03-001834PL Department Of Financial Services vs. Karen Marie Maldonado Status: Closed Recommended Order on Wednesday, August 27, 2003.

Summary: Five months` suspension for licensed customer representative who pleaded no contest to 9 felonies involving crimes of moral turpitude and who failed to notify Department within 30 days of entry of plea.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1834PL

)

KAREN MARIE MALDONADO, )

)

Respondent. )

______________________________)

RECOMMENDED OR DER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Fort

Pierce, Florida, on August 4, 2003.

APPEARANCES

For Petitioner: R. Terry Butler, Senior Attorney

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Karen Marie Maldonado, pro se

701 Southwe st Ravenswood West

Port St. Lucie, Florida 34983

STATEMENT OF THE ISSUES

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 co unts 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 p ermit

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 issu e 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.

P RELIMINARY STATEMENT

By Administrative Complaint filed July 26, 2002, Petitioner

alleged that Petitioner was at all material times licensed as a

customer representative (4 - 40) insurance agent. As amended at

the hearing, the Administrative Complaint alleg es that, on

February 21, 2001, Respondent pleaded nolo contendere to three

counts of uttering a forged instrument, three counts of forgery,

and three counts of third - degree grand theft, for which the

court withheld adjudication and placed Respondent on two years'

probation.

Count I of the Administrative Complaint alleges that

Respondent thus demonstrated a lack of fitness or

trustworthiness to engage in the business of insurance, in

violation of Section 626.611(7), Florida Statutes; willfully

violated an y provision of this Code, in violation of Section

626.611(13), Florida Statutes; was found guilty or pleaded

guilty or nolo contendere to a felony involving moral turpitude,

in violation of Section 626.611(14), Florida Statutes; was

guilty of an act or omi ssion for which Petitioner could have

refused to issue a license, pursuant to Section 626.621(1),

Florida Statutes; and was found guilty of pleaded guilty or nolo

contendere to a felony, in violation of Section 626.621(8),

Florida Statutes.

Count II of th e Administrative Complaint alleges that

Respondent failed to notify Petitioner of her plea of nolo

contendere within 30 days. Count II alleges that Respondent

thus failed to inform Petitioner in writing, within 30 days, of

pleading guilty or nolo contende re to a felony, in violation of

Section 626.621(11), Florida Statutes.

At the hearing, Petitioner called no witnesses and offered

into evidence five exhibits: Petitioner Exhibits 1 - 5.

Respondent called two witnesses and offered into evidence no

exhibits . All exhibits were admitted except Petitioner Exhibit

2, which was proferred.

The court reporter filed the transcript on August 14, 2003.

Petitioner filed a proposed recommended order on August 22,

2003.

FINDINGS OF FACT

1. At all material times, Respon dent has been licensed as

a Customer Representative.

2. 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 co unts 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.

3. 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 Respon dent to pay court

costs.

4. 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 unaw are of her

obligation to inform Petitioner of her entry of a no contest

plea to these nine charges.

5. 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.

CONCLUSIONS OF LAW

6. The Div ision of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

7. Section 626.611 provi des in relevant part:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, title agency, adjuster,

customer representative, service

representative, or managing gen eral agent,

and it shall suspend or revoke the

eligibility to hold a license or appointment

of any such person, if it finds that as to

the applicant, licensee, or appointee any

one or more of the following applicable

grounds exist:

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

(13) Willful failure to comply with, or

willful violation of, any proper order or

rule of the department or willful violation

of any provision of this code.

(14) Having been found guilty of or having

pleaded guilty or nolo contendere to a felony

or a crime punishable by imprisonment of 1

year or more under the law of the United

States of America or of any state thereof or

under the law of any other country which

involves moral turp itude, without regard to

whether a judgment of conviction has been

entered by the court having jurisdiction of

such cases.

8. Section 626.621 provides in relevant part:

(1) Any cause for which issuance of the

license or appointment could have been

refuse d had it then existed and been known

to the department.

(8) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by imprisonment

of 1 year or more under the law of the

United States of America or of an y state

thereof or under the law of any other

country, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such cases.

(11) Failure to inform the department in

writing within 30 days after pleading guil ty

or nolo contendere to, or being convicted or

found guilty of, any felony or a crime

punishable by imprisonment of 1 year or more

under the law of the United States or of any

state thereof, or under the law of any other

country without regard to whether a judgment

of conviction has been entered by the court

having jurisdiction of the case.

9. The crimes to which Respondent pleaded no contest are

all felonies. Rule 4 - 211.041(3) defines a crime of moral

turpitude as any felony identified in Rule 4 - 211.042( 21). Rule

4 - 211.042(21) defines the following felonies as crimes of moral

turpitude:

(m) Altering public documents.

(n) Forgery.

(s) Grand theft.

(qq) Uttering a forged check.

10. Petitioner must prove the material allegations by

clear and convincin g evidence Department of Banking and Finance

v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla. 1996);

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

11. Petitioner has proved that Respondent pleaded no

contest to nine felonies that constitute cr imes of moral

turpitude. Petitioner has thus proved violations of Section

626.611(14).

12. Rule 4 - 231.150(1)(c) provides the penalties for a

licensee who has pleaded no contest to a felony involving moral

turpitude, but the court has withheld adjudication. T he

penalties are as follows:

1. If the conduct directly relates to

activities involving an insurance license,

the penalty shall be a 24 month suspension.

2. If the conduct indirectly involves

dishonesty or breach of trust such as

mishandling or misappro priation of money,

the penalty shall be a 12 month suspension.

3. If the conduct is not related to

insurance license, the penalty shall be a 6

month suspension.

13. As Petitioner argues in its proposed recommended order

the appropriate penalty for the under lying conduct -- i.e., the

crimes of moral turpitude -- is 12 months' suspension.

14. Petitioner has proved that Respondent failed to inform

Petitioner of the no contest plea within 30 days, as required by

Section 626.621(11). Rule 4 - 231.090(11) provides that the

penalty for this offense is three months' suspension, which is

the penalty that Petitioner seeks in its proposed recommended

order.

15. Rule 4 - 231.160 lists various aggravating and

mitigating factors that may influence the penalty. Among the

mitigating facto rs are the modest sum involved, the completion

of restitution, and the completion of probation. Under the

circumstances, a better penalty would be five months'

suspension.

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 - 03 00

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

NOTICE OF RIGHT T O SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.