STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NAOMI A. VISSER,

Petitioner,

vs.

DEPARTMENT OF INSURANCE,

Respondent.

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) Case No. 02-3764

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RECOMMENDED ORDER

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

APPEARANCES

For Petitioner: No appearance.

For Respondent: Ladasiah Jackson, Esquire

Department of Insurance

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a health insurance agent should be granted.

PRELIMINARY STATEMENT

By letter dated May 17, 2002, Petitioner, Naomi A. Visser (Visser) was notified by Respondent, Department of Insurance and

Treasurer (Department), that her application for licensure as a health insurance agent was denied. Visser requested an administrative hearing, and on September 25, 2002, the case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal hearing. The case was originally assigned to Administrative Law Judge William Cave, but was reassigned to Administrative Law Judge Susan B. Kirkland to conduct the final hearing.

Visser was to participate in the final hearing by telephone. The final hearing was scheduled to commence at 9:00 a.m. on December 11, 2002. Visser failed to call at the appointed time. In the course of an hour, three attempts were made by the undersigned to call Visser. Each time the undersigned was connected to Visser's voicemail. The undersigned left three messages for Visser to call and participate in the final hearing. Visser failed to call, and the final hearing was held without her appearance.

At the final hearing, the Department presented the testimony of Hazel Mohammed and submitted six exhibits which were admitted in evidence as Respondent's Exhibits One through Six.

The Department agreed to file its proposed recommended order within ten days of the date the transcript was filed. On January 6, 2003, the one-volume Transcript was filed. On

January 16, 2003, Respondent filed its Proposed Recommended Order, which has been considered in rendering this Recommended

Order.

FINDINGS OF FACT

1. By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser answered affirmatively to the following question:

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

   
   

2. In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service.

3. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002.

4. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(1), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

5. 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.

6. Subsections 626.611(1), (7), and (14), Florida Statutes, provide:

   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.

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

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      (14) 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.

7. Subsection 626.621(8), Florida Statutes, provides: 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:

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   (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.

   
   

8. In State ex rel. Tullidge v. Hollingsworth, 146 So.

   
   

   660, 661 (Fla. 1933), the Florida Supreme Court found that the term "moral turpitude" includes any act that is "contrary to justice, honesty, principle, and good morals." Visser pled nolo

   contendere to two felonies which involve moral turpitude, burglary, and theft. The Department had grounds to deny her

   application based on Subsections 626.611(14) and 626.621(8), Florida Statutes.

9. Subsection 626.831(1), Florida Statutes, sets forth the qualifications for licensure as a health insurance agent and provides that the Department "shall not grant or issue a license as health agent as to any individual found by it to be untrustworthy or incompetent "

10. Visser pled nolo contendere to charges of burglary and grand theft; she did not plead guilty to those charges. There was no evidence presented that Visser actually committed the felonies. Thus, no evidence was presented to demonstrate that Visser was not qualified pursuant to Subsection 626.831(1), Florida Statutes, or that the application should be denied on the basis of Subsections 626.611(1) or (7), Florida Statutes. See Department of Insurance v. Christine Lee Springer, DOAH Case No. 98-3321, Recommended Order Issued April 20, 2000, adopted in toto by Department of Insurance Final Order July 18, 2000.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered denying the application of Naomi A. Visser for licensure as a health insurance agent.

DONE AND ENTERED this 21st day of January, 2003, 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 21st day of January, 2003.

COPIES FURNISHED:

Ladasiah Jackson, Esquire Department of Insurance

200 East Gaines Street Tallahassee, Florida 32399-0333

Naomi A. Visser

1617 London Grove Port Road Grove City, Ohio 43123

Honorable Tom Gallagher Chief Financial Officer

Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300

Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 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: 02-003764

Orders for Case No: 02-003764