STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL SERVICES, f/k/a DEPARTMENT OF INSURANCE,

Petitioner,

vs.

KATHYLEAN ASHBURN-RILEY,

Respondent.

)

)

)

)

)

) Case No. 03-0631PL

)

)

)

)

)

)

RECOMMENDED ORDER

Notice was provided and on April 30, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the Offices of the Division of Administrative Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ladasiah Jackson, Esquire

Department of Financial Services 612 Larson Building

200 East Gaines Street Tallahassee, Florida 32399

For Respondent: No appearance

STATEMENT OF THE ISSUES

Should the Department of Financial Services, f/k/a Department of Insurance (Petitioner) impose discipline on the Non-resident All Lines Independent Adjuster License (75-20) held by Kathylean Ashburn-Riley (Respondent)?

PRELIMINARY STATEMENT

On December 12, 2002, Petitioner brought an administrative complaint, Case No. 63954-02-AG, against Respondent charging a number of violations of Chapter 626, Florida Statutes. This action was in relation to alleged misrepresentation by Respondent in her March 26, 2002, application to be licensed as a Non-resident All Lines Independent Adjuster by Petitioner.

Respondent is accused of providing a negative response, while under oath, to a question concerning any criminal record pertaining to her, which allegedly was a false and material misrepresentation based upon the existence of her criminal record. The administrative complaint refers to the issuance of the license sought and the attempt to discipline the license improperly obtained. Respondent disputed the allegations in the administrative complaint and requested a hearing pursuant to Section 120.57(1), Florida Statutes. On February 26, 2003, the Division of Administrative Hearings received the request for formal hearing. Following notice the hearing ensued.

Notwithstanding the request for formal hearing, Respondent did not attend.

At hearing Petitioner presented the testimony of Hazel Muhammed. Petitioner's Exhibits numbered one through eight were admitted. On May 6, 2003, the hearing Transcript was filed.

Petitioner timely submitted a proposed recommended order which has been considered in preparing the recommended order.

FINDINGS OF FACT

1. Respondent holds license EO24890 (75-20). The license was issued on April 26, 2002. Chapter 626, Florida Statutes, creates jurisdiction for the Petitioner to issue the license and regulate Respondent in its use.

2. On March 26, 2002, Respondent had made application for the license by executing a written application for Non-resident All Lines Independent Adjuster license.

3. One of the questions to be answered in the application was the 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?

   
   

   Respondent checked the box adjacent to the question indicating "no" as the answer.

4. Above the signature Respondent placed on the application language which states in pertinent part:

   I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief . . .

   
   

   * * *

   
   

   Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his/her official duty shall be guilty of a misdemeanor of the second degree.

   
   

   Under penalties of perjury I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that the 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.

   
   

5. Petitioner relied upon the information in the application. In particular, Petitioner relied upon the answer to the question concerning Respondent's criminal record as quoted and the oath accompanying Respondent's signature at the end of the application. Based upon that reliance the license was issued.

6. Contrary to the representations in the application in response to the subject question concerning Respondent's criminal history, Respondent has a criminal history. In the State of New Jersey v. Kathylean Williams a/k/a Kathylean

   Ashurn, Defendant, before the Superior Court of New Jersey, Mercer County, Law Division-Criminal, File No. 82-3660, Indictment Number 661-5-83, Respondent was charged with theft by deception. The indictment stated:

   The Grand Jurors of the State of New Jersey for the County of Mercer, upon their oaths present that KATHYLEAN WILLIAMS AKA KATHYLEAN ASHBURN on divers dates between March, 1980, through April, 1981, in the City of Trenton in the County aforesaid, and within the jurisdiction of this Court, did purposely obtain the property of the

   Mercer County Welfare Board, to wit: United States Currency valued at over $500.00, by deception, contrary to the provisions of

   N.J.S. 2C:20-4, and against the peace of the State, the Government and dignity of the same.

   
   

7. On September 17, 1984, in response to the Indictment Number 661-53-83 in the Superior Court of New Jersey, Mercer County, Respondent retracted her plea of not guilty and entered a plea of guilty to theft by deception. On November 1, 1984, it was Ordered and Adjudged that Respondent be sentenced to third degree probation for a period of five years, on condition that restitution of $3,777.10, less any wage execution payments already made at the rate of $80.00 per month as set forth in the Judgment Lien, be paid. A fine of $150.00 was imposed payable at $20.00 per month. On March 19, 1989, the probation in the case was terminated. The probation was terminated early following restitution made in full.

8. The subject question on the application for Non- resident All Lines Independent Adjuster license, which Respondent answered inappropriately concerning her criminal history, was not ambiguous. As the question contemplates, Respondent was charged and convicted of a crime in the State of New Jersey. A Judgment of Conviction (Sentence) was entered. It is inconceivable that Respondent did not understand the question and appreciate that the answer being given to the question in the application was untruthful. In addition the Respondent gave an oath by signing the application according to the instructions for the oath and by her signature acknowledged the consequences of her choice to provide the wrong answer about her criminal history as constituting a violation of the Florida Insurance Code. The fact that Respondent's name changed from the time in which she was involved in the criminal case in New

   Jersey and made application for the insurance license in Florida is not significant. In both instances the date of birth and social security number were the same which confirmed the identity to be the same.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case consistent with Sections 120.569 and 120.57(1), Florida Statutes.

10. In this administrative prosecution Petitioner must prove the allegations against Respondent by clear and convincing evidence. Department of Banking and Finance, Division of Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, (Fla. 1996), and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. Respondent is accused in Count I with falsely answering the question on the Non-resident All Lines Independent Adjuster License Application while under oath pertaining to her criminal history. As a consequence it is alleged that Petitioner relied upon the application and its falsehood concerning that criminal history in processing the application for license and granting the license. Petitioner now seeks to discipline the license provided upon the belief that Respondent had no criminal history.

12. As grounds for the action, Petitioner refers to Section 626.611, Florida Statutes, in particular:

    626. 11 Grounds for compulsory refusal, suspension, or revocation of agent's, title agency's solicitor's, adjuster's, customer representative's, service representative's, or managing general agent's license or appointment.--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:

    
    

    * * *

    
    

    (2) Material misstatement, mis- representation or fraud in obtaining the license or appointment or in attempting to obtain the license or appointment.

    
    

    * * *

    
    

    1. Demonstrated lack of fitness or trust- worthiness to engage in the business of insurance.

       
       

    2. Demonstrated lack of reasonably adequate knowledge and technical competence to engage in the transactions authorized by the license or appointment.

    
    

    * * *

    
    

    (14) Having been found guilty of or having pleaded guilty or nolo contendere to a felony or a crime punishable by imprisonment of one 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.

    
    

13. As well, Respondent is accused in accordance with Section 626.621, Florida Statutes, as follows:

    Grounds for discretionary refusal, suspension, or revocation of agent's, solicitor's, adjustor's, customer representative's, or managing general agent's license or appointment.--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:

    
    

    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.

       
       

       * * *

       
       

       (3) Violation of any lawful order or rule of the Department.

       
       

14. As grounds for the action Petitioner also cites Sections 626.8437, 626.844, 626.8457, 626.846 and 626.9521, Florida Statutes.

15. In accordance with the provisions quoted in their text, with exception of Section 626.621(3), Florida Statutes, all allegations have been proven. It is not necessary to refer to the more specific provisions within Sections 626.8437, 626.844, 626.8457, 626.846 and 626.9521, Florida Statutes, in determining the outcome.

16. Much as with the deception concerning the criminal offense in New Jersey, Respondent has deceived Petitioner in obtaining her Non-resident All Lines Independent Adjuster

Insurance license. The criminal offense was a form of fraud. It was a felony. It involved moral turpitude. It evidenced dishonesty. The insurance business is one demanding fitness and trustworthiness in dealing with the consuming public.

Respondent lacks those traits. Respondent's prior criminal history and material misstatement and misrepresentation in executing the application for the Non-resident All Lines Independent Adjuster license and obtaining that license with the knowledge of the fraud perpetuated constitute a matter sufficiently serious to call for the revocation of the Non- resident All Lines Independent Adjustor license. Rules 4- 231.020, 4-231.080, 4-231.090, 4-231.150 and 4-231.160, Florida

Administrative Code.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered revoking the Non-resident All Lines Independent Adjuster license held by Respondent.

DONE AND ENTERED this 30th day of May 2003, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 May, 2003.

COPIES FURNISHED:

Kathylean Ashburn-Riley 6948 Tom Woody Road

Snow Camp, North Carolina 27349

Ladasiah Jackson, Esquire Department of Financial Services Legal 4300

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: 03-000631PL

Orders for Case No: 03-000631PL