STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL SERVICES, OFFICE OF INSURANCE REGULATION,

Petitioner,

vs.

EDWARD MARTIN WERTEPNY,

Respondent.

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) Case No. 03-3649PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on March 23, 2004, in Tampa, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dana M. Wiehle, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

For Respondent: Edward Martin Wertepny, pro se

5102 Belmere Parkway, Apartment 2405

Tampa, Florida 33624 STATEMENT OF THE ISSUES

Whether Respondent, a licensed all lines adjuster, committed the offenses alleged in the Amended Administrative Complaint; and, if so, what penalties should be imposed.

PRELIMINARY STATEMENT

On March 12, 2003, Petitioner, the Department of Financial Services (the "Department"), filed an Administrative Complaint against Respondent, Edward Martin Wertepney, alleging that Respondent had violated Subsections 626.611(7), (13), and (14);

Subsections 626.621(1) and (8); and Section 626.551, Florida Statutes (2002). Respondent timely challenged the allegations of the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings and scheduled for hearing on December 1, 2003.

On November 23, 2003, the Department filed a motion for continuance requesting that the scheduled hearing be cancelled due to lack of notice to Respondent. As exhibits to the motion, the Department attached copies of two envelopes sent by the Department to Respondent, both of which had been returned as undeliverable to the address provided by Respondent in his request for hearing. By Order dated December 2, 2003, the motion was granted, and the hearing was rescheduled for

March 23, 2004.

On March 12, 2004, the Department filed its motion to amend the Administrative Complaint, to which Respondent did not file an objection. The proposed amendment corrected the Administrative Complaint to reflect that Respondent had pled nolo contendere to the charge in question. The motion was

granted at the outset of the final hearing without objection from the Respondent.

Count I of the Amended Administrative Complaint alleged certain facts pertaining to a plea of nolo contendere entered by Respondent in 2002 to a charge of possession of cannabis, which is a third-degree felony pursuant to Subsection 893.13(6)(a), Florida Statutes (1998). Count I charged Respondent with the following violations of the Florida Insurance Code: "demonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of Subsection 626.611(7), Florida Statutes (2002); "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," in violation of Subsection 626.611(13), Florida Statutes (2002); "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," in violation of Subsection 626.611(14), Florida Statutes (2002); "any cause for which issuance of the license or permit could have been refused had it then existed and been known to the Department," in violation of

Subsection 626.621(1), Florida Statutes (2002); and "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," in violation of Subsection 626.621(8), Florida Statutes (2002).

Count II of the Amended Administrative Complaint alleged that Respondent failed to notify the Department within 30 days of doing so that he had entered a plea of nolo contendere in the criminal proceeding as required by Subsection 626.621(11), Florida Statutes (2002).

Count III of the Amended Administrative Complaint alleged that Respondent failed to notify the Department of a change of address that occurred on or before November 26, 2002. Count III charged Respondent with the following violations of the Florida Insurance Code: "failure to notify the Department in writing of a change of name, residence address, principal business street address, or mailing address within 30 days,"1 in violation of Section 626.551, Florida Statutes (2002); "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," in violation of Subsection 626.611(13), Florida Statutes

(2002); and "violation of any provision of this code or any other law applicable to the business of insurance in the course of dealing under the license or appointment," in violation of Subsection 626.621(2), Florida Statutes (2002).

At the final hearing, the Department presented the testimony of Department employees, Aaron Wilds and Laurel Raulerson, and the rebuttal testimony of Ms. Raulerson, Hillsborough County Sheriff's Deputy Randy White, and Reserve Deputy Donald McLaughlin. The Department's Exhibits

numbered 1 through 11 were accepted into evidence.

Respondent testified on his own behalf. Respondent's Exhibits numbered 1 through 3 were accepted into evidence.

A Transcript of the proceedings was filed on April 7, 2004.

The Department timely filed its Proposed Recommended Order on April 19, 2004. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. The Department is a licensing and regulatory agency of the State of Florida charged with, among other duties, the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes (2002). See

   § 624.307(1), Fla. Stat. (2002).

2. Respondent has been continuously licensed in the State of Florida as an independent all lines adjuster authorized to transact insurance adjusting business since August 1986.

3. On January 1, 1999, at approximately 11:55 p.m., Respondent was driving his Ford Bronco in Tampa, Florida. Hillsborough County Sheriff's Deputy White noticed that Respondent's license tag appeared to be expired. He followed Respondent for about a quarter of a mile, while he ran Respondent's tag number through the computer to determine whether it was, in fact, expired. Upon receiving an affirmative response, Deputy White pulled over Respondent's vehicle.

4. Reserve Deputy McLaughlin was riding with Deputy White.

   
   

   Deputy McLaughlin approached Respondent's car and immediately detected a strong odor of burning marijuana. Deputy White then approached the car and confirmed the smell of marijuana smoke. The deputies asked Respondent for permission to search his vehicle.

5. According to both deputies, Respondent not only gave them permission to search his car, but told them where they could find the marijuana, which was inside a black travel bag on the back seat of the car. Both deputies testified that Respondent told them he had received the marijuana as a Christmas gift. Respondent was arrested for possession of more

   than 20 grams of cannabis, a third-degree felony pursuant to Subsection 893.13(6)(a), Florida Statutes (1998).

6. At the hearing, Respondent testified that the black travel bag containing the marijuana belonged to an acquaintance to whom he had earlier given a ride. Respondent testified that he did not know the marijuana was in the car until the deputies found it and denied having told the deputies where to find it or that it was a Christmas gift. Respondent's testimony on these points was not credible.

7. On or about February 12, 1999, a one-count information was filed in the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, charging Respondent with possession of cannabis in violation of Subsection 893.13(6)(a), Florida Statutes (1998), a third-degree felony. On

   September 30, 2002, Respondent entered a plea of nolo contendere to the charge, which was accepted. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of six months and ordered to perform 50 hours of community service.

8. Respondent successfully completed his probation, and an order terminating probation was entered on February 5, 2003.

9. After Respondent's arrest, but before the disposition of his case, the Department received an unrelated complaint concerning the manner in which Respondent was handling claims. Ms. Raulerson, a Department investigator, performed an

   investigation. She discovered that the Department did not have a current resident address for Respondent and obtained the correct address through Respondent's father. On January 3, 2002, Ms. Raulerson issued a letter of guidance to Respondent regarding the subject matter of the investigation.

   Ms. Raulerson's letter also reminded Respondent of his obligation to notify the Department of changes in his principal business, residence, and mailing addresses. She enclosed a copy of the appropriate form on which to notify the Department of address changes.

10. During her investigation of Respondent's claims handling, Ms. Raulerson had a telephone conversation with Respondent. Ms. Raulerson mentioned that, unrelated to her investigation, the Department had received information indicating that Respondent had been charged with a felony. Respondent told Ms. Raulerson that the charge had been dismissed. Ms. Raulerson responded that if the charges had been dismissed, Respondent would be prudent to forward the paperwork to the Department so that its records could be corrected.

11. In October 2002, Mr. Wilds, a Department investigator, was assigned to investigate whether Respondent had been convicted of, or pled guilty or nolo contendere to a felony, and had failed to notify the Department of his conviction or plea. Mr. Wilds was unable to contact Respondent at the addresses in

    the Department's files, which indicated that Respondent did not take the advice in Ms. Raulerson's letter of guidance.

    Mr. Wilds added the failure to notify the Department of his address change to his investigator.

12. Mr. Wilds contacted the Hillsborough County Circuit Court to request documentation regarding the outcome of Respondent's criminal case. In response, the Hillsborough County clerk's office provided Mr. Wilds with certified documents indicating that Respondent had pled nolo contendere and been placed on probation.

13. Mr. Wilds next contacted the Department of Corrections to obtain information on Respondent's probationary status. By letter dated December 6, 2002, Respondent's probation officer, Robert Hughey, confirmed that Respondent was serving a probationary period of six months, commencing September 30, 2002, and scheduled to terminate on March 29, 2003.

14. Subsection 626.621(11), Florida Statutes (2002), provides that the following constitutes grounds for the discretionary discipline of an agent's licensure:

    (11) Failure to inform the department or office 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.

    
    

15. Respondent failed to report to the Department, within

    
    

    30 days of doing so, that he entered a plea of nolo contendere to a third-degree felony charge of possession of cannabis on September 30, 2002.

16. Respondent testified that he did not inform the Department of his plea of nolo contendere to a felony because Mr. Hughey assured him that he had already notified the Department. The evidence establishes that Mr. Hughey contacted the Department only after Mr. Wilds requested information as to Respondent's probationary status and that this occurred more than 30 days after Respondent entered his plea. However, Respondent's reliance on Mr. Hughey militates against a finding that Respondent's failure to notify the Department was willful.

17. As to the failure to notify the Department of his address changes, Respondent testified that he has always relied on his employers to notify the Department of his address when appointment papers are filed on his behalf and that there was never a problem until these investigations commenced. While Respondent's reliance on his employers does not absolve him of the personal responsibility envisioned by Section 626.551, Florida Statutes (2002), it does militate against a finding that

    Respondent's failure to notify the Department of his address changes was willful.

18. Respondent's insurance license has not been previously disciplined in the State of Florida.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. § 120.57(1), Fla. Stat. (2003).

20. License revocation and discipline proceedings are penal in nature. The burden of proof on the Department in this proceeding was to demonstrate the truthfulness of the allegations in the Amended Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v.

    Turlington, 510 So. 2d 292 (Fla. 1987).

21. The "clear and convincing" standard requires: [T]hat the evidence must be found to be

    credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). The findings in this case were made based on the standard set forth in Osborne Stern and Ferris.

22. Section 626.611, Florida Statutes (2002), provides for compulsory discipline of a license as follows, in relevant part:

    The department or office 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:

    
    

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

    
    

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    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.

23. Section 626.621, Florida Statutes (2002), provides for the discretionary discipline of a license as follows, in relevant part:

    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, 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:

    
    

    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.

       
       

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       (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.

       
       

24. Section 626.551, Florida Statutes (2002), provides:

    
    

    Every licensee shall notify the department or office in writing within 60 days after a change of name, residence address, principal business street address, or mailing address. Any licensed agent who has moved his or her residence from this state shall have his or her license and all appointments immediately terminated by the department or office.

    Failure to notify the department or office within the required time period shall result in a fine not to exceed $250 for the first offense and, for subsequent offenses, a fine of not less than $500 or suspension or revocation of the license pursuant to s.626.611 or s. 626.621.

    
    

25. Count I of the Amended Administrative Complaint alleged that Respondent's plea established the following violations of the Florida Insurance Code:

    1. Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Subsection 626.611(7), Florida Statutes (2002)];

       
       

    2. 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. [Subsection 626.611(13), Florida Statutes (2002)];

       
       

    3. 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. [Subsection 626.611(14), Florida Statutes (2002)];

       
       

    4. Any cause for which issuance of the license or appointment could have been refused had it then existed and been known to the department. [Subsection 626.621(1), Florida Statutes (2002)];

       
       

    5. 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. [Subsection 626.621(8), Florida Statutes (2002)].

    
    

26. At issue in Count I is whether the crime of possession of cannabis is a crime which involves moral turpitude. If it is, Respondent is subject to discipline under the compulsory disciplinary provisions of Subsection 626.611(14), Florida Statutes (2002). If it is not, Respondent is subject to discipline under the discretionary provisions of Subsection 626.621(8), Florida Statutes (2002).

27. It is concluded that the more persuasive view is that the mere possession of cannabis is not a crime which involves moral turpitude, absent special factors regarding the offender's

    societal status or responsibilities. Pearl v. Florida Board of Real Estate, 394 So. 2d 189 (Fla. 3rd DCA 1981), discussed various definitions of the term "moral turpitude" before concluding that the mere possession of a controlled substance by a real estate salesman is not a crime involving moral turpitude. Milliken v. Department of Business and Professional Regulation, 709 So. 2d 595, 597 (Fla. 5th DCA 1998), another case involving a realtor, recognized that mere possession does not involve moral turpitude, while holding that possession with intent to sell does involve moral turpitude.

28. It is noted that the court in Adams v. State, 406 So. 2d 1170 (Fla. 1st DCA 1981), held that possession of

    marijuana by two teachers did constitute a crime involving moral turpitude. The Adams court distinguished the holding of Pearl

    by noting that "the moral standard to be upheld by teachers is different from that of realtors, since teachers are

    charged . . . with providing leadership and maintaining effectiveness as teachers. By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams at 1172. It is concluded that the moral standard applicable to an insurance adjuster is more akin to that applied to a realtor than that applied to a teacher and that the Pearl holding should govern in this case.

29. In conclusion, Respondent is subject to discipline pursuant to the discretionary provisions of Subsection 626.621(8), Florida Statutes (2002), but not to the compulsory provisions of Subsection 626.611(14), Florida Statutes (2002). It is concluded that Respondent's criminal record does not establish his lack of fitness or trustworthiness to engage in the business of insurance. It is concluded that the facts established at the hearing did not prove that Respondent's violation was in any sense willful.

30. Count II of the Amended Administrative Complaint alleged that by failing to notify the Department within 30 days of his plea in the criminal proceeding, Respondent was subject to discipline on the following ground:

    (a) Failure to inform the department in writing within 30 days after pleading guilty or nolo contendere to, or being convicted of found guilty or, any 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 the case. [Subsection 626.621(11), Florida Statutes (2002)].

    
    

31. The Department established by clear and convincing evidence that Respondent failed to comply with the provisions of Subsection 626.621(11), Florida Statutes (2002), and that he is subject to discipline for that violation.

32. Count III of the Amended Administrative Complaint alleged Respondent's failure to submit a current resident address established the following violations of the Florida Insurance Code:

    1. Failure to notify the department in writing of a change of name, residence address, principal business street address, or mailing address within 30 days [see Endnote 1], as specified in this code. [Section 626.551, Florida Statutes (2002)];

       
       

    2. 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. [Subsection 626.611(13), Florida Statutes (2002)];

       
       

    3. 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. [Subsection 626.621(2), Florida Statutes (2002)].

       
       

33. The Department established by clear and convincing evidence that Respondent failed to comply with the provisions of Section 626.551, Florida Statutes (2002), and that he is subject to being disciplined for that violation. It is concluded that the facts established at the hearing did not prove that Respondent's violation was in any sense willful.

34. The remaining alleged violations set forth in Count I and Count III, not specifically rejected above, are found to be subsumed in the violations of Subsection 626.621(8) and

    Section 626.551, Florida Statutes (2002), respectively.

35. Florida Administrative Code Rule 69B-231.1502 provides, in relevant part:

    1. If it is found that a licensee has violated either Subsection 626.611(14) or 626.621(8), F.S., the following stated penalty shall apply:

       
       

       * * *

       
       

       1. If the licensee is not convicted of, but has been found guilty of or has pleaded guilty or nolo contendere to, a felony or a crime punishable by imprisonment of 1 year or more under the laws of the United States of America or of any state thereof or under the law of any other country, which does not involve moral turpitude and is not a crime involving breach of trust or dishonesty, the penalties are as follows:

       
       

       1. If the conduct directly relates to activities involving an insurance license, the penalty shall be a 24 month suspension.

          
          

       2. If the conduct indirectly involves dishonesty or breach of trust such as mishandling or misappropriation of money, the penalty shall be a 12 month suspension.

          
          

       3. If the conduct is not related to insurance license, the penalty shall be a 3 month suspension.

       
       

36. Because Respondent's conduct was not related to his insurance license, the appropriate penalty for his violation of Subsection 626.621(8), Florida Statutes (2002), as alleged in Count I of the Amended Administrative Complaint, is a three- month suspension.

37. Florida Administrative Code Rule 69B-231.090(11) provides that the penalty for a violation of Subsection 626.621(11), Florida Statutes (2002), as alleged in Count II of the Amended Administrative Complaint, is three months.

38. Florida Administrative Code Rule 69B-231.110(8) provides that the penalty for a violation of Section 626.551, Florida Statutes (2002), as alleged in Count III of the Amended Administrative Complaint, is two months.

39. Florida Administrative Code Rule 69B-231.040(2) and

    
    

    1. provides for the calculation of the penalty when multiple counts are involved as follows:

       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; provided however the department shall convert the total penalty to an administrative fine and probation in the absence of a violation of section 626.611, Florida Statutes, if warranted upon the Department's consideration of the factors set forth in rule Subsection 4-231.160(1).

    
    

40. Florida Administrative Code Rule 69B-231.160 provides aggravating or mitigating factors that should be considered in determining the final penalty to be imposed on a licensee as follows:

    The Department shall consider the following aggravating and mitigating factors and apply them to the total penalty in reaching the final penalty assessed against a licensee under this rule chapter. After consideration and application of these factors, the Department shall, if warranted by the Department's consideration of the factors, either decrease or increase the penalty to any penalty authorized by law.

    
    

    1. For penalties other than those assessed under rule 4-231.150:

       1. willfulness of licensee's conduct;

       2. degree of actual injury to victim;

       3. degree of potential injury to victim;

       4. age or capacity of victim;

       5. timely restitution;

       6. motivation of agent;

       7. financial gain or loss to agent;

       8. cooperation with the Department;

       9. vicarious or personal responsibility;

       10. related criminal charge; disposition;

       11. existence of secondary violations in counts;

       12. previous disciplinary orders or prior warning by the Department; and

       13. other relevant factors.

       
       

    2. For penalties assessed under rule 4-231.150 for violations of Subsections 626.611(14) and 626.621(8), F.S.:

       1. Number of years that have passed since criminal proceeding;

       2. Age of licensee at time the crime was committed;

       3. Whether licensee served time in jail;

       4. Whether or not licensee violated criminal probation;

       5. Whether or not licensee is still on criminal probation;

       6. Whether or not licensee's actions or behavior resulted in substantial injury to victim;

       7. Whether or not restitution was, or is being, timely paid;

       8. Whether or not licensee's civil rights have been restored; and

          (i) Other relevant factors.

          
          

41. In mitigation of Count I, it is noted that Respondent was not adjudicated guilty, he successfully completed his probation, and he did not serve jail time. The record is unclear as to whether Respondent ever lost his civil rights. There was no injured victim requiring restitution. In mitigation of Counts II and III, it is noted that Respondent's conduct was not willful, there were no victims requiring restitution, and there was no financial motivation behind Respondent's actions. Respondent has practiced under his license since 1986 without disciplinary action other than a letter of guidance. Respondent's lack of candor regarding the circumstances of his arrest must be considered as an aggravating factor. The undersigned concludes that Respondent's licensure should be suspended as set forth in the disciplinary guidelines, but that the suspensions for Counts II and III, both of which regard failure to provide notice to the Department, should run concurrently instead of consecutively, resulting in a total served suspension of six months for all violations.

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order finding Respondent guilty of violating Subsection 626.621(8), Florida Statutes (2002), as alleged in Count I of the Amended Administrative Complaint; guilty of violating Subsection 626.621(11), Florida Statutes (2002), as alleged in Count II of the Amended Administrative Complaint; and guilty of violating Section 626.551, Florida Statutes (2002), as alleged in

Count III of the Amended Administrative Complaint. It is further

RECOMMENDED that Respondent's licensure as an all lines adjuster be suspended for three months for the violation of Count I, for three months for the violation of Count II, and for two months for the violation of Count III, with the suspensions for Counts II and III to run concurrently.

DONE AND ENTERED this 30th day of April, 2004, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 30th day of April, 2004.

ENDNOTES

1/ Section 626.551, Florida Statutes (2002), was amended by Chapter 2002-206, Section 18, Laws of Florida, effective October 1, 2002. The amendment changed the notice of address change requirement from 30 to 60 days. The misstatement of the applicable timeframe in Count III is immaterial, because the gist of the allegation is that Respondent never notified the Department of his address changes, regardless of the applicable time limit.

2/ Florida Administrative Code Chapter 4-231 has been transferred to both Chapter Florida Administrative Code Chapters 69B-231 and 69O-231. The provisions of Florida Administrative Code Chapter 69B-231 are cited in this Recommended Order, though the provisions of Florida Administrative Code Chapter 69O-231 are identical.

COPIES FURNISHED:

Dana M. Wiehle, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

Edward Martin Wertepny

5102 Belmere Parkway, Apartment 2405

Tampa, Florida 33624

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: 03-003649PL

Orders for Case No: 03-003649PL