STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF INSURANCE, )

)

Petitioner, )

)

vs. ) Case No. 99-2478

)

JILL SOUSA BARKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

July 16, 1999, by video teleconference, with sites in Tallahassee and Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Christopher J. Karo, Esquire

Division of Legal Services Department of Insurance 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399

For Respondent: Stuart B. Yanofsky, Esquire

Colodny, Fass & Talenfeld, P.A.

2000 West Commercial Boulevard, Suite 232 Fort Lauderdale, Florida 33309

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 16, 1999, Petitioner filed a two-count Amended Administrative Complaint against Respondent. Count I alleged that Respondent violated provisions of Subsections 626.611(1), (7), (13), and (14), and 626.621(2) and (8), Florida Statutes, by having "entered a plea of nolo contendere [on September 5, 1997, in Lee County, Florida] to three . . . counts of sale or delivery of cocaine," a felony. Count II alleged that Respondent violated the provisions of Subsections 626.611(1), (7), (13), and (14),

and 626.621(2), (8), and (11), Florida Statutes, by having "failed to inform the Department of Insurance of your . . . plea [of nolo contendere] to a felony within thirty . . . days of such plea."

Respondent filed a response to the complaint which summarized her position as follows:

1. Concise Statement of Ultimate Facts and Relevant Information

   
   

   * * *

   
   

   [Respondent] was charged with a felony in September of 1998. She pled no contest and received a sentence of four years probation with a contemplated reduction after two years. She completed the terms of her probation in ten (10) months and was judicially relieved of the probation requirements.

   
   

   [Respondent] is a single mother who realizes the gravity of this situation. She has no means of support other than her job as an insurance agent. The circumstances underlying this matter constitute a single lapse in judgment for which [Respondent] has

   been punished. She has a sterling record and is both effective and trustworthy in her business as an insurance agent. She maintains significant meaningful ties to her family and community.

   
   

2. Demand for Relief

[Respondent] requests a formal evidentiary hearing and determination that the proposed action of the Department of Insurance be rejected or denied. Alternatively, [Respondent] requests mitigation of the proposed action such that she be allowed to retain her insurance licenses and appointments.

Subsequently, Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called Barry Lanier as a witness, and Petitioner's Exhibits 1-3 were received into evidence.

Respondent testified on her own behalf, and Respondent's Exhibits 1-4 were received into evidence.

The transcript of hearing was filed August 12, 1999, and the parties were accorded ten days from that date to file proposed recommended orders. The parties elected to file such proposals and they have been duly-considered.

FINDINGS OF FACT

The licensee

1. At all times material hereto, Respondent, Jill Sousa Barker, was licensed by Petitioner, Department of Insurance (Department), as a general lines agent. Such licensure dates to

   May 10, 1993, and, but for the pending action, Respondent has suffered no other complaint or disciplinary action.

   The violations

   
   

2. On February 11, 1997, an Information was filed in the Circuit Court, Twentieth Judicial Circuit, Lee County, Florida, Case No. 97-0058CF, charging Respondent with two counts of trafficking in cocaine (28 grams or more), contrary to Section 893.135(1)(b), Florida Statutes, and one count of sale or delivery of cocaine, contrary to Section 893.13(1)(a), Florida Statutes. Specifically, the Information alleged that:

   Count 1

   [Respondent] did unlawfully and knowingly sell, manufacture, or deliver a controlled substance, to-wit: 28 grams or more of cocaine or of any mixture containing cocaine, on or about November 7, 1996

   
   

   Count 2

   [Respondent] did unlawfully and knowingly have in her actual or constructive possession, a controlled substance, to-wit:

   28 grams or more of cocaine or of any mixture containing cocaine, on or about January 8, 1997

   
   

   Count 3

   [Respondent] did unlawfully sell or deliver a controlled substance, to-wit: cocaine, on or about December 18, 1996

   
   

   The offenses alleged in Counts 1 and 2 constituted the commission of a felony of the first degree, and the offense alleged in

   Count 3 constituted the commission of a felony of the second degree.

3. On September 3, 1997, Respondent entered a plea of nolo contendere to Count 3, as charged, and a plea of nolo contendere to the lesser included offense (Counts 1 and 2) of sale and delivery of cocaine (contrary to Section 893.13(1)(a), Florida Statutes), a second degree felony.1 The court entered an order withholding adjudication of guilt on each count, placed Respondent on probation for a period of four years under the supervision of the Department of Corrections (with early termination after two years if in compliance with all terms and conditions imposed), and assessed a fine and costs totaling $561. Respondent successfully completed her probation within one year, and was granted early termination by the court on June 15, 1998.

4. At no time did Respondent inform the Department in writing of having pled nolo contendere to the aforesaid felonies.2

   Aggravating and mitigating factors

   
   

5. Here, the seriousness of Respondent's criminal acts cannot be gainsaid, nor may they be casually dismissed (as counsel suggests in Respondent's Proposed Recommended Order at page 2) as "part of a sting operation and as such . . . a 'victimless' act." Rather, Respondent acted as a middleman on three occasions, purchased cocaine (up to one ounce) for a dealer (a "person involved in the regular purchase and sale of . . . cocaine") who she believed was otherwise unable to acquire the product, and for which service she was paid a fee ($300 to $500

   for the one ounce transaction). That the cocaine was not sold or further distributed, since the dealer was (unbeknownst to Respondent) operating under cover as an informant for the police department, does not render the crime less offensive.

   Notwithstanding, Respondent has suffered and paid a criminal penalty for her conduct and has demonstrated, based on objective evidence of right conduct, that she is truly remorseful for her actions and that she is worthy of holding a position of trust and confidence. Consequently, although suspension may be mandatory for a violation of Subsection 626.611(14), Florida Statutes, as discussed infra, it will serve no useful purpose. Therefore, any suspension should be de minimus.

6. In reaching the foregoing conclusion, it is observed that, while serious, the isolated events which gave rise to the criminal charges filed against Respondent do not fairly reflect her character. Rather, history reveals that Respondent, age 34 at the time of hearing (date of birth September 17, 1964), has been gainfully employed (at various times, in various capacities) in the insurance industry since age 18, and that she suffered a brief, abusive marriage in the late 1980s, which resulted in the birth of a son, Trent. When Trent was 10 months of age, Respondent left her abusive husband, and moved (from Miami, Florida) to North Carolina to reside with her sister. There, Respondent successfully gained licensure as a property and casualty agent, as well as a life and health agent, and was

   employed by State Farm. Respondent was then, and continues to be, the primary support for herself and her son, and she enjoys little or no assistance from her former husband.

7. Respondent remained in North Carolina approximately two years, and then returned to Miami, Florida, where she was employed by the Simons and Rose Insurance Agency. Following Hurricane Andrew (August 24, 1992), and the loss of all her possessions, she moved to Fort Meyers, Florida, to reside with her brother. There, Respondent successfully completed the

   240-hour course and examination to qualify for licensure in Florida, and on May 10, 1993, was licensed as a general lines agent.

8. Following licensure, Respondent was employed by AAA Insurance for two and one-half years, and thereafter by Tim Shaw Insurance Group, Inc. Respondent was, and continues to be, a model employee, a heavy producer, and is highly regarded among those who know of her.

9. Apart from her continued employment, and support and participation in her son's activities (school, karate, hockey, baseball, and Cub Scouts), Respondent has, since the incidents in question, also committed to regular attendance at Lighthouse Baptist Church. There she has also taught vacation bible school, and has sat as a member of the building committee, as well as the finance committee. Moreover, Respondent has continued to attend night school at Edison Community College, and expects to receive

   an associate degree (A.S.) in computer programming on December 10, 1999.

10. In all, Respondent has evidenced admirable traits, including resilience, tenacity, and character, which should not be overlooked or ignored because of the isolated incident in question. Given those traits, as well as her evident remorse, there is no reason to believe Respondent would engage in any further misconduct. Moreover, Respondent is painfully aware that, absent licensure, she would lose the means to support her family, and would most likely lose her home and the opportunity to complete her college program.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

12. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). That standard requires that "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).

13. Regardless of the disciplinary action sought to be taken, it may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984). Moreover, in determining whether Respondent violated the provisions of Sections 626.611 and 626.621, Florida Statutes, as alleged in the Amended Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . .

    This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

14. Here, the Department contends Respondent's conduct violated the provisions of Sections 626.611(1), (7), (13), and

    (14) and 626.621(2), (8), and (11), Florida Statutes.

15. Section 626.611, Florida Statutes, provides in pertinent part:

    . . . The department shall . . . suspend [or] revoke . . . the license . . . of any

    . . . 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 . . . 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.

16. Section 626.621, Florida Statutes, provides in pertinent part, as follows:

    The department may, in its discretion,

    . . . suspend,[or] revoke . . . the license or appointment of any . . . 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 . . . licensee, or appointee any one or more of the

    following applicable grounds exist under circumstances for which such . . . suspension [or] revocation . . . 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.

17. Here, the proof demonstrated, with the requisite degree of certainty, that Respondent's conduct directly violated the provisions of Subsection 626.611(14)3 and Subsections 626.621(8) and (11), Florida Statutes, as alleged in the Amended Administrative Complaint, but failed to support the conclusion that Respondent's conduct also violated the provisions of Subsections 626.611(1) and (7) and 626.621(2), Florida Statutes.4

    Finally, it is not reasonable to conclude that Respondent's conduct violated the provisions of Section 626.611(13), Florida Statutes. Munch v. Department of Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992) ("[A]pplying the words used [in Section 626.611(13)] their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found").

18. Having reached the foregoing conclusions, it remains to resolve the appropriate penalty that should be imposed. Here, the Department's Proposed Recommended Order suggests, as a penalty for the violations, that Respondent's license be suspended for a period of nine months. That proposal is consistent with Sections 621.611 and 621.621, Florida Statutes, as well as the penalty guidelines established by Rules 4-231.030, 4-231.040, 4-231.080, 4-231.090, and 4-231.150, Florida Administrative Code; however, the Department's proposal fails to consider the aggravating and mitigating factors established by Rule 4-231.160, Florida Administrative Code. Gadsden State Bank v. Lewis, 348 So. 2d 343 (Fla. 1st DCA 1977)(Agencies must honor their own substantive rules until they are amended or abrogated).

    c.f. Williams v. Department of Transportation, 531 So. 2d 994 (Fla. 1st DCA 1988)(Agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

19. Pursuant to Rule 4-231.160, Florida Administrative Code, the Department has established a predicate to support a deviation from its usual penalty guidelines. That Rule provides 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 sections 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

       9. other relevant factors.

          
          

20. Here, giving due regard to the relevant factors heretofore noted in the Findings of Fact, as well as the mandatory requirement for suspension following a violation of Subsection 626.611(14), Florida Statutes, an appropriate penalty in this case would be the suspension of Respondent's license for one day, followed by a one-year term of probation.

RECOMMENDATION

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

RECOMMENDED that a final order be rendered which finds the Respondent guilty of violating the provisions of Subsections 626.611(14) and 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating the provisions of Subsection 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. All charges that Respondent's conduct also violated the provisions of Subsections 626.611(1), (7), or (13), and 626.621(2), Florida Statutes, should be dismissed.

It is further RECOMMENDED that, as a penalty for such violations, Respondent's license be suspended for one day, followed by a one-year term of probation.

DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 9th day of September, 1999.

ENDNOTES

1/ The acceptance of Respondent's plea to the reduced charges followed the recommendation of local police authorities. That recommendation was based on Respondent's work during a six to eight month period as a confidential informant.

2/ At hearing, Respondent testified that between February 11, 1997, and September 5, 1997, she telephoned Petitioner's offices on three occasions, spoke with three separate individuals, and was informed that:

As long as adjudication was withheld and I'm on probation, that was enough. That was okay. That your license was not in jeopardy and that you did not have to do any further action with the Department and I relied on that information. That's why I didn't take any other action like the written request because I honestly didn't know that I had to do that. I felt that I had called three times and I got the same response every time that I didn't have to do anything. [Transcript, pages 41 and 42.]

According to Respondent, she did not identify herself during such telephone calls, and there is no evidence or suggestion that she informed the Department of the nature of the offense or her plea.

Considering the clarity of the law, discussed infra, it is most unlikely that Respondent would have been accorded the advice she contends she received during the course of her telephone calls to Petitioner's office if full disclosure had been made. It is more likely that the opinion she received was based on incomplete information or she misunderstood the import of any opinion given. However, Respondent's testimony that she did not know or recall that she was supposed to notify the Department of her plea of nolo contendere to a felony is credible. Consequently, it cannot be said that her failure to do so was willful or intentional as proscribed by Section 626.611(13), Florida Statutes.

3/ In concluding that Respondent was shown to have violated Section 626.611(14), Florida Statutes, by having pled nolo contendere to a felony which involves moral turpitude, it is observed that, according to Black's Law Dictionary, "moral turpitude" is:

The act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and

man. . . . Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others. . . . The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita. . . .

Black's Law Dictionary, 910 (5th Ed. 1979). The Supreme Court of Florida has defined "moral turpitude" as follows:

Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owned by man to man or by man to society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933). It is the nature of the conduct, not its characterization as a

crime, which raises the specter of moral turpitude. See Pearl v. Florida Board of Real Estate, 394 So. 2d 189 (Fla. 3d DCA 1981).

While the term "moral turpitude" has been so defined, the courts "have noted the difficulty of delineating in a general way which crimes are, or are not, ones involving 'moral turpitude.'" Milliken v. Department of Business and Professional Regulation, 709 So. 2d 595 (Fla. 5th DCA 1998). Notwithstanding, it is reasonable to conclude that the sale or delivery of cocaine is a crime involving moral turpitude. See Pearl v. Florida Board of Real Estate, supra, and cases cited therein. Moreover, pursuant to Rule 4-211.031(25)(a)10, Florida Administrative Code, the Department has designated the crime of "sale, importation, or distribution of controlled substances (drugs)" as one of moral turpitude.

4/ Petitioner's Proposed Recommended Order contains no mention or claim that Respondent's conduct was shown to have violated Subsections 626.611(1) and (7) and 626.621(2), Florida Statutes.

Consequently, such claim may be considered abandoned. Moreover, any such claim would be duplicative or subsumed within the violations of Subsections 626.611(14) and 626.621(8) and (11), Florida Statutes.

COPIES FURNISHED:

Christopher J. Karo, Esquire Division of Legal Services Department of Insurance

612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399

Stuart B. Yanofsky, Esquire Colodny, Fass & Talenfeld, P.A. 2000 West Commercial Boulevard Suite 232

Fort Lauderdale, Florida 33309

Honorable Bill Nelson

State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Y. Sumner, General Counsel 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: 99-002478

Orders for Case No: 99-002478