STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 01-4240PL

)

BRIDGETTE A. LAPORTE, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 11, 2002, via video teleconference in Tampa and Tallahassee, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Matthew A. Nowels, Esquire

Anthony B. Miller, Esquire Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: No appearance.

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 626.611(1),

and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On September 12, 2001, the Petitioner, Department of Insurance (Department), filed a one-count Administrative Complaint against Respondent, Bridgette A. LaPorte (LaPorte), alleging that she violated Subsections 626.611(1), 626.611(2), 626.611(7), 626.611(13), 626.611(14), 626.621(1), 626.621(2),

and 626.621(8), Florida Statutes. LaPorte requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on October 29, 2001, for the assignment of an Administrative Law Judge.

On December 5, 2001, counsel for LaPorte filed a Motion to Withdraw as Counsel. The motion was granted by Order issued January 7, 2002.

On December 21, 2001, the Department filed a Motion for Leave to Amend Administrative Complaint. The motion was granted at the final hearing on January 11, 2002. The three- count Amended Administrative Complaint alleged that LaPorte violated Subsections 626.611(1), 626.611(2), 626.611(7),

626.611(13), 626.611(14), 626.621(1), 626.621(2), 626.621(8),

and 626.621(11), Florida Statutes.

On January 9, 2002, the Department filed a Motion for Leave to Amend Unilateral Pre-Trial Stipulation. The motion was granted at the final hearing.

Notice of the final hearing was provided to LaPorte, but she failed to appear at the final hearing. The Department called Donald Powers as its witness. Petitioner's Composite Exhibit consisting of A1, A2, and A3 was admitted. No witnesses testified on behalf of Respondent, and no exhibits were admitted on behalf of Respondent.

The one-volume Transcript was filed on January 22, 2002. Petitioner filed its Proposed Recommended Order on January 24, 2002. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. LaPorte is currently licensed by the Department as a Customer Representative.

2. On November 18, 1996, LaPorte pled nolo contendere to the sale of marijuana and the possession of marijuana in the Circuit Court of the Sixth Judicial Circuit of Florida in and for Pinellas County, Case Number CRC96-13980CFANO-A. LaPorte was sentenced to two years' probation for these felonies.

3. On September 14, 2000, an information was filed against LaPorte, charging her with possession of a controlled substance, possession of cocaine, and possession of marijuana.

4. On October 4, 2000, LaPorte submitted an application to the Department for licensure as a Customer Representative. The application asked the following questions:

   1. Are there currently pending against you or any entity you control, any criminal,

      administrative, or civil charges in any state or federal court anywhere in the United States or its possessions or any other country?

   2. In the past 12 months, have you been arrested, indicted, or had an Information filed against you by any law enforcement authorities anywhere in the United States or its possessions or any other country?

   3. Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered?

   4. Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment or conviction was entered?

      
      

   5. La Porte answered "no" to all four questions.

      
      

   6. On the application dated October 4, 2000, LaPorte signed and swore to the following statement:

      Under penalty of perjury, I declare that I have read the foregoing application for license, related information and related attachments, and that the facts as stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s).

      
      

   7. LaPorte was licensed by the Department as a Customer Representative on October 31, 2000.

   8. On December 15, 2000, LaPorte pled guilty to felonies of possession of a controlled substance, possession of cocaine, and possession of marijuana in the Circuit Court for the Sixth Judicial Circuit in and for Pinellas County, Florida, Case Number CRC00-14856CFABO-A. She was sentenced to four years' probation.

   9. LaPorte failed to notify the Department in writing within 30 days of her guilty plea that she had pled guilty to the felonies.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

   11. The Department alleged that LaPorte violated Subsections 626.611(1), 626.611(2), 626.611(7), 626.611(13), 626.111(14), 626.621(1), 626.621(2), 626.621(8), and 626.621(11), Florida Statutes. The Department has the burden to establish by clear and convincing evidence that LaPorte is guilty of the violations. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996).

   12. Section 626.611, Florida Statutes, provides that the Department shall discipline the license of an agent if one or more of the following grounds exist:

       1. Lack of one or more of the qualifications for the 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 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.

          
          

   13. Section 626.621, Florida Statutes, provides that the Department may, in its discretion, discipline the license of an agent for the following grounds under circumstances for which such discipline is not mandatory under Section 626.611, Florida Statutes:

       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 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 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.

          
          

   14. The Department has established by clear and convincing evidence that La Porte violated Subsection 626.621(8), Florida Statutes. She pled nolo contendere to the felony charges of sale of marijuana and possession of marijuana on November 18, 1996, and she pled guilty to the felony charges of possession of a controlled substance, possession of cocaine, and possession of marijuana on

       December 15, 2000.

       
       

   15. The Department has established by clear and convincing evidence that LaPorte violated Subsections 626.611(1) and 626.611(7), Florida Statutes. Section 626.7351, Florida Statutes, provides in order for a person to be licensed as a Customer Representative, the person must be

       trustworthy. LaPorte's misrepresentation on her application demonstrates that she is not trustworthy.

   16. The Department has established by clear and convincing evidence that LaPorte violated Subsection 626.611(2), Florida Statutes, when she answered negatively to the questions on the application dealing with whether she had pending criminal charges against her; whether an information had been filed against her in the last 12 months; and whether she had pled nolo contendere to a felony or a crime punishable by imprisonment of one year or more.

   17. The Department has established by clear and convincing evidence that LaPorte violated Subsection 626.611(13), Florida Statutes. The questions in the application were clear. The length of time elapsing between the 1996 nolo contendere plea and the date of the application was short enough that LaPorte should not have forgotten about the plea when she completed the application. LaPorte had been charged by information with felonies less than a month before she submitted her application; thus, she certainly was aware that negatively answering the question concerning being charged for a felony within the last 12 months was a misrepresentation.

   18. The Department concedes in its Proposed Recommended Order that it has failed to establish by clear and convincing

       evidence that LaPorte violated Subsection 626.611(14), Florida Statutes.

   19. The Department would have had grounds to deny LaPorte's application had the Department been made aware that she had pled nolo contendere to three felony charges in 1996; thus, the Department has established by clear and convincing evidence that LaPorte violated Subsection 626.621(1), Florida Statutes.

   20. The Department has established by clear and convincing evidence that LaPorte violated Subsections 626.621(2) and (11), Florida Statutes, by failing to inform the Department within 30 days of her plea of guilty to three felonies on December 15, 2000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Bridgette A. LaPorte violated Subsections 626.611(1), (2), (7), and (13), Florida Statutes; finding that

she violated Subsections 626.621(1), (2), (8), and (11), Florida Statutes; dismissing the allegation she had violated Subsection 626.611(14), Florida Statutes; and revoking her license as a Customer Representative.

DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida.

___________________________________ SUSAN B. KIRKLAND

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 7th day of February, 2002.

COPIES FURNISHED:

Matthew A. Nowels, Esquire Anthony B. Miller, Esquire Division of Legal Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399-0333

Bridgette A. LaPorte

5150 4th Street, North, Lot 452 St. Petersburg, Florida 33703

Honorable Tom Gallagher

State Treasurer/Insurance Commissioner Department of Insurance

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Insurance

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: 01-004240PL

Orders for Case No: 01-004240PL