The Issue The issue to be determined is whether Petitioner's application for licensure should be granted.
Findings Of Fact Respondent, Department of Financial Services, is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes. On January 6, 2004, Respondent received an application from Petitioner for temporary licensure as a life and health insurance agent. Petitioner answered "no" to the following question on that application: Have you ever been convicted, found guilty, or pled 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? At the end of the application, immediately above a space for the applicant's signature and in a section of the application titled "Applicant Affirmation Statement," appears the following language: 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. . . . * * * 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 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(s). Pursuant to the instructions on the form, Petitioner signed the application, dated it December 12, 2003, and mailed it to Respondent. As documented by General Court Martial Order No. 17-01 of Sea Control Squadron Three Two at the Naval Air Station, Jacksonville, Florida, obtained by Respondent during the application process, Petitioner, on January 18, 2001, entered a plea of guilty to the charge of Distribution of Ecstasy, a Felony, and was found guilty of the offense. Petitioner was sentenced to confinement for a period of 40 months, and reduction to pay grade E-1, and subjected to dishonorable discharge. A portion of the sentence was suspended upon the issuance of the dishonorable discharge, following an order of Rear Admiral Jan C. Gaudio on May 30, 2002. By correspondence to Respondent, received on June 29, 2004, and through his testimony at the final hearing, Petitioner asserted that his attorney at the time informed him that his criminal record would never be seen outside the military. Notwithstanding his attorney’s assurance, Petitioner informed two subsequent employers that he thought he had a felony record. When those employers checked and discovered no convictions, he assumed the records were sealed as his previous attorney had assured him would be the case. Accordingly, he did not disclose the matter on his application. By Notice of Denial dated June 7, 2004, Respondent informed Petitioner that his application was denied for violations of Sections 626.611, 626.621(8), 626.785(1), and 626.831(1), Florida Statutes. Additionally, the denial informed Petitioner of required waiting periods set forth in Florida Administrative Code Rule 69B-211.042. In Petitioner’s case, he was also informed that a 16-year waiting period would be required before reapplication could be considered by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent acted properly in denying Petitioner’s application. DONE AND ENTERED this 4th day of January, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 January, 2005. COPIES FURNISHED: Gregg Allen Brewer 9342 Cumberland Station Drive Jacksonville, Florida 32257 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Peter Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues for determination are: (1) whether Respondent violated the provisions of the Insurance Code as alleged in the Administrative Complaint by pleading guilty to a felony and failing to report such plea to the Petitioner; (2) whether the offense to which Respondent pleaded guilty is a crime involving moral turpitude; and (3) if yes to either of the foregoing, what penalty should be imposed on Respondent's license as a non- resident life and health insurance agent.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed in the State of Florida as a non-resident life and health insurance agent. Respondent has been a licensed insurance agent for twenty-four years, having first been licensed in Florida in 1994. In addition to holding a Florida insurance license, Respondent is also licensed as an insurance agent in North Carolina. On or about January 13, 1997, an information was filed in the Sixth Judicial Circuit, in and for Pasco County, Florida, Case No. 97-00245CFAWS, charging Respondent with one count of scheme to defraud. This offense constitutes a felony. On September 4, 1997, Respondent pled guilty to the charge of scheme to defraud. The judge withheld adjudication of guilt, placed Respondent on probation for three years, and indicated that he would consider early termination of probation after Respondent served 50 percent of his sentence. On September 12, 1997, the court entered a written Order Withholding Adjudication of Guilt and Placing Defendant on Probation that stated in part the following: It appearing to the satisfaction of the court that you are not likely again to engage in a criminal course of conduct, and that the ends of justice and the welfare of society do not require that you should presently be adjudged guilty and suffer the penalty authorized by law. Now, therefore, it is ordered [and] adjudged that the adjudication of guilt [and] imposition of sentence are hereby withheld, [and] that you are hereby placed on probation for a period of three years under the supervision of the Department of Corrections subject to the Florida law. . . . Respondent did not inform the Department that he pled guilty to a felony and was on probation as required by Section 626.621 (11), Florida Statutes. The reason that Respondent failed to report the guilty plea and probation was that he believed that it was unnecessary because he was not adjudicated guilty. The aforementioned criminal charge against Respondent and his ultimate guilty plea to the felony of scheme to defraud stemmed from an incident that occurred in 1996. At that time, Respondent was unable to obtain automobile loans due to his bad credit resulting from his divorce. In order to obtain a loan from First Union Bank to purchase automobiles for himself, his wife, and his daughter, Respondent used the name and social security number of his brother, Mark Wilson. As a result of using his brother's name and social security number, Respondent was able to obtain a loan for $43,000.00 to purchase three vehicles, a 1993 Grand Prix, a 1990 Eagle Talon, and a 1995 Lincoln. Several months after Respondent obtained the loan, his brother, Mark Wilson, discovered the loans were on his credit record. Thereafter, Mark Wilson's credit record was corrected and Respondent entered into a stipulated settlement with First Union, whereby he agreed to pay the loans and First Union's attorney's fees incurred in connection with the case. Respondent's brother did not file charges against him. Respondent was current on the loan payments when Mark Wilson, Respondent's brother, learned that loans had been taken out in his name. At the time of the hearing, on August 5, 1998, the loans had been paid down to approximately $7,800.00, and Respondent was current in paying the balance. No person or entity lost any money as result of Respondent's actions. At the time Respondent used the aforementioned deception to obtain the automobile loans, he was very depressed and was undergoing psychological therapy by Marcia N. Davis, a licensed therapist in Asheville, North Carolina. Respondent has continued to undergo psychological treatment by Marcia N. Davis. Her current prognosis is that Respondent has made definite improvement and that she would not expect that he would break the law again. The criminal charge against Respondent was not related to any action taken by Respondent in his role as a licensed insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a Final Order be entered suspending the license of Respondent, Perry Murray Wilson, for two months. DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUMCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998. COPIES FURNISHED: Patrick Creehan, Esquire Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul B. Johnson, Esquire Post Office Box 3416 Tampa, Florida 33601 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondents failed to maintain and deposit payment instruments into their own commercial account in a federally- insured financial institution, in violation of section 560.309(3), Florida Statutes (2013).1/
Findings Of Fact The Parties Petitioner, Office of Financial Regulation, is the state agency charged with administering and enforcing chapter 560, Florida Statutes, including part III of that statute, related to money services businesses. Respondent, Moctezuma Envios, Inc. ("Moctezuma Envios"), is a Florida corporation operating as a money services business, cashing checks and acting as a money transmitter, as authorized by License No. FT30800203 issued by Petitioner. Its address of record is 19784 Southwest 177th Street, Miami, Florida 33187. Respondent Liliana Carrascal has a 100 percent controlling interest in, and is the sole officer of, Moctezuma Envios.3/ The Events Giving Rise to this Proceeding Respondents have been in the money services business, and Moctezuma Envios has been licensed to conduct this business, since 2001. Respondents were doing business with Intermex Wire Transfer LLC ("Intermex"), a money transfer services business, before the events giving rise to this proceeding. Sometime prior to January 2013, Carrascal was approached by representatives of Intermex about opening an account in the name of Moctezuma Envios at U.S. Bank.4/ Intermex representatives told Carrascal that the account could be used for depositing the checks that Moctezuma Envios cashed and also for paying Intermex for money transfers. According to Carrascal, this offer was attractive to Respondents because U.S. Bank accepted third-party checks, and opening a check-cashing account that accepts such checks is difficult. Additionally, having the account would streamline the process by which Moctezuma Envios paid Intermex to serve as its money transmitting agent, and would enable Carrascal to avoid driving across town carrying large sums of money to deposit cash into Intermex's account. Carrascal testified, credibly, that Intermex representatives told her she would be the owner of the account, that she could deposit payment instruments into and withdraw funds from the account, and that the account would be compliant with the law. On the basis of these representations, Carrascal authorized Intermex representatives to open an account in the name of Moctezuma Envios at U.S. Bank. The account number was XX3503. The persuasive evidence shows that Account No. XX3503 was established as an agent account, with Moctezuma Envios acting as a money transmitter agent for Intermex. As such, Moctezuma Envios was authorized to deposit funds and payment instruments into the account. Robert Lisy and Darryl J. Ebbert, both employees of Intermex, were signatories on Account No. XX3503, and, as such, were the owners of the account. They were authorized to deposit funds into, withdraw funds from the account, and otherwise control the account. The persuasive evidence further shows that Respondents were not signatories to Account No. XX3503.5/ Accordingly, they were not authorized to withdraw funds from the account. During the period spanning from January 2013 to late 2014, Respondents deposited payment instruments received through their check-cashing business into Account No. XX3503. The persuasive evidence shows that once Respondents deposited the payment instruments into Account No. XX3503, they lost access to and control of those funds. This is because, as noted above, only Intermex representatives were authorized signatories on the account. When Respondents deposited payment instruments into Account No. XX3503, those funds were thereafter "swept" into Account No. XX7788, which was Intermex's main operating account at U.S. Bank. This means that the funds were removed from Account No. XX3503 and deposited in Account No. XX7788. Respondents were not signatories to Account No. XX7788, so did not have access to the funds in that account. As a result of Respondents not being signatories on either Account No. XX3503 or Account No. XX7788, once they deposited payment instruments into Account No. XX3503, they lost access to and control of the funds paid under those payment instruments. The persuasive evidence establishes that Respondents deposited approximately ten percent of the payment instruments that they received from their check cashing business into Account No. XX3503 during the timeframe pertinent to this proceeding. The other payment instruments were deposited into other accounts that Respondents held at other banks. Carrascal credibly testified that when Intermex first approached her about opening an account at U.S. Bank, she was concerned because she knew that the law required payment instruments to be deposited into the business's own commercial account. Thus, she declined to open such account. When Intermex representatives approached her a second time, they told her that the account would be in the name of Moctezuma Envios and assured her that Moctezuma Envios would be in compliance with the law. She believed them, so authorized them to open Account No. XX3503. Carrascal further testified, credibly and persuasively, that as soon as she received notice that Petitioner believed that Account No. XX3503 did not comply with the law, she closed the account and ceased doing business with Intermex and U.S. Bank. The credible, persuasive evidence establishes that Respondents did not attempt to conceal any information or mislead Petitioner regarding Account No. XX3503. Carrascal credibly and persuasively testified that she had intended to fully comply with the law. She had received training in order to serve as Moctezuma Envios' compliance officer, and Moctezuma Envios has a legal compliance manual in place to help ensure that it complies with applicable laws. The evidence establishes that Moctezuma Envios has been disciplined twice for previous violations of applicable laws. Specifically, some time prior to December 2008, Moctezuma Envios failed to file currency transaction reports concerning cash received from another chapter 560 licensee and failed to timely file at least two quarterly reports, as required by statute and rule. In 2011, Moctezuma Envios failed to timely file a required quarterly report. Both violations were resolved pursuant to Stipulation and Consent Agreement between Petitioner and Moctezuma Envios, under which Moctezuma Envios paid fines and agreed to comply with the law in the future. Carrascal acknowledged that the violations had occurred, but testified, credibly, that in both instances, Respondents had not intended to violate the law, and that Respondents had cooperated with Petitioner to rectify the circumstances that had resulted in noncompliance. Petitioner has adopted rule 69V-560.1000, which codifies a penalty matrix that authorizes and enables Petitioner to impose a fine for a specific statutory or rule violation, based on the level of fine adopted in rule 69V-560.1000(150) and the number of times a licensee has violated that particular statute or rule. Rule 69V-560.1000(150) establishes a range of $1,000 to $3,500 for a Level A fine; $3,500 to $7,500 for a Level B fine; and $7,500 to $10,000 for a Level C fine. Here, Respondents are charged with having violated section 560.309(3) for the first time. Pursuant to rule 69V-560.1000(85), Respondents are subject to a Level B fine, which ranges from $3,500 to $7,500. Rule 69V-560.1000(148) sets forth the factors, which Petitioner characterizes as "aggravating" or "mitigating," that must be considered in determining the specific amount of the fine within the ranges established in rule 69V-560.1000(150). 29. Rule 69V-560.1000(148) states: In accordance with Sections 560.1141(2) and (3), F.S., the Office shall consider the following circumstances in determining an appropriate penalty within the range of penalties prescribed in this rule for each violation as based upon the citation number. The Office also shall consider these circumstances in determining a penalty that deviates from the range of penalties prescribed for each violation and citation number as a result of such circumstances: Whether the violation rate is less than 5% when compared to the overall sample size reviewed; The degree of harm to the customers or the public; The disciplinary history of the licensee; Whether the licensee detected and voluntarily instituted corrective responses or measures to avoid the recurrence of a violation prior to detection and intervention by the Office; Whether the licensee’s violation was the result of willful misconduct or recklessness; Whether at the time of the violation, the licensee had developed and implemented reasonable supervisory, operational or technical procedures, or controls to avoid the violation; Where the violation is attributable to an individual officer, director, responsible person, or authorized vendor, whether the licensee removed or otherwise disciplined the individual prior to detection and intervention by the Office; Whether the licensee attempted to conceal the violation or mislead or deceive the Office; The length of time over which the licensee engaged in the violations; Whether the licensee engaged in numerous violations or a pattern of misconduct; The number, size and character of the transactions in question; Whether the licensee provided substantial assistance to the Office in its examination or investigation of the underlying misconduct; Other relevant, case-specific circumstances. Andrew Grosmaire, Chief for Petitioner's Bureau of Enforcement, testified that Petitioner proposes to impose a $7,500 fine on Respondents, and explained the basis for that amount. Grosmaire testified that Petitioner did not have any information regarding several of the factors listed in rule 69V-560.1000, so did not "use" those factors in determining the fine to be imposed on Moctezuma Envios.6/ Specifically, Petitioner did not use the factors in subsections (a), (b), (d), (e), (f), (g), (h), (i), (j), (l), and (m) in determining the fine. Petitioner did consider subsection (c), regarding the licensee's disciplinary history, in determining the fine. As discussed above, Petitioner presented evidence showing that Moctezuma Envios had been disciplined twice for violations of provisions of chapter 560 and implementing rules, albeit not for the same violation that is the subject of this proceeding.7/ Grosmaire noted that it was "unusual" for a licensee to have two previous violations. Petitioner thus considered Moctezuma Envios' disciplinary history an aggravating factor in determining the applicable fine. Petitioner also considered subsection (k), which addresses the number, size, and character of the transactions in question. According to Grosmaire, "100 percent of the checks were deposited into this account during the period in question," so Petitioner considered this an aggravating factor in determining the appropriate fine. As noted above, pursuant to rules 69V-560.1000(85), (147), and (148), Petitioner proposes to fine Respondents $7,500. Findings of Ultimate Fact Regarding Alleged Violation Florida case law holds that the determination of whether alleged conduct violates a statute or rule is a question of ultimate fact. Gross v. Dep't of Health, 819. So. 2d 997, 2002 (Fla. 5th DCA 2002); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st SCA 1995). For the reasons discussed above, the undersigned finds that the evidence clearly and convincingly establishes that Respondents did not own Account No. XX3503, into which payment instruments from Moctezuma Envios' check-cashing business were deposited. Although Respondents were able to deposit payment instruments into Account No. XX3503, they were not signatories on the account so could not withdraw funds from that account. Further, Respondents were not signatories to, and therefore did not have access to funds in, Account No. XX7788, into which Intermex swept the funds from the deposited instruments in Account No. XX3503 on a routine basis. On this basis, it is determined that Petitioner demonstrated, by clear and convincing evidence, that Moctezuma Envios and Liliana Carrascal, by virtue of being an affiliated party pursuant to section 560.103(1), violated section 560.309(3) by failing to maintain and deposit payment instruments into their own commercial account at a federally- insured financial institution. As discussed above, Petitioner proposes to fine Respondents $7,500, the maximum amount that can be imposed for a Level B fine. Petitioner reached this amount taking into account the factors set forth in rules 69V-560.1000(148)(c) and (k), which it considered to be aggravating factors that militated imposition of a higher fine within the Level B range. As discussed above, Carrascal presented evidence regarding several of the factors in rule 69V-560.1000(148) considered in determining the appropriate fine. Specifically, Carrascal testified, persuasively, that no harm to her customers or the public resulted from Respondents' violation of section 560.309(3); that Respondents' violation of the statute was inadvertent and was the result of misrepresentation by Intermex, so that the violation was not the result of Respondents' willful conduct or recklessness; that Moctezuma Envios has in place a professionally-prepared compliance manual to help Respondents avoid future violations, including the type of violation at issue in this proceeding; that once Carrascal became aware that Petitioner believed Account No. XX3503 was noncompliant with section 560.309(3), she cooperated fully with Petitioner's investigation and did not attempt to conceal, mislead, or deceive Petitioner; that as soon as Carrascal became aware of the noncompliance issues with Account No. XX3503, she closed the account and Respondents terminated all business dealings with U.S. Bank and Intermex, the latter with which Respondents had a business relationship that predated the matters giving rise to this proceeding; and that the deposits into Account No. XX3503 constituted only approximately ten percent of the total deposits Respondents made during the timeframe pertinent to this proceeding, with the other 90 percent being deposited in other accounts at other financial institutions. As discussed above, the undersigned found Respondents' evidence of mitigation regarding the factors set forth in rules 69V-560.1000(148)(b), (e), (f), (h), (k), and (l) credible and persuasive. Further, the undersigned considers relevant that in this case, Respondents affirmatively were misled into violating the law by Intermex.8/ Petitioners did not present persuasive countervailing evidence rebutting the evidence of mitigation presented by Respondents with respect to the amount of the fine. As noted above, Grosmaire testified that Petitioner considered subsections (c) and (k) as aggravating factors in determining that Respondents should be fined $7,500. Rule 69V- 560.1000(148) does not specifically address how much weight each factor should be assigned in determining the specific fine within the authorized range, and Grosmaire did not explain how the factors Petitioner "used" were weighed in arriving at the $7,500 fine. Considering the "aggravating" and "mitigating" factors on which the parties presented evidence, the undersigned determines that a $4,500 fine should be imposed on Respondents in this proceeding.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Financial Regulation enter a final order finding that Respondents, Moctezuma Envios, Inc., and Liliana Carrascal, violated section 560.309(3), Florida Statutes, and imposing a fine of $4,250. DONE AND ENTERED this 22nd day of June, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2016.
The Issue The issue in this proceeding is whether the Petitioner meets the qualifications for licensure as a real estate salesman and should be allowed to sit for the examination for licensure administered by the Florida Real Estate Commission. The Commission contends that Petitioner is not eligible for licensure on account of several convictions of criminal offenses. Respondent contends that due to the passage of time and subsequent good conduct, the criminal convictions do not render him ineligible for licensure.
Findings Of Fact The Petitioner is a natural person over eighteen years of age and is a bona fide resident of the State of Florida. Except for issues raised with respect to several criminal convictions, there is no issue as to Petitioner's eligibility to take the examination for licensure as a real estate salesman. On August 20, 1962, Petitioner was convicted in the United States District Court for the Southern District of Florida of the offenses of mail fraud and mail fraud conspiracy. He was sentenced to serve consecutive sentences of eighteen months on each of ten counts of an indictment, making a total of fifteen years. On September 20, 1963, Petitioner was convicted by the United States District Court for the Southern District of Florida of conspiracy to transport stolen securities in foreign commerce and causing stolen securities to be transported in foreign commerce. He was sentenced to three-year and one- year prison terms on two separate counts of an indictment. The sentences were imposed to run concurrently with each other and with the sentence imposed in the earlier mail fraud conviction. These convictions resulted from guilty verdicts entered subsequent to jury trials. Petitioner ultimately served three years in prison as a result of these convictions and was paroled in 1971. On June 26, 1967, Petitioner was convicted in the criminal court of record in Dade County, Florida, of issuing worthless checks. He was placed on probation for a period of five years and ordered to make restitution. On or about May 29, 1981, the Florida Office of Executive Clemency issued a Certificate of Restoration of Civil Rights to the Petitioner. By Order entered July 8, 1981, the Governor and Cabinet of the State of Florida granted specific authority to Petitioner to receive, possess or transport a firearm in commerce. Petitioner has been engaged in various business activities in the Orlando area since 1979. He enjoys a reputation for honesty and integrity among business associates. Since he was released from prison in 1971, Petitioner has lived a law-abiding life. He is active in his church and in various civic activities. It appears that if the Petitioner is licensed as a real estate salesman, he would faithfully and honestly represent clients. Petitioner tends to minimize the role that he played in the activities that led to his criminal convictions. It does appear, however, that Petitioner is generally remorseful, and that he has shown himself capable of living an honest life. More than seventeen years have elapsed since Petitioner engaged in any criminal conduct that resulted in a conviction.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, as amended at hearing, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a 46-year-old man who holds the following Florida insurance licenses: a 2-16 life agent license (with an original issue date of July 25, 1987); a 2-18 life and health agent license (with an original license date of July 25, 1987); and a 2-20 general lines property and casualty agent license (with an original issue date of October 2, 1986). At no time during the period that he has held these licenses has he ever been disciplined by the Department or its predecessor. For the past 20 years, Respondent has worked as an agent for State Farm. On or about November 3, 2006, a criminal information was filed against Respondent in Palm Beach County (Florida) Circuit Court Case No. 06-CF013354AMB. The information alleged that Respondent, "on or between September 22, 2006, and October 8, 2006, . . . did willfully, maliciously, and repeatedly follow, harass or cyberstalk AIMEE NADELHOFFER and did make a credible threat, with the intent to place AIMEE NADELHOFFER or AIMEE NADELHOFFER'S child, sibling, spouse, parent or dependent in reasonable fear of death or bodily injury, contrary to Florida Statute 784.048(3) [Florida Statutes]." Aimee Nadelhoffer, the person named as the alleged victim in the information, is Respondent's former wife. She and Respondent are the parents of a three-year-old child for whom Respondent is paying child support. On November 30, 2006, pursuant to a plea agreement, Respondent (who had no previous criminal record) pled guilty to the crime alleged in the criminal information filed against him. At the time he entered into the plea agreement, Respondent was in jail awaiting trial and concerned that he would "lose [his] State Farm agency" if he remained incarcerated until his trial was held. Adjudication of guilt was withheld,1 and Respondent was placed on probation for three years, with conditions that included: not "associat[ing], communicat[ing], or hav[ing] any contact [except for contact by e-mail in reference to child custody issues] with [the] victim," Aimee Nadelhoffer, who had suffered substantial emotional distress as a result of Respondent's admitted2 criminal wrongdoing,3 nor "com[ing] within 200 f[eet]t of her residence or place of employment"; undergoing a "psychological evaluation" and completing any "recommended treatment"; and submitting to random drug testing at his own expense. It was furthered ordered that Respondent could "request early termination of probation after 2 years if [he] successfully complete[d] all conditions and [there were] no violations." In computing Respondent's "lowest permissible sentence" pursuant to Section 921.0024, Florida Statutes,4 the sentencing judge assessed no additional points in any of the following categories set forth on the Criminal Punishment Code Worksheet: "additional offenses," "victim injury," "prior record," "legal status violation," "community sanction violation," "firearm/semi-automatic or machine gun," "prior serious felony," and "enhancements." For his commission of the "primary offense" he was assessed 36 points.5 On September 19, 2007, in accordance with a request made by Aimee Nadelhoffer, the conditions of Respondent's probation were "modified to provide [that Respondent] may have 'No Violent Contact' [as opposed to no contact of any kind] with Aimee Nadelhoffer." Respondent presently has contact with Aimee Nadelhoffer, dealing with her cooperatively concerning "issues associated with [child] visitation and the like." Since the entry of his guilty plea, Respondent has not spent any time in jail. Respondent is still on probation. No proceedings have been brought seeking to revoke his probation. In November 2006, two other criminal informations were filed against Respondent. One was filed in Palm Beach County Court on November 7, 2006, and charged, in its two counts, that Respondent, on October 19, 2006, did: "willfully, after having been served with an Injunction for Protection Against Domestic Violence issued pursuant to section 714.30 . . . , knowingly and intentionally come within 100 feet of AIMEE NADELHOFFER's motor vehicle, contrary to Florida Statute 741.31(4)(a)6." (Count 1); and "leav[e] the scene of a crash involving damage, in violation of Section 316.061, Florida Statutes" (Count 2). The other criminal information was filed in Palm Beach County Court on November 17, 2006, and charged Respondent with two counts of violating an injunction for protection (of Aimee Nadelhoffer) against domestic violence, in violation of Section 741.31(4)(a)5., Florida Statutes.6 After the Department learned of Respondent's guilty plea in Palm Beach County (Florida) Circuit Court Case No. 06- CF013354AMB, it filed the two-count Administrative Complaint against Respondent described in the Preliminary Statement of this Recommended Order. At Respondent's request, the matter was subsequently referred to DOAH for hearing. During the discovery phase of the proceeding, Respondent, through his attorney, took the deposition of Kathy Spencer, whom the Department had designated under Fla. R. Civ. P. 1.310 as its representative for purposes of "explain[ing] the Department's decision as to what disciplinary action should be imposed on [Respondent] for the charges set forth in the Administrative Complaint [in this case]." In her deposition testimony, Ms. Spencer clarified what the Department had stated in the Administrative Complaint regarding the disciplinary action it intended to take against Respondent. She testified that the Department was seeking to impose a three-month suspension for the violations alleged in Count I and an additional three-month suspension for the wrongdoing alleged in Count II. She further testified that, with respect to Count I, it was the Department's position that the crime to which Respondent had pled guilty in Palm Beach County (Florida) Circuit Court Case No. 06-CF013354AMB was a "felony involving moral turpitude."7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order finding Respondent guilty of the violations alleged in Count I of the Administrative Complaint and suspending his licenses for three months for committing these violations. DONE AND ENTERED this 4th day of February, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 February, 2008.
Conclusions THIS CAUSE came on for consideration and final agency action. On April 10, 2001, an Administrative Complaint was issued by the Department of Insurance alleging that Respondent Matilda M. Vath failed to timely remit cash collateral and misappropriated, converted or wrongfully withheld fiduciary funds. Respondent timely filed a request for a proceeding pursuant to section 120.57(1), Florida Statutes. For purposes of the Section 120.57, Florida Statutes, hearing this matter was consolidated with the related case in the matter of John L. Vath in case no. 40065-01-AG. Pursuant to notice, the consolidated matter was heard before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings, on November 30, 2001. After consideration of the record and argument presented at the hearing, the Administrative Law Judge issued his consolidated Recommended Order on February 22, 2002. (Attached as Exhibit A). The Administrative Law Judge recommended that a Final Order be entered suspending for three (3) months the licenses and eligibility for licensure of Matilda M. Vath as a limited surety agent, and requiring the refunding of $318.00 to Augustavo Porro. On March 8, 2001, the Respondent timely filed exceptions to the Recommended Order. The Respondent's exceptions are addressed below. RULINGS ON REPONDENT'S EXCEPTIONS Respondent's factual exceptions, which were filed in consolidation with the matter of John L. Vath in case no. 40065-01-AG, were made in an eight paragraph Exceptions to Findings of Fact. Respondent's exceptions do not specifically identify a single specific paragraph or finding of fact in the Recommended Order. For the purpose of this ruling on Respondent's exceptions each paragraph of Respondents’ Exceptions to Findings of Fact is treated as a separate exception. 1. Respondent's first exception is that the record does not support a finding that any willful act was done in violation of the laws of the State of Florida. This exception is not made to any specific finding of fact in the Recommended Order. Respondent's exception is made without support of the record.. It is legally insufficient to merely state that the findings of fact are not supported by the record or were not supported by competent substantial evidence. Hoover v. Agency for Health Care Administration, 676 So.2d 1380 (Fla. 3 DCA 1996). For the purpose of ruling on Respondent's exception it is presumed that the Respondent's exception relates to paragraph 28 of the Recommended Order, which finds as follows: 28. In this case, either the Respondents acted in an untrustworthy and dishonest manner in willful violation of the statutes and rules relevant to this incident or the facts establish a lack of reasonable adequate knowledge and technical competence on their part. There is competent substantial evidence in the record to support this finding of fact. Although the two forfeited bonds totaled only $2,000, the Petitioners took from Mr. Porro money far in excess of that amount. The Petitioners took from Mr. Porro $500 for the two $250 bonds even though those bonds had not been forfeited. The Petitioners’ also took from Mr. Porro an additional $304 for costs and expenses that had not been incurred and which the Petitioners have subsequently not been able to substantiate. Moreover, Petitioners’ defense that the violations were attributable to errors by the Petitioners’ office staff not timely remitting the money owed to Mr. Porro, would, if believed, not excuse the Respondent's from the conclusion that they willfully acted in an untrustworthy and dishonest manner or that the facts establish a lack of reasonable adequate knowledge and technical competence on their part. As evidence of their willful disregard for the responsibilities imposed upon them by the insurance code to faithfully handle monies entrusted to them, the Respondent's admitted that neither corporate officer of the agency exercised direct supervisory control over the office staff they had charged with the responsibility of remitting the money due to their customers, including Mr. Porro. (See Hearing Transcript, page 85, line 25, through page 86, line 17; and page 102, lines 10 through 24). The agency’s authority to reject or modify findings of fact is limited by the provisions in section 120.57(1)(I), Florida Statutes, which provides that “the agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” Because there is competent substantial evidence in the record to support the ALJ's finding of fact, the Department would have to improperly reject the Administrative Law Judge’s findings of fact to permit the adoption of Respondent's exception. Adoption of Respondent's exception would also require that the Department reweigh the evidence. The Department cannot reweigh the evidence. The weight given to the evidence is the province of the Administrative Law Judge and cannot be disturbed by the agency unless the finding is not supported by competent substantial evidence. Brogan v. Carter, (Fla. 1st DCA 1996). Accordingly, Respondent's exception is rejected. 2. Respondent's second exception is that “the record does not support a finding that the customers owed $318.00.” Paragraph 2, Respondent’s Exceptions to Findings of Fact. The Recommended order does not make a finding that any customers owed $318.00. For the purpose of this ruling on Respondent's second exception, it is presumed that the Respondent's exception relates to the Administrative Law Judge’s conclusion that the Respondents Mildred M. Vath and John L Vath owe Mr. Porro $318.00. There is competent substantial evidence in the record to support this finding of fact. Respondents John and Matilda Vath initially took $2,804 from Mr. Porro. (Hearing Transcript, page 22, lines 2 through 11). Respondents made a partial return of the money to Mr. Porro in two payments in the amount of $1,994 and $492. (Hearing Transcript, page 24, line 13 through page 27, line 12). Consistent with the Administrative Law Judge’s finding of fact that money retained by the Respondents for improperly documented expenses are due to Mr. Porro, which finding cannot be reweighed here, the outstanding amount owed by the Respondent's to Mr. Porro is $318. To grant the Respondent's exception, the Department would have to improperly reject findings of fact that are based on competent substantial evidence and reweigh the evidence. Accordingly, Respondent’s second exception is rejected. 3. Respondent's third exception is that the only evidence recording the expenses was the testimony of the Respondents. This exception is not made to any specific finding of fact in the Recommended Order. For the purpose of ruling on this exception it is presumed that Respondent's exception pertains to the finding of fact in paragraph 33 of the Recommended Order that the “improperly documented” expenses are due to Mr. Porro. This exception is an attempt to reargue the facts of the case and requires that the Department improperly reweigh the evidence and reject findings of fact made by the Administrative Law Judge. To reach his conclusion in paragraph 33, the Administrative Law Judge necessarily rejected the testimony of the Respondents on this issue. Because the Respondent's arguments would require that the Department improperly reweigh the evidence, this exception is rejected. 4. Respondent's fourth exception is that there is no evidence showing which of the Respondents was in direct control of the office staff. Respondents then proceed to argue it was the office staff that was responsible for the violations. There is no finding of fact in the Recommended Order that one of the Respondents was in direct control of the office staff. Moreover, as discussed above in the ruling on Respondent's first exception, the lack of control by the Respondents over their office staff, if believed, would not exculpate the Respondents but would aggravate the violations found herein. Accordingly, Respondent's fourth exception is rejected. 5. Respondent's fifth exception is that there is no evidence of willfulness for any of the alleged violations. This is a repeat of the Respondent's first exception. Having already rejected that exception, Respondent's fifth exception is also rejected. 6. Respondent's sixth exception contends that there is insufficient evidence to show a willful deprivation of money. This is another repeat of the Respondent's first and fifth exceptions. Having already rejected those exceptions, Respondent's fifth exception is also rejected. 7. Respondent's seventh exception is that the record does not support a finding that the indemnitor paid the entire bail bond. Respondent's then proceed to argue that the indemnitor failed to pay $89.00 of the premium. Respondent's exception is not directed to any particular finding of fact in the recommended order. It is also not clear to which specific finding of fact this exception could be attributed. There is no specific finding of fact made in the Recommended Order that the indemnitor “paid the entire premium.” Nor do the Respondents argue or explain the relevance of this factual argument to any factual finding in the Recommended Order. Accordingly, Respondent’s seventh exception is rejected. 8. Respondent's eighth exception reads as follows: “The evidence fails to show a substantial woeful [sic] violation of the Insurance Code, or the laws of the State of Florida, or the Law Administrative Code [sic].” For the purpose of ruling on this exception it is presumed that it was Respondent's intent to refer to the finding of willful violations of the Insurance Code in paragraph 28 of the Recommended Order. This is a restatement of the Respondent's first, fifth, and sixth, exceptions. Having already rejected those exceptions, Respondent's eighth exception is also rejected for improperly requiring that the Department reweigh the evidence. Upon careful consideration of the record, the submissions of the parties, and being otherwise fully advised in the premises, it is ORDERED: 1. The Findings of Fact of the Administrative Law Judge are adopted in full as the Department's Findings of Fact. 2. The Conclusions of Law of the Administrative Law Judge adopted in full as the Department's Conclusions of Law. 3. That the Administrative Law Judge 's recommendation that a Final Order be entered suspending for three (3) months the licenses and eligibility for licensure of Matilda M. Vath as an insurance agent, and requiring the refunding of $318.00 to Augustavo Porro, is approved and accepted as being the appropriate disposition. ACCORDINGLY, Matilda M. Vath’s limited surety agent license is suspended for a period of three (3) months. The suspension shall be effective from the date of entry of this Final Order. Matilda M. Vath is hereby also ordered to remit $318.00 to Augustavo Porro, which sum constitutes the outstanding amount of cash collateral that Matilda M. Vath and John L. Vath, who is the respondent in the related case no. 40065-01-AG, owe to Mr. Porro. Pursuant to Section 648.50, Florida Statutes, the suspension of Respondent's licenses and eligibility for licensure is applicable to all licenses and eligibility held by Respondent under the Florida Insurance Code. Pursuant to Sections 648.49(3) and 648.50(3), Florida Statutes, the Respondent shall not engage in or attempt or profess to engage in any transaction or business for which a license or appointment is required under the Insurance Code or directly or indirectly own, control or be employed in any manner by a bail bond agent or agency during the period of suspension. Pursuant to Section 648.49(1), Florida Statutes, Respondent's licensure shall not be reinstated except upon request for such reinstatement, and the Respondent shall not engage in the transaction of insurance until his licensure is reinstated. The Department shall not grant reinstatement if it finds that the circumstance or circumstances for which Respondent's licenses were suspended still exist or are likely to recur.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following Findings of Fact. The Petitioner, Linda D. Griffin, filed a written application for licensure as a real estate salesman in July of 1986. The application was signed by Petitioner on July 10, 1986, and was received by the Florida Real Estate Commission on July 11, 1986. The application form includes an affidavit which, among other things, includes a sworn statement that the answers to the questions on the application are true, correct and complete. The first part of question 6 on the application form reads as follows: "Have you even been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" The Petitioner truthfully and correctly answered this question, "Yes." The remainder or question 6 includes the following instructions to the applicant: "If you answered yes, please state the details including dates and outcome in full. (Use separate sheet if necessary.)" To this portion of question 6 Petitioner answered only, "Worthless bank checks - 1976-1985." Petitioner did not attach a separate sheet with any additional information, nor was additional information in response to this part of question 6 contained elsewhere on the application form. On each of the following dates, the Petitioner was arrested for the crime of issuing checks without sufficient funds: January 17, 1976, July 8, 1982, and August 19, 1983. The disposition of those three arrests is not clear on the record of this case. Specifically, there is no proof that the Petitioner was "convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere" with regard to any of the three previously mentioned arrests. On each of the following dates, the Petitioner was arrested for issuing checks without sufficient funds: May 31, 1984, December 12, 1984, and January 15, 1985. Following each of these arrests, the Petitioner was convicted of the crime of issuing checks without sufficient funds. The convictions were on the following dates: December 13, 1984, January 3, 1985, and April 16, 1985. On June 13, 1984, the Petitioner was arrested for disorderly conduct and criminal mischief. On the same day she was arrested on this charge, the charges were dismissed. On March 6, 1985, the Petitioner was arrested for welfare fraud. On June 5, 1985, she was convicted of welfare fraud. This last-mentioned conviction involved a sum of money of approximately $200. That conviction was based on allegations that the Petitioner had misrepresented the number of people living in her household at the time of applying for energy assistance. Petitioner explained that the application she submitted was correct at the time it was submitted, but shortly thereafter when one of the residents moved to another household, she did not amend the application to reflect the change. As a result of this failure to correct the application, the Petitioner received approximately $200 more welfare assistance than she was entitled to receive. The Petitioner has made restitution on all of the checks which lead to her arrests and/or convictions. The Petitioner's arrest in 1976 occurred in the context of a dispute regarding entitlement to possession of a home in which the Petitioner was residing at that time. Although the Petitioner was not able to clearly explain all of the circumstances, it appears likely that the issuance of the check which lead to the 1976 arrest was more likely the result of a mistake than the result of an intent to unlawfully obtain the property of another. The arrests which took place from 1982 through 1985 occurred during a period of time when there was a great deal of stress in the Petitioners life. During that period of time she was going through a divorce and her husband was experiencing serious difficulties relating to alcohol which, among other things, resulted in the Petitioner receiving very little support money from her husband with which to take care of herself and her three children. Since 1985 those situations have greatly improved. The Petitioner's husband has successfully completed an extensive rehabilitation program and, although they are still separated, he is now working steadily and is providing the petitioner with regular support. The worthless checks written by Petitioner during the Period during 1982 through 1985 were written for such things as clothing and groceries. The Petitioner presently enjoys a reputation in her community as an honest and dependable Person.
Recommendation For all of the foregoing reasons it is recommended that the Florida Real Estate Commission issue a Final Order in this case concluding the Petitioner's application of licensure as a real estate salesman be denied. DONE AND ENTERED this 3rd day of April, 1987, in Tallahassee, Florida. M. M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1987. COPIES FURNISHED: Ms. Linda D. Griffin Post Office Box 1752 Lake City, Florida 32056 Lawrence S. Gendzier, Esquire Assistant Attorney General Suite 212, 400 W. Robinson Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission Suite 212, 400 W. Robinson Orlando, Florida 32801 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
