Findings Of Fact The Respondent, Randy Lee Pomerantz, is currently eligible for licensure and is licensed in the State of Florida as a general lines, property, casualty, surety, and miscellaneous lines insurance agent. On or about May 30, 1989, the Respondent, along with one of his former employees, was charged by Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, in Case No. 89-20405, with fifteen felony counts and three misdemeanor counts. The fifteen felony counts included one count of a RICO violation, one count of scheme to defraud, three counts of grand theft in the second degree, and ten counts of grand theft in the third degree. On or about July 13, 1990, the Respondent entered a plead of nolo contendere to Count VIII of the information, which was one of the counts charging grand theft in the third degree in violation of Section 812.014, Florida Statutes. The prosecutor entered a nolle prosequi as to all other counts insofar as they related to the Respondent. Adjudication of guilt was withheld on Count VIII. The Respondent was placed on probation for three years and ordered to pay restitution in the amount of $2,325.03. The Respondent's plea of nolo contendere to Count VIII of the Information was a plea of convenience. The Respondent did not commit the acts alleged in Count VIII of the Information. As the Respondent explained at the hearing, at the time of his plea his wife was about to give birth and he did not feel he could take a chance on a "roll of the dice" with a jury trial.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance and Treasurer issue a Final Order in this case dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of February 1991. MICHAEL PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4430 The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1, 2, and 4: Accepted. Paragraph 3: Rejected as contrary to the greater weight of the evidence. Although it is likely that the facts alleged in Count VIII of the Information related to the transaction of insurance business in this state, such is not established by clear and convincing evidence. And, in any event, the matter is irrelevant in light of the findings that the Respondent's plea was a plea of convenience and that the Respondent was not guilty of the crime charged. Findings proposed by Respondent: COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Ted Crespi, Esquire 110 Tower, Suite 815 110 S.E. 6th Street Fort Lauderdale, Florida 33301 Tom Gallagher Bill O'Neil State Treasurer and General Counsel Insurance Commissioner Department of Insurance The Capitol, Plaza Level and Treasurer Tallahassee, Florida 32399-0300 The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact By Petition To Determine The Invalidity Of A Proposed Rule, filed July 3, 1996, Petitioner sought to challenge Respondent's adoption of Proposed Rule 33-20.008, relating to establishment of certification standards of "Batterer's Intervention Programs" in the area of domestic violence. Petitioner's alleged affectuation of substantial interests, on which standing to bring this proceeding is premised, is set forth in paragraphs 4 and 5 of the Petition and read as follows: Petitioner's substantial interests are affected by the proposed rule because, by statute, it provides legal representation for many indigents subject to the legal requirements established by the proposed rules. Petitioner has an interest in assuring that the guidelines adopted here are available, reflect participation, are clear and are fair to its clients. As proposed, the guide- lines are not available. The attempt to adopt the guidelines by reference only deprives petitioner of written notice in the Florida Administrative Weekly, to which it subscribes, of the proposed guidelines and of any changes to the proposed guidelines as they are proposed and adopted. It also make the proposed guidelines unavailable as adopted rules, because they will not be available in the Florida Administrative Code. As proposed, the guidelines will not reflect participation, because the only issue in the rulemaking proceeding is whether or not the guidelines should be incorporated as rules of the department. The substance of the guidelines has already been established. The guidelines are not clear, especially in the area of assessment. Greater clarity is needed to prevent difficulties from arising on a case by case basis that petitioner will have to resolve by expending scarce resources. The guidelines are not fair to petitioner's clients, in the area of cost to indigents and in other areas. As counsel to those subject to the guidelines, petitioner's substantial interests will be affected by the proposed rule because it will be hampered in executing its responsibilities to its clients by the failings in the proposed rule just identified. Unless it takes this opportunity to resolve problems with the proposed rule here and now, petitioner will have to spend scarce resources during its representation of clients subject to the rule, case by case, to assure that each client's rights are fully protected. Petitioner also seeks to represent interests of its indigent clients in these proceedings. As indigents, its clients do not have the resources to protect themselves from the flaws in the proposed rule as that rule is applied to them. As counsel to a steady stream of indigents who face legal problems subject to the proposed rule, petitioner is uniquely suited to become familiar with, and to advance, its clients objections to the proposed rule. Just as associations have been given standing to seek relief on behalf of their members in rule challenge proceedings, petitioner should be permitted to seek relief on behalf of its statutorily defined client base.
The Issue The issue to be determined in this case is whether Petitioner's application for licensure as a Resident Customer Representative insurance agent should be granted.
Findings Of Fact The Petitioner is a receptionist for an insurance agency and is seeking licensure as a Florida Resident Customer Representative from the Department of Financial Services. The Department is an agency of the State of Florida responsible for the licensing of insurance agents and customer representatives in the State of Florida, in accordance with the provisions of Chapter 626, Florida Statutes. On October 22, 2003, the Petitioner filed a license application (electronically) with the Department seeking licensure as a Resident Customer Representative insurance agent. On her application for licensure, the Petitioner answered the following question in the negative: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? When the Petitioner signed her application for licensure she signed an "Applicant Affirmation Statement" and mailed it to the Department. In that statement, she swore that all the answers on the questions on the application were true and correct to the best of her knowledge and belief. She knew of the requirement to be truthful and honest on the application and that had been stressed to her by her instructor for the insurance pre-licensing course which she attended. On March 16, 1995, the Petitioner entered a plea of nolo contendere to one count of forgery and one count of uttering a forged instrument, both felonies. The related arrest had occurred on November 10, 1994. The Petitioner was sentenced to three years probation, required to make restitution, pay court fines and costs and to perform fifty hours of community service. She was to write a letter of apology to the victim and to have no contact with the victim. Adjudication of guilt was withheld. She performed all of the requirements of her sentence. She was excused by the court from providing the fifty hours of community service because she was pregnant at the time. The Petitioner acknowledges that she answered the question incorrectly and had made a mistake, because she felt the phrase "punishable by one year or more" meant that she had been imprisoned for one year or more, which she had not. She testified that she intentionally answered the question in the negative because she was not aware that her felony crimes were potentially punishable by one year or more. She signed the 1995 plea agreement, which indicated that it was then her understanding that the offenses could carry a maximum sentence of ten years imprisonment. At the time she answered the relevant question on her application, however, she did not have a present understanding or recollection that that would be the case. The point is, she answered in good faith. She did not intentionally answer the question untruthfully but rather due to a mistaken impression, after some nine or so years had elapsed, concerning the nature and effect of the punishment or potential punishment her crimes carried. The Petitioner has not had a criminal history since her 1995 plea, with the exception of a June 7, 2000 arrest in Hernando County, Florida, after her return to Florida from Tennessee, for purported violation of probation with regard to the 1995 felony case. The Petitioner's testimony demonstrates in a credible way that indeed she had fulfilled the requirements of her probation. The judge had released her from her community service requirement and the reason for the arrest, because she was believed to have failed to pay relevant costs and restitution, apparently was a mistake. She established that at or around the time of her moving to Tennessee she had paid the relevant monetary sums required with two cashiers checks. The court terminated her probation. It is found that this arrest was based upon a mistake. The Petitioner's supervisor corroborated the testimony of the Petitioner and established that the circumstances and mental impression leading to the Petitioner's negative answer show no intent to be untruthful or to defraud. The Petitioner and her witnesses (her supervisors) established that she has been fit and trustworthy in her work with the insurance agency. Petitioner has routinely handled sums of money for the agency and for insurance clients, always with proper accounting and never with any funds being missing or mis-appropriated. The Petitioner's employment provides her family's only livelihood for her and her child. Her employment is dependent on her being granted licensure as a Customer Representative. Denial of the license application will create a hardship for her. She was nineteen years of age at the time of the arrest and plea, made full restitution and complied with the terms of her probation.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department granting the licensure applied; or granting it for a probationary period of two years under reasonable terms and conditions specified by the Department in that final order. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 2nd day of December, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Tanya C. Lollie 4732 Elwood Road Spring Hill, Florida 34608 Elizabeth Penny, Certified Legal Intern Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
Findings Of Fact Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute. Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title 26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966. On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey. There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than 25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida. The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey. Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application for a Class "C" Private Investigator License. DONE and ENTERED this 21st day of April, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1992. Copies furnished: Ronald L. Jones, Esquire Jones and Koch 1200 East Lafayette Street, Suite 108 Tallahassee, FL 32301 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary, Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact Petitioner Martha L. Socarras is a Hispanic female born in 1970. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate. On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization Service. At the time of her release, she still owed $499,500 in restitution. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding. On January 3, 2005, Petitioner completed her probation and was discharged from supervision. Petitioner filed her application for licensure only a year later. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 13th day of November, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 13th of November, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent is guilty of violating Section 475.25(1)(m), Florida Statutes.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. On May 18, 1987, Respondent, Thomas J. Christenson (Christenson), submitted an application to the Department for licensure as a real estate salesperson. Included with his application was a sworn affidavit by Christenson dated April 21, 1987, which stated: The above named, and undersigned, applicant for licensure as a real estate salesman, upon being duly sworn, deposes and says that he is the person so applying, that he has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his knowledge, information, and records permit, without any evasions or mental reservations whatsoever . . . Question six of the application asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld . . ." To question six of the application, Christenson replied, "yes," and stated, "I was convicted of disorderly conduct (misdemeanor) and driving while intoxicated in Pennsylvania in 1981 and disorderly conduct in New Jersey in 1978. I completed probation on both occasions." However, Christenson failed to disclose that on or about January 2, 1987, approximately four months before he signed the affidavit on his real estate salesperson application, he had entered a plea of nolo contendere to and was adjudicated guilty of one count of resisting arrest without violence or that he was adjudicated guilty of criminal mischief on or about November 2, 1981, in the Municipal Court of Lower Township, New Jersey. Relying on Christenson's application, the Department issued Christenson a real estate salesperson's license. The records from the Chester County Courts Management System indicate that on April 19, 1984, Christenson entered into a plea bargain on the charges of driving under the influence of alcohol, drivers required to be licensed, and disorderly conduct. He was sentenced to jail for 48 hours, put on probation for 23 months and required to pay a fine of $102.50. On September 3, 1985, a bench warrant was issued for violation of parole. In 1991, the bench warrant was quashed and the petition was dismissed because Christenson's whereabouts had been unknown since August 15, 1985. On September 5, 1989, Christenson submitted an application to the Department for licensure as a real estate broker. On the application, Christenson signed a sworn affidavit which provided: The above-named, and undersigned, applicant for licensure as a real estate broker, upon being duly sworn, deposes and says that he/she is the person so applying, that he/she has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information, and records permit, without any evasions or mental reservations, whatsoever . . . Question seven of the application asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Christenson replied "yes" to the question and stated, "I paid a fine for a misdemeanor of disorderly conduct in Wildwood, N.J. in 1977." However, Christenson failed to disclose that on or about January 2, 1987, he had entered a plea of nolo contendere to and was adjudicated guilty of one count of resisting arrest without violence, that he was adjudicated guilty of criminal mischief on or about November 2, 1981, in the Municipal Court of Lower Township, New Jersey, that he was convicted of disorderly conduct and driving under influence of alcohol in Pennsylvania in 1981, and disorderly conduct in New Jersey in 1978, that he plea bargained on charges of driving while intoxicated, driving without a license, and disorderly conduct in 1984 in Chester County. In reliance upon Christenson's application, the Department issued Christenson a real estate broker's license. Christenson expected that the Department would conduct a detailed search into his prior records when he answered "yes" on his application for licensure as a real estate salesperson. Christenson testified that he did not reveal that he had entered a plea of nolo contendere and was adjudicated guilty of resisting arrest without violence in January 1987 because he did not understand that the conviction was for a criminal offense because the offense had arisen out of a traffic incident and he had paid only a fine and court costs, totaling $150. When Christenson filed his application for a broker's license, he was fully aware that his application for a salesperson's license was already on file with the Department and thought that the Department would also consider the information that he had included on the application for a salesperson's license. Since Christenson has held licenses with the Department, he has had no other disciplinary actions taken against his licenses. He has been the top salesman in his office for the last ten years and serves on the Chairman's Advisory Council for Coldwell Banker.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Thomas J. Christenson's license for one year and imposing an administrative fine of $1,000. DONE AND ENTERED this 24th day of March, 1999, 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 24th day of March, 1999. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Bruce Wilkinson, Esquire 221 East Osceola Street Stuart, Florida 33994 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The facts stated in the Joint Stipulation of the parties to the extent set forth below are hereby adopted as findings of fact: On December 21, 1990, Petitioners, each of which is a wholly-owned subsidiary of Dean Foods Company ("Dean"), were each convicted of a one-count felony charge brought under Section 1 of the Sherman Antitrust Act. On January 7, 1992, Respondent filed and Petitioners received notices of intent to each Petitioner pursuant to Section 287.133(3)(e)1, F.S. On January 28, 1992, Petitioners, pursuant to Section 287.133(3)(e)2, F.S., filed a petition, pursuant to Section 120.57(1), F.S., requesting an order determining that it is not in the public interest for Petitioners to be placed on the State of Florida Convicted Vendor List. Petitioners' convictions arose out of an investigation initiated by the Florida Attorney General into possible bid-rigging of school milk requirements contracts in Florida by dairies and distributors. In 1988, the Attorney General filed a civil action against these dairies and distributors, including Petitioners. Section 287.133(3)(e)3.c, F.S., establishes "[t]he degree of culpability of the person or affiliate proposed to be placed on the convicted vendor list" as a factor to be considered in the decision whether to place such person or affiliate on such list. The State of Florida's complaint alleged that the bid-rigging and contract allocation scheme began at least as early as 1978. According to the State's attorneys, the illegal activities actually started as early as the 1960's in southeastern Florida (McArthur Dairy's principal market area) and the 1970's in central and southwestern Florida (T.G. Lee Foods' principal market area). Dean purchased Petitioners in 1980. According to the State's attorneys, Jack Wells and James Clark, former sales managers at McArthur Dairy and T.G. Lee Foods, respectively, participated in such conspiracies during the 1960's and 1970's and fraudulently concealed their efforts from the former owners of T.G. Lee Foods and McArthur Dairy, from Dean and from the school boards. Thus, Dean unknowingly bought into these on-going conspiracies. While the fact that Dean bought into these preexisting schemes was not a legal defense, it is relevant to the issue of culpability. This fact and Dean's early settlement offer were given favorable consideration by the State of Florida during settlement discussions. Section 287.133(3)(e)3.d, F.S., establishes "[p]rompt or voluntary payment of any damages or penalty as a result of the conviction" as a factor mitigating against placement on the convicted vendor list. Dean promptly paid on behalf of Petitioners all civil damages owed the State arising out of such activities. In a press release dated August 1, 1988, the Attorney General confirmed Dean's payment in full settlement of the charges brought by the State of Florida against Petitioners. A federal grand jury sitting in Tampa, Florida also investigated this matter. Dean and Petitioners cooperated fully with that investigation. Pursuant to plea and settlement agreements dated September 12, 1990, entered into by each of Petitioners with the United States Department of Justice, Dean and Petitioners agreed to a comprehensive settlement. Said settlement required that Petitioner plead guilty to a one-count criminal information and pay $1 million each in criminal penalties and $175,000 each in civil damages to the federal government. Such civil liabilities and criminal penalties were paid to the federal government, as reflected in a letter from the federal prosecutor to officials of the United States Defense Logistics Agency dated February 21, 1991, which letter appears as Exhibit A to the Memorandum submitted by Dean to the Defense Logistics Agency. Section 287.133(3)(e)3.e, F.S., establishes "[c]ooperation with state or federal investigation or prosecution of any public entity crime" as a mitigating factor. Petitioners agreed to and did cooperate fully with the State of Florida in connection with its investigation. Petitioners also cooperated fully with the federal grand jury investigation. This cooperation was confirmed in the letter from the federal prosecutor referred to above, which states: We have found McArthur & T.G. Lee and their attorneys to have been most cooperative in this matter. We believe both the companies and their attorneys have shown a high degree of responsibility by agreeing to settle this matter in an expeditious manner. The negotiated settlement with these defendants resolves all matters relating to their operations in Florida. As a final point, we believe the early agreement by these companies and their counsel to settle this matter for a substantial sum gave the incentive for other corporate defendants to come forward and also offer substantial criminal and civil settlements. Several of those cases have now been favorably concluded. Section 287.133(3)(e)3.f., F.S., establishes "[d]isassociation from any other person or affiliate convicted of the public entity crime" as a mitigating factor. Jack Wells and James Clark, the only individuals at McArthur Dairy and T.G. Lee Foods implicated in the wrongdoing that give rise to the convictions in question, were terminated. The investigations conducted by the State of Florida and the Department of Justice disclosed no involvement or knowledge on the part of any other employee of Petitioners, Dean or any of Dean's other subsidiaries, as reflected in a letter form attorneys representing the State of Florida to Dean's attorney dated June 29, 1988. Section 287.133(3)(e)3.g, F.S., establishes "[p]rior or future self- policing by the person or affiliate to prevent public entity crimes' as a mitigating factor. All of Dean's subsidiaries, including Petitioners, have an active antitrust compliance program. Section 287.133(3)(e)3.k, F.S., establishes "demonstration of good citizenship" as a mitigating factor. Petitioners have been involved in civic and philanthropic affairs throughout the years. For example, T.G. Lee Foods and McArthur Dairy have spearheaded fundraising events for Edgewood Children's Ranch, a non-sectarian foundation for the support of under-privileged and abused children. T.G. Lee Foods and McArthur Dairy have also donated milk to the Ranch for a number of years. McArthur Dairy has made substantial contributions to organizations such as the University of Miami, and Miami Dade Junior College.
The Issue The issues are whether Respondent is guilty of pleading nolo contendere to three counts of uttering a forged instrument, three counts of forgery, and three counts of grand theft so as to constitute a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, in violation of Section 626.611(7), Florida Statutes; willful failure to comply with any provision of this Code, in violation of Section 626.611(13), Florida Statutes; a finding of guilty or pleading of guilty or nolo contendere to a felony involving a crime of moral turpitude, in violation of Section 626.611(14), Florida Statutes, any cause for which issuance of the license or permit could have been refused or denied by Petitioner, pursuant to Section 626.621(1), Florida Statutes; and a finding of guilty of pleading of guilty or nolo contendere to a felony, in violation of Section 626.621(8), Florida Statutes. An additional issue is whether Respondent failed to notify Petitioner of her plea of nolo contendere within 30 days, as required by Section 626.621(11), Florida Statutes. If Petitioner prevails on any of these issues, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a Customer Representative. On February 23, 2001, Respondent pleaded no contest to three counts of uttering a forged instrument--i.e., a bank check--on August 10, 2000, in violation of Section 831.02, Florida Statutes; three counts of forgery of a public record on August 10, 2000, in violation of Section 831.01, Florida Statutes; and three counts of third-degree grand theft on August 10, 2000, in violation of Section 812.014, Florida Statutes. She also agreed to pay restitution of $1892.87 and court costs. By Community Supervision Order entered February 27, 2001, the court accepted the plea, withheld adjudication, placed Respondent on two years' probation, required Respondent to pay restitution of $1892.87, and required Respondent to pay court costs. Respondent entered the plea of no contest to avoid the expense of a trial. She relied on the advice of her criminal attorney that this disposition of the criminal case would have no effect on her insurance license. She was unaware of her obligation to inform Petitioner of her entry of a no contest plea to these nine charges. Respondent finished paying restitution in March 2003 and has successfully completed her probation. One of her witnesses testified that he has worked with Respondent in the past and is aware of the conduct described above. He testified that he is establishing a new insurance agency in January 2004 and, if her licensing situation permits, he intends to employ her in that office.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating Sections 626.611(14) and 626.621(11) and suspending her Customer Representative license for five months. DONE AND ENTERED this 27th day of August, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 27th day of August, 2003. COPIES FURNISHED: 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 R. Terry Butler, Senior Attorney Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Karen Marie Maldonado 701 Southwest Ravenswood West Port St. Lucie, Florida 34983
