STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 98-3321

)

CHRISTINE LEE SPRINGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case by videoconference on February 8, 1999, and January 24, 2000. The parties, their counsel and the court reporter participated from Orlando, Florida; the Administrative Law Judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: Patrick F. Creehan, Esquire

Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Jed Berman, Esquire

Infantino & Berman Post Office Drawer 30

Winter Park, Florida 32790-0030

STATEMENT OF THE ISSUES

The Department of Insurance (Agency) has charged Respondent with various violations of Chapter 626, Florida Statutes, related to her fitness for continued licensure as an insurance agent.

Specifically, the Administrative Complaint dated May 22, 1998, alleges that on July 31, 1997, Respondent pled nolo contendere to presenting a false statement of insurance coverage and grand theft, had adjudication withheld, and was sentenced to probation, restitution, and community service. The Administrative Complaint also alleges that on September 12, 1997, Respondent pled guilty to presenting a false statement of insurance coverage and grand theft and failed to notify the Department of Insurance of her plea. The Administrative Complaint alleges that Respondent thereby lacks qualifications for licensure, has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance and has violated other laws and rules regarding adjudication of guilt or pleas of guilt or nolo contendere. The issues in this proceeding are whether those violations occurred and if so, what discipline is appropriate.

PROCEDURAL MATTERS

Respondent, through counsel, responded to the Administrative Complaint with an answer and request for formal hearing. The case was then referred to the Division of Administrative Hearings, where it was assigned and set for hearing. After

several continuances, the hearing commenced on February 8, 1999, as described above.

Petitioner's entire case was a series of documents offered into evidence. No witnesses testified for Petitioner. At the close of the Petitioner's case, Respondent requested leave to brief the admissibility of the documents. Without objection the hearing was recessed.

After the parties submitted written memoranda, the administrative law judge issued her Order dated February 22, 1999, receiving in evidence the document styled "Court Status" (Petitioner's Exhibit no. 1), noting that Petitioner had withdrawn the other documents; and she reserved ruling on Petitioner's Motion to Reopen the Record. The Order also stated the hearing would reconvene after the parties were able to consult on their availability.

The hearing was reset in October 1999, and was continued again for good cause until it finally concluded on January 24, 2000.

At that proceeding the administrative law judge denied Petitioner's Motion to Reopen the Record. The documents Petitioner sought to introduce are additional court records related to the same case described in the "Court Status" already received in evidence. Respondent declined to testify or put on any evidence, and the hearing was adjourned.

A Transcript of the February 8, 1999, proceeding was filed on March 2, 2000. (No transcript for the January 2000 proceeding was filed.) As agreed, the parties filed their proposed recommended orders within 30 days of the filing of the Transcript.

FINDINGS OF FACT

1. As stipulated, Christine Lee Springer is currently licensed in Florida as a life and health agent, a general lines agent, and a health agent. The Department of Insurance has jurisdiction over her insurance license and appointments.

2. On July 31, 1997, Christine Lee Springer pled nolo contendere to two felonies: presenting a false statement of insurance coverage and grand theft in the third degree. She was sentenced to three years' probation, restitution, and community service. Adjudication was withheld.

3. Petitioner presented no evidence regarding Ms. Springer's failure to notify the agency of her plea and no evidence of any plea on September 12, 1997, as alleged in Count II, paragraph 7, of the Administrative Complaint. Nor did the agency present any evidence regarding the underlying offenses.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

5. In license discipline cases such as this, the agency must prove the allegations of its complaint with evidence that is clear and convincing. See Department of Banking and Finance v. Osborne, Stern and Co., 670 So. 2d 932 (Fla. 1996).

6. The Agency has alleged that Ms. Springer violated these provisions of Chapter 626, Florida Statutes, related to the discipline of an insurance agent's license:

   626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, title agency's, solicitor's, adjuster's, customer representative's, service representative's, or managing general agent's license or appointment.

   
   

   The department shall deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, title agency, solicitor, adjuster, customer representative, service representative, or managing general agent, and it shall suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist:

   
   

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

   
   

   * * *

   
   

   (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 state 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.

   
   

   626.621 Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, adjuster's, customer representative's, service representative's, or managing general agent's license or appointment.

   
   

   The department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, solicitor, adjuster, customer representative, service representative, or managing general agent, and it may suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee 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:

   
   

   * * *

   
   

   (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 or 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.

   
   

   * * *

   
   

   (11) Failure to inform the department in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States 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 the case.

7. The agency failed to prove any violation of Chapter 626, Florida Statutes, other than Ms. Springer's plea of nolo contendere. The certified court document introduced as Petitioner's Exhibit no. 1 is subject to official recognition pursuant to Section 90.202(6), Florida Statutes, and is a public record exception to the hearsay rule pursuant to Section 90- 803(8), Florida Statutes.

8. The mere fact of Ms. Springer's plea, commonly considered a "plea of convenience," does not establish her culpability for the underlying offense or her unfitness for continued licensure. It establishes only that she violated Sections 626.611(14) and 626.621(8), Florida Statutes. See Ayala v. Department of Professional Regulation, 478 So. 2d. 1116 (Fla. 1st DCA 1985); McNair v. Criminal Justice Standards and Training Commission, 518 So. 2d 390 (Fla. 1st DCA 1987).

9. Rule 4-231.150, Florida Administrative Code, describes penalty guidelines for insurance licensees who have violated

Sections 626.611(14) or 626.621(8), Florida Statutes. In Ms. Springer's circumstances, a 24-month suspension is appropriate. See Rule 4-231.150(2)(a), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Insurance enter its final order finding that Christine Lee Springer violated Sections 626.611

(14) and 626.621(8), Florida Statutes, and suspending her license for two years.

DONE AND ENTERED this 20th day of April, 2000, in Tallahassee, Leon County, Florida.

MARY CLARK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 2000.

COPIES FURNISHED:

Patrick F. Creehan, Esquire Department of Insurance Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Jed Berman, Esquire Infantino & Berman Post Office Drawer 30

Winter Park, Florida 32790-0030

Honorable Bill Nelson

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel State Treasurer and Insurance

Commissioner

The Capitol, Plaza 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: 98-003321

Orders for Case No: 98-003321