jacobs guilty as charged, but withheld sentencing for a period of one year from June 26, 1981. Ms. Jacobs was subsequently released early from probation.

5. On or about May 20, 1996, Ms. Jacobs swore to and signed an Insurance License Application (hereinafter referred to as the "Application") with the Department. Ms. Jacobs filed the Application seeking licensure as a nonresident life and health agent.

6. On the Application Ms. Jacobs, while under oath, responded "NO" to the following questions:

   13. Have you ever been convicted of, found guilty of, or pleaded no contest to a crime involving moral turpitude No (yes or no), or a felony No (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or country, whether or not a judgment of conviction has been entered? No (yes or no) If yes, give date(s): N/A

7. Ms. Jacobs knew or should have known that her answers to question 13 were false and a material misrepresentation of fact.

8. The Department relied upon the incorrect misrepresentation of Ms. Jacobs to question 13 on the Application in approving the Application.

9. Ms. Jacobs was informed by the Department by letter dated August 14, 1996, that the Department had received information concerning the foregoing. The Department gave Ms.

   Jacobs an opportunity to explain the incident or to withdraw her Application because she was a first-time applicant still on probation.

10. On or about February 20, 1998, the Insurance Commissioner entered an Administrative Complaint against Ms. Jacobs. The complaint was based, in part, on the incident described, supra.

11. On or about February 28, 1998, Ms. Jacobs executed an Election of Rights form denying the factual allegations of the Administrative Complaint and requesting a formal administrative hearing.

12. Rule 4-231.160(2), Florida Administrative Code, lists certain aggravating and mitigating circumstances which should be considered in determining the appropriate penalty for a violation of Sections 626.611(14) or 626.621(8), Florida Statutes (1997):

    1. The number of years since the criminal proceeding: It has been 18 years since Ms. Jacobs was charged with Giving a Worthless Check in violation of Section 21-3707, Kansas Statutes.

    2. Age of licensee at the time the crime was committed: Ms. Jacobs was 36 when the offense was committed.

    3. Whether licensee served time in jail: The evidence failed to prove that Ms. Jacobs served time in jail.

    4. Whether or not licensee violated criminal probation: Ms. Jacobs did not violate probation. She was released from probation early.

    5. Whether or not licensee is still on criminal probation: The evidence failed to prove that Ms. Jacobs is still on probation.

    6. Whether or not licensee's actions or behavior resulted in substantial injury to the victim: Ms. Jacobs made restitution of the amount of the worthless check. The victim, therefore, did not suffer substantial injury.

    7. Whether or not restitution was, or is being timely, paid: Ms. Jacobs made restitution.

    8. Whether or not licensee's civil rights have been restored: Ms. Jacobs' civil rights were not impacted.

    9. Other related factors: The evidence failed to prove that any other factors apply in this case.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120,57, Florida Statutes (1997).

14. Section 626.611, Florida Statutes (1997), requires that the Department "suspend, revoke, or refuse to renew or continue the license of any . . . agent . . ." if any of fifteen specified grounds are found to exist. Section 626.611, Florida Statutes (1997), specifies grounds for which discipline is "compulsory."

15. The Department alleged in the Administrative Complaint that five of the "compulsory" grounds for discipline of an agent

    apply to Ms. Jacobs: Sections 626.611(1), (2), (7), (13), and (14), Florida Statutes (1997), which provide the following:

    1. Lack of one or more of the qualifications for license or appointment as specified in this code.

       
       

    2. Material misstatement, misrepresentation, or fraud in obtaining the license or appointment or in attempting to obtain the license or appointment.

       
       

       . . . .

       
       

       (7) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance.

       
       

       . . . .

       
       

       1. Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code.

          
          

       2. Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any sate thereof or under the law of any other country which involves moral turpitude, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

16. In addition to the "compulsory" grounds for discipline of Section 626.611, Florida Statutes (1997), Section 626.621, Florida Statutes (1997), provides "discretionary" grounds for discipline of an agent's license.

17. The Department alleged in the Administrative Complaint that three of the "discretionary" grounds for discipline of an

    agent apply to Ms. Jacobs: Sections 626.621(1), (2), and (8), Florida Statutes (1997), which provide the following:

    1. Any cause for which issuance of the license or appointment could have been refused had it then existed and been known to the department.

       
       

    2. Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment.

       
       

       . . . .

       
       

       (8) Having been found guilty of or having pleaded guilty or nolo contendere to a felony of a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

18. The evidence in this case supports a conclusion that Ms. Jacobs is guilty of the following grounds for compulsory and discretionary discipline alleged in the Administrative Complaint:

    1. Section 626.611(2), Florida Statutes (1997). Ms. Jacobs' failure to correctly answer question 13 on the Application constitutes a material misstatement or misrepresentation in obtaining her license;

    2. Section 626.611(7), Florida Statutes (1997). Ms. Jacobs' lack of candor in completing the Application constitutes a demonstrated lack of trustworthiness to engage in the business of insurance;

    3. Sections 626.611(14) and 626.621(8), Florida Statutes (1997). Ms. Jacobs was found guilty of or plead guilty to a felony under the laws of a state of the United States; and

    4. Section 626.621(1), Florida Statutes (1997). Ms. Jacobs could have been denied a license pursuant Sections 626.611(14) and 626.621(8), Florida Statutes (1997), had she accurately answered question 13 of the Application.

19. The evidence failed prove that Ms. Jacobs is guilty of the following grounds for compulsory and discretionary discipline alleged in the Administrative Complaint:

    1. Section 626.611(1), Florida Statutes (1997). The evidence failed to prove that Ms. Jacobs lacks any qualification for licensure;

    2. Section 626.611(13), Florida Statutes (1997). The evidence failed to prove that Ms. Jacobs willfully failed to comply with, or willfully violated, any proper order or rule of the Department; and

    3. Section 626.621(2), Florida Statutes (1997). The evidence failed to prove that Mr. Jacobs' violation was committed during the course of dealing under her license.

20. The rules of the Department, Chapter 4-231, Florida Administrative Code, provide guidelines for determining what punishment should be imposed for violations of Section 626.611 and 626.621, Florida Statutes.

21. Rule 4-231.040, Florida Administrative Code, authorizes the Department to find multiple grounds under Sections 626.611 and 626.621, Florida Statutes, for taking disciplinary action against an agent's license. The rule goes on to provide the following:

    However, for the purpose of this rule chapter, only the violation specifying the highest stated penalty will be considered for that count. The highest stated penalty thus established for each count is referred to as the "penalty per count".

    
    

    (b) The requirement for a single highest stated penalty for each count in an administrative complaint shall be applicable regardless of the number or nature of violations established in a single count of an administrative complaint.

    
    

    1. Total Penalty. Each penalty per count shall be added together and the sum shall be referred to as the "total penalty".

       
       

    2. Final Penalty. The final penalty which will be imposed against a licensee under these rules shall be the total penalty, as adjusted to take into consideration any aggravating or mitigating factors . . . .

    
    

22. The grounds for which discipline may be imposed on Ms. Jacobs are punishable pursuant to Rules 4-231.080 and 4-231.090, Florida Administrative Code. The highest penalty for the grounds which were established in this matter is a suspension of Ms. Jacobs' license for a period of six months. See Rules 4- 231.080(7) and (14), and 4-231.090(8), Florida Administrative Code. The "penalty per count" therefore is six months.

23. There being only one count in the Administrative Complaint, the "penalty per count" is also the "total penalty."

Based upon a consideration of mitigating and aggravating factors, it is concluded that the "total penalty" should also be the "final penalty." While the factors to be considered pursuant to Rule 4-231.160(2), Florida Administrative Code, are favorable to Ms. Jacobs, this conclusion only supports the conclusion that a

6-month suspension is sufficient. The suspension should not be reduced, however, due to the nature of the criminal offense and the fact that Ms. Jacobs was not truthful in completing the Application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered by the Department of Insurance finding that Amelia Kay Jacobs has violated the provisions of Sections 626.611(2), (7), and (14), and 626.621(1) and (8), Florida Statutes (1997), as alleged in the Administrative Complaint. It is further

RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Jacobs violated Sections 626.611(1) and (13), and 626.621(2), Florida Statutes (1997), be dismissed. It is further

RECOMMENDED that the nonresident life and health agent license issued to Ms. Jacobs be suspended for a period of six months from the date of the Final Order.

DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998.

COPIES FURNISHED:

Robert F. Langford, Jr., Esquire Department of Insurance

645A Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Amelia Kay Jacobs Post Office Box 8073

Wichita, Kansas 67268-8073

Bill Nelson

State Treasurer and Insurance Commission

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Daniel Y. Sumner, Esquire Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have 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.

Docket for Case No: 98-001285

Orders for Case No: 98-001285