STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESA M. BASKINGER,

Petitioner,

vs.

DEPARTMENT OF INSURANCE,

Respondent.

)

)

)

)

) Case No. 02-4310

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on January 14, 2003, in Fort Myers, Florida, before Lawrence P. Stevenson, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Teresa M. Baskinger, pro se

4461 Ewing Circle

Port Charlotte, Florida 33948

For Respondent: Ladasiah Jackson, Esquire

Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a general lines agent should be granted.

PRELIMINARY STATEMENT

By letter dated August 22, 2002, Petitioner, Teresa M. Baskinger was notified by Respondent, the Department of Insurance and Treasurer (the "Department"), that her application for licensure as a general lines agent was denied.

Ms. Baskinger timely requested an administrative hearing, and on November 5, 2002, the case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal hearing. The hearing was scheduled for January 14, 2003, and was held on that date.

At the final hearing, Ms. Baskinger testified on her own behalf and presented the testimony of John R. Dibble, her employer. Ms. Baskinger's Composite Exhibit 1 was admitted into evidence. The Department presented no witnesses. The Department's Exhibits 1 through 8 were admitted into evidence.

On January 17, 2003, the one-volume Transcript was filed.

On January 28, 2003, the Department filed a motion to extend the time for filing Proposed Recommended Orders, which was granted by order dated January 30, 2003. On February 10, 2003, the Department timely filed its Proposed Recommended Order, which has been considered in rendering this Recommended Order.

Ms. Baskinger did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. By application dated July 12, 2002, Ms. Baskinger applied to the Department for a license as a general lines agent. On the application, Ms. Baskinger 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. On December 27, 2000, a one-count information was filed in the Circuit Court of the Twentieth Judicial Circuit In and For Charlotte County, State of Florida, charging Ms. Baskinger with welfare fraud in violation of Section 414.39, Florida Statutes, a third degree felony. On June 27, 2001,

   Ms. Baskinger entered a plea of guilty to the crime. Adjudication of guilt was withheld and Ms. Baskinger was placed on probation for a period of four years and ordered to pay restitution in the amount of $4,869.14. Ms. Baskinger was also required to perform 75 hours of community service.

3. Ms. Baskinger made full restitution, and an Order Terminating Probation was entered on July 3, 2002.

4. On July 12, 2002, Ms. Baskinger applied for licensure as a general lines agent.

5. The Department denied her application for licensure by letter dated August 22, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.731(1), Florida Statutes.

   CONCLUSIONS OF LAW

   
   

6. 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.

7. 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, 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.

      
      

      * * *

      
      

      (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.

8. 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, 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:

   * * *

   (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.

   
   

9. 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." Ms. Baskinger pled guilty to welfare fraud, the elements of which are set forth in Section 414.39, Florida Statutes, as follows:

   1. Any person who knowingly:

      
      

      1. Fails, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose a material fact used in making a determination as to such person's qualification to receive public assistance under any state or federally funded assistance program;

         
         

      2. Fails to disclose a change in circumstances in order to obtain or continue to receive any such public assistance to which he or she is not entitled or in an amount larger than that to which he or she is entitled; or

         
         

      3. Aids and abets another person in the commission of any such act,

      is guilty of a crime and shall be punished as provided in subsection (5).

      
      

10. The elements of welfare fraud require a person to knowingly misrepresent her qualifications to the state officials who administer public assistance. The knowing fraud component of the crime renders it a felony that involves moral turpitude. The Department had grounds to deny her application based on Subsections 626.611(14) and 626.621(8), Florida Statutes.

11. Subsection 626.731(1), Florida Statutes, sets forth the qualifications for licensure as a general lines agent and provides that the Department "shall not grant or issue a license as general lines agent to any individual found by it to be untrustworthy or incompetent . . . ." Ms. Baskinger's guilty plea to the crime of welfare fraud was sufficient to support denial of her application pursuant to Section 626.731(1),

Florida Statutes, and Section 626.611(1) and (7), Florida Statutes.

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 Teresa M. Baskinger for licensure as a general lines agent.

DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida.

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 4th day of March, 2003.

COPIES FURNISHED:

Teresa M. Baskinger 4461 Ewing Circle

Port Charlotte, Florida 33948

Ladasiah Jackson, Esquire Department of Financial Services

200 East Gaines Street Tallahassee, Florida 32399-0333

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: 02-004310

Orders for Case No: 02-004310