04-003012PL Department Of Financial Services vs. Robert Wesley Trueblood Status: Closed Recommended Order on Tuesday, December 7, 2004.

Summary: Respondent pled guilty to two, third-degree felonies not related to the insurance business and not involving moral turpitude. He failed to timely advise Petitioner of these pleas. Recommend a nine-month suspension of his license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3012PL

)

ROBERT WESLEY TRUEBLOOD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursu ant to notice, a hearing was conducted in this case on

November 2, 2004, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly -

designated Administrative Law Judge of the Division of

Administrative Hea rings (DOAH).

APPEARANCES

For Petitioner: Philip M. Payne, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399 - 0333

For Respondent: Robert Wesley Trueblood, pro se

Post Office Box 2023

Hobe Sound, Florida 33475

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Amen ded Administrative Complaint issued against him, as modified

at hearing, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On July 21, 2004, Petitioner issued a four - count Amended

Administrative Complaint against Respondent notifying him that

it "intend[ed] to enter an Order suspending or revoking [his]

licenses and appointments as an insurance agent or impose such

penalties as may be provided under [the law]." Count I of the

Amended Administrative Complaint alleged that Respondent had

vi olated Sections 626.611(7) and 626.621(8), Florida Statutes,

based on his having pled guilty on February 20, 2002, in Orange

County Circuit Court to having violated Section 517.07, Florida

Statutes. Count II of the Amended Administrative Complaint

alleged that Respondent had further violated Sections 626.611(7)

and 626.621(8), Florida Statutes, based on his having pled

guilty on February 20, 2002, in Orange County Circuit Court to

having violated Section 517.12(1), Florida Statutes. Count III

of the Amend ed Administrative Complaint alleged that Respondent

had violated Section 626.621(11), Florida Statutes, by not

timely informing Petitioner of the guilty pleas referenced in

the first two counts of the Amended Administrative Complaint.

Count IV of the Amen ded Administrative Complaint alleged that

Respondent had violated "Section 626.621(2), Florida Statutes,

by way of Section 626.551, Florida Statutes, [as a result of

having] fail[ed] to timely notify [Petitioner] of a change in

[his] residency address." O n August 19, 2004, Respondent

"request[ed] a hearing [on the matter] pursuant to Section

120.57(1), Florida Statutes, to be held before the Division of

Administrative Hearings." On August 25, 2004, the matter was

referred to DOAH.

As noted above, the fina l hearing in this case was held on

November 2, 2004. Three witnesses testified at the hearing:

Barry Lanier and Hazel Muhammad (for Petitioner), and Respondent

(on his own behalf). In addition to these three witnesses'

testimony, six exhibits (Petitione r's Exhibits 1, 2, 3A, 3B, 4,

and 5) were offered and received into evidence.

Following the close of the evidence, but before the

conclusion of the hearing, the undersigned established a

deadline (December 3, 2004) for the filing of proposed

recommended or ders. Thereafter, counsel for Petitioner

announced on the record that Petitioner was voluntarily

dismissing Count IV of the Amended Administrative Complaint.

The hearing Transcript (consisting of one volume) was filed

with DOAH on November 18, 2004.

Peti tioner filed its Proposed Recommended Order on

December 2, 2004. To date, Respondent has not filed any post -

hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, including the parties' prehearing stipulat ion filed

October 21, 2004, the following findings of fact are made:

1. Respondent is now, and has been since October 17, 1988,

licensed as an insurance representative in the State of Florida

holding 02 - 16, 02 - 18, and 02 - 40 licenses. His licensure

identi fication number is A268617.

2. In 2001, criminal charges were filed against Respondent

in Orange County Circuit Court Case No. CR - 01 - 2309/B.

3. On or about February 20, 2002, Respondent submitted, in

Orange County Circuit Court Case No. CR - 01 - 2309/B, a v erified

Petition to Enter Plea of Guilty, which read as follows:

1. My name is Robert Trueblood and I

acknowledge that I am the Defendant charged

in the above - styled criminal case[].

2. I am represented by a lawyer, Arthur L.

Wallace, III.

3. I wish to withdraw my plea of not guilty

and plead guilty to: Count 2 - Sale of

Unregistered Security and Count 3 - Sale of

Security by Unregistered Agent.

4. I understand that each of these counts

is a third degree felony and each is

punishable by up to five (5) years in the

Department of Corrections and a $5,000.00

fine.

5. I have told my lawyer all the facts and

circumstances about the charges against me.

I believe that my lawyer is fully informed

on all such matters. My lawyer has

counseled and advised me on the nature of

each charge; on any and all lesser included

charges; on all possible defenses that I

might have in this cause; and all the

penalties that might be imposed if

convicted.[ 1 ]

6. I understand that I may plead not guilty

to any offense cha rged against me. If I

choose to plead not guilty, the Constitution

guarantees me the right to maintain that

plea and (a) the right to a speedy and

public trial by jury; (b) the right to see,

hear and face in open Court all witnesses

called to testify agai nst me and to cross -

examine said witnesses; (c) the right to use

the power and process of the Court to compel

the production of any evidence, including

the attendance of any witnesses in my favor;

(d) the right to have the assistance of a

lawyer at all sta ges of the proceedings and

to have one appointed for me if necessary;

and (e) also the right to take the witness

stand at my sole option; and if I do not

take the witness stand I understand the

jury, at my request, will be told that this

may not be held ag ainst me.

7. I also understand that by pleading

guilty and admitting the truth of the

charges against me, I am waiving all of the

rights referred to in the above paragraph

and the Court may impose the same punishment

as if I had ple[]d not guilty, stood trial

and been convicted. I know that if I plead

guilty there will be no further trial of any

kind, which means that by pleading guilty I

waive my right to trial.

8. I understand that some of the charges

filed against me in this case may have

occurred i n whole or in part in Florida

Counties other than Orange. However, I wish

to resolve, in Orange County, all the

charges filed in case number CR 01 - 2309 and

do affirmatively waive my right to venue in

other counties where the crimes may have

occurred.

9. I am 55 years of age. I have gone to

school up to and including 5 y[ea]rs [of]

college. I am not under the influence of

any alcoholic beverage, drug or medicine at

the time I sign this plea agreement. My

physical and mental health is presently

satisfac tory.

10. No one has made any promise, assurance

or guarantee to me that I would receive any

consideration in exchange for pleading

guilty other than as set out in this plea

agreement.

11. I declare that no one has subjected me

to any force, duress, th reats, intimidation

or pressure to compel or induce me to enter

a plea of guilty.

12. I am entering this plea with the

understanding that I may serve every day of

the sentence I am agreeing to in this plea

agreement. Although I may have received

advice or opinions as to the potential for

some type of early release, I hereby

acknowledge under oath that I have not

relied upon those opinions or that advice as

an inducement to enter this plea.

13. I believe that my lawyer has done all

that a competent atto rney could to counsel

and assist me. He has answered all my

questions about this case to my satisfaction

and I AM SATISFIED WITH THE ADVICE AND HELP

HE HAS GIVEN ME.

14. I understand that if I am not a United

States citizen, this criminal proceeding

cou ld cause me to be deported to the country

of my origin.

15. I understand that if I fail to pay any

fines or costs as ordered by the Court,

there will be a lien placed against me.

16. I understand that I waive my right to

appeal any rulings of the Court previously

made in this case except as specifically

stated herein.

17. I understand that I have the right to

appeal the judgment and sentence of the

Court within thirty (30) days from the date

of sentence. I understand that any appeal

must be in writin g. I understand that if I

wish to take an appeal and cannot afford an

attorney to help in my appeal, the Court

will appoint an attorney to represent me for

that purpose.

18. I request the Court to accept my plea,

knowing that upon it being accepted by t he

Court that nothing will remain to be done

except for the Court to enter its judgment

and sentence.

19. I offer my plea freely and voluntarily

and of my own accord and with full

understanding of all matters set forth in

the Information and in this Peti tion, the

Certificate of my lawyer and Plea Agreement

which are contained herein.

20. Though I may have been assisted by my

lawyer, I certify that the statement and

representations herein above made are my own

and have not been suggested directly or

indi rectly by him or anyone else, and that

the decision to plead guilty was made by me.

I further represent that my attorney has

advised me of considerations bearing on the

choice of which plea to enter and the pros

and cons of such plea, the likely results

t hereof as well as any possible alternative

which may be open to me. I represent to the

Court that the plea bargain attached hereto

was negotiated by my attorney with my full

and complete consent thereto and that the

decision to plead guilty was made by me . I

fully concur in the efforts of my attorney

and agree to the terms of the bargained

plea.

4. The Plea Agreement between Respondent and the

prosecutor (which was referenced in Respondent's Petition to

Enter Plea of Guilty) read as follows:

The Defenda nt, and the State, pursuant to

the provisions of Fla. R. Crim. P. 3.171,

agree and stipulate to recommend to the

Court the following resolution of the above -

styled case:

1. Defendant agrees to plead guilty as

charged to Count 2 - Sale of Unregistered

Sec urity and Count 3 - Sale of Security by

Unregistered Agent.

2. The State will stand silent as to the

issue of adjudication.

3. The Defendant shall be sentenced to five

(5) years of supervised probation with all

standard conditions, as well as the

follo wing special conditions:

a) The Defendant shall testify truthfully

when requested by the State, without the

necessity of subpoena, in reference to any

and all matters related to the facts and

circumstances surrounding the Defendant's

charges in this case .

b) The Defendant shall pay restitution in

an amount to be determined. The Defendant

agrees the amount of restitution owed is not

limited to the transactions to which he is

entering this plea.

c) Defendant shall pay court costs as

directed by the Cou rt.

d) Defendant shall be required to pay

$3,5000.00 for costs of prosecution to the

Office of Statewide Prosecution, Department

of Legal Affairs for the State of Florida.

e) The Defendant shall pay $500.00 to the

Florida Department of Law Enforcement and

$500.00 to the Office of Comptroller,

Department of Banking and Finance for costs

of investigation involved in this case.

f) The Defendant shall have no contact,

directly or indirectly, with any of the

witnesses in this case.

[4]. If the Defendant violates any law

while awaiting sentencing or if he fails to

appear for sentencing as ordered by the

Court, the State shall not be bound by this

agreement and may recommend any lawful

sentence and the Court may impose any

sentence permissible under the law . The

Defendant shall not be entitled to withdraw

his plea of guilty in this case.

[5]. The State agrees to nolle prosequi

Count 4 - Sale of Unregistered Security,

Count 5 - Sale of Security by Unregistered

Agent, Count 6 - Sale of Unregistered

Security , and Count 7 - Sale of Security by

Unregistered Agent.

[6]. If the sentence agreed upon in this

plea agreement is a departure from the

sentencing guidelines, both the State of

Florida and the Defendant agree not to

appeal this sentence.

[7]. Should th e Defendant violate his

community control or probation, he

affirmatively agrees that he shall be

sentenced pursuant to the sentencing

guidelines.

[8]. The Defendant affirmatively agrees not

to request that the Court impose a sentence

lower than the sente nce outlined above.

[9]. Both the State and the Defendant

understand that the trial judge has the

ultimate responsibility for the sentence the

defendant actually receives and that the

recommendations made above are not binding

on the trial judge unless a dopted thereby.

The Defendant shall not be entitled to

withdraw his pleas of guilty in the event

that the trial judge imposes a sentence

different from that recommended above.

5. On February 20, 2002, after Respondent entered his

guilty pleas in Orange County Circuit Court Case No. CR - 01 -

2309/B to Count 2 (alleging the "Sale of Unregistered Security,"

in violation of Section 517.07, Florida Statutes) and Count 3

(alleging the "Sale of Security by Unregistered Agent," in

violation of Section 517.12(1), Fl orida Statutes), the court

accepted the pleas, withheld adjudication, and placed Respondent

on two concurrent five - year terms of probation, with the special

condition that he "serve 1 Day[] in the Orange County Jail, with

1 Day[]'s credit for time served." Other special conditions,

including those described in the Plea Agreement set out above,

were also imposed. 2

6. Respondent failed to notify Petitioner in writing

within 30 days after entering his guilty pleas in Orange County

Circuit Court Case No. CR - 0 1 - 2309/B that he had entered the

pleas.

7. Respondent has previously been disciplined by

Petitioner's predecessor, the Department of Insurance (DOI).

8. By Consent Order issued November 1, 2000, in DOI Case

No. 31036 - 00 - AG, Respondent was suspended for a period of three

months. The Consent Order approved the parties' Settlement

Stipulation for Consent Order, which provided, in pertinent

part, as follows:

* * *

3. The Department has caused to be made an

investigation of the Respondent and other

individuals involved in the marketing and

promotion of Legends Sports, Inc. As a

result of that investigation, the Department

alleges that the Respondent induced

individuals to invest in Legends Sports,

Inc. and represented that the investment was

guaranteed by a surety insurer. However,

the investment was not a good investment,

the purported surety insurer did not exist

or was not authorized to conduct business in

this state, and the investment resulted in

substantial losses to indi vidual investors.

4. The investigation resulted in a multi -

count criminal information (hereinafter

referred to as the "criminal actions") being

filed against Respondent and other Legends

Sports agents in the Seminole County Circuit

Court in Sanford, Flor ida, Case No. 98 -

4569CFW. Specifically, Respondent was

charged with the following felonies: sale

of unregistered securities, sale of

securities by an unregistered dealer and

unlawful transaction of insurance.

Respondent has entered or will enter a plea

of guilty to lesser included charges which

are first degree misdemeanors.

5. As a result of the plea, the Court in

the criminal action, among other things,

placed the Respondent on probation. As a

condition of probation, the Court ordered

the Respondent to pay restitution to the

individuals who invested in Legends Sports

through the Respondent and suffered

financial losses as a direct consequence of

such investments. The restitution amount

represents the commissions received by the

Respondent (hereinaft er referred to as the

"restitution order in the criminal action").

The Court in the criminal action also

ordered that a criminal restitution

judgment, that is not dischargeable in

bankruptcy, be entered for the full amount

of the promissory notes sold by the

Respondent, unless a judgment has already

been entered in that amount in favor of the

Receiver for Legends Sports.

6. Respondent denies knowingly

misrepresenting the Legends Sports

investment.

* * *

13. This Settlement S tipulation for Consent

Order is subject to the approval of the

Insurance Commissioner. Upon his approval,

and without further notice, the Insurance

Commissioner may issue a Consent Order

providing for the following:

(a) Incorporation by reference of the terms

and conditions of this Settlement

Stipulation For Consent Order.

(b) Respondent's licensure and eligibility

for licensure as an insurance agent within

the state are SUSPENDED for a period of

three (3) months pursuant to section

626.641(1), Florid a Statutes. The

suspension shall take effect on 11/1/2000.

* * *

9. Approximately a year earlier, by Consent Order issued

July 12, 1999, in DOI Case No. 99 - CE58350, Respondent was fined

$250.00 for failure to comply with cont inuing education

requirements.

10. Respondent's health has deteriorated in recent years.

He has "been in the hospital several times with . . . heart

[problems]."

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the subject matter of this

proceeding a nd of the parties hereto pursuant to Chapter 120,

Florida Statutes.

12. " Chapters 624 - 632, 634, 635, 636, 641, 642, 648, and

651 constitute the 'Florida Insurance Code.'" § 624.01, Fla.

Stat.

13. It is Petitioner's responsibility to "enforce the

provis ions of this code." § 624.307, Fla. Stat.

14. Among its duties is to license and discipline

insurance agents.

15. Petitioner is authorized to suspend or revoke agents'

licenses, pursuant to Section 626.611 and Section 626.621,

Florida Statutes; to impos e fines of up to $500.00 or, in cases

where there are "willful violation[s] or willful misconduct, " up

to $3,500, pursuant to Section 626.681, Florida Statutes; to

place licensees on probation for up to two years, pursuant to

Section 626.691, Florida Statu tes 3 ; and to order licensees to pay

restitution, pursuant to Section 626.692, Florida Statutes.

16. Petitioner may take disciplinary action against a

licensee only after the licensee has been given reasonable

written notice of the charges and an adequat e opportunity to

request a proceeding pursuant to Sections 120.569 and 120.57,

Florida Statutes.

17. An evidentiary hearing must be held if requested by

the licensee when there are disputed issues of material fact.

§§ 120.569(1) and 120.57(1), Fla. Stat.

18. At the hearing, Petitioner bears the burden of proving

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the charging instrument.

19. Proof greater than a mere preponderance of the

evidence must be present ed by Petitioner to meet its burden of

proof. Clear and convincing evidence of the licensee's guilt is

required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So.

2d 292, 294 (Fla. 1987); Pou v. Department of Insurance and

Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and §

120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon

a preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute . . . .").

20. Clear and convincing evidence "requires more proof

than a 'preponderance of the evidence' but less than 'beyond and

to the exclusion of a reasonable do ubt.'" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

Id. For proof to be considered "'clear and convincing' . . .

the evidence must be found to be credible; the facts to which

the witnesses testify must be distinctl y remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it produces in the mind of the trier

of fact a firm belief or conviction, without he sitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). "Although this standard of proof may be met wh ere the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

21. In determining whether Petitioner has met its burden

of p roof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits an

agency from taking penal action against a licensee based on

matters not specificall y alleged in the charging instrument,

unless those matters have been tried by consent. See Shore

Village Property Owners' Association, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); Hamilton v. Department of Busin ess and Professional

Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999); Cottrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996); and Delk v. Depart ment of

Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992).

22. The charging instrument in the instant case, the

Amended Administrative Complaint, as modified at hearing,

alleges two violations each of Sections 626.611(7) and

626.621(8), F lorida Statutes, one based on Respondent's having

pled guilty in Orange County Circuit Court Case No. CR - 01 - 2309/B

to having violated Section 517.07, Florida Statutes (Count I of

the Amended Administrative Complaint) and the other based on his

having pled guilty in that same criminal case to having violated

Section 517.12(1), Florida Statutes (Count II of the Amended

Administrative Complaint). The Amended Administrative

Complaint, as modified at hearing, further alleges that

Respondent violated Section 626 .621(11), Florida Statutes, by

not having timely informed Petitioner of the entry of these

pleas (Count III of the Amended Administrative Complaint).

23. Section 626.611(7), Florida Statutes, provides as

follows:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, title agency, adjuster,

customer representative, service

representative, or managing general agent,

and it shall suspend or revoke the

eligibility to hold a license or appointment

of any such person, if it finds that as to

the applicant, licensee, or appointee any

one or more of the following applicable

grounds exist:

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

* * *

24. Section 626.621(8) and (11), Florida Statutes,

provides as follows:

The department may, in its discretion, deny

an application for, suspend, revoke, or

refuse to renew or cont inue the license or

appointment of any applicant, agent,

adjuster, customer representative, service

representative, or managing general agent,

and it may suspend or revoke the eligibility

to hold a license or appointment of any such

person, if it finds tha t as to the

applicant, licensee, or appointee any one or

more of the following applicable grounds

exist under circumstances for which such

denial, suspension, revocation, or refusal

is not mandatory under s. 626.611:

* * *

(8) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by imprisonment

of 1 year or more under the law of the

United States of America or of any state

thereof or under the law of any other

country, withou t 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 guilty

or nolo contendere to, o r 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 ha s been entered by the court

having jurisdiction of the case.

25. It is undisputed, and the record evidence clearly and

convincingly establishes, that, as alleged in the Amended

Administrative Compliant, on February 20, 2002, in Orange County

Circuit Cour t Case No. CR 01 - 2309, Respondent pled guilty to one

count of having violated Section 517.07, Florida Statutes, and

one count of having violated Section 517.12(1), Florida

Statutes.

26. Section 517.07, Florida Statutes, provides as follows:

(1) It is unl awful and a violation of this

chapter for any person to sell or offer to

sell a security within this state unless the

security is exempt under s. 517.051, is sold

in a transaction exempt under s. 517.061, is

a federal covered security, or is registered

pur suant to this chapter.

(2) No securities that are required to be

registered under this chapter shall be sold

or offered for sale within this state unless

such securities have been registered

pursuant to this chapter and unless prior to

each sale the purc haser is furnished with a

prospectus meeting the requirements of rules

adopted by the commission.

(3) The office shall issue a permit when

registration has been granted by the office.

A permit to sell securities is effective for

1 year from the date it was granted.

Registration of securities shall be deemed

to include the registration of rights to

subscribe to such securities if the

application under s. 517.081 or s. 17.082

for registration of such securities includes

a statement that such rights are to be

issued.

(4) A record of the registration of

securities shall be kept by the office, in

which register of securities shall also be

recorded any orders entered by the office

with respect to such securities. Such

register, and all information with resp ect

to the securities registered therein, shall

be open to public inspection.

(5) Notwithstanding any other provision of

this section, offers of securities required

to be registered by this section may be made

in this state before the registration of

suc h securities if the offers are made in

conformity with rules adopted by the

commission.

27. Section 517.12(1), Florida Statutes, provides as

follows:

(1) No dealer, associated person, or issuer

of securities shall sell or offer for sale

any securities i n or from offices in this

state, or sell securities to persons in this

state from offices outside this state, by

mail or otherwise, unless the person has

been registered with the office pursuant to

the provisions of this section. The office

shall not regi ster any person as an

associated person of a dealer unless the

dealer with which the applicant seeks

registration is lawfully registered with the

office pursuant to this chapter.

28. "Neither Section 517.07(1) nor Section 517.12(1),

Florida Statutes, req uires guilty knowledge or 'scienter'

associated with securities fraud cases." Department of Banking

and Finance v. Denton , Case No. 02 - 1284 , 2002 WL 31668868 *6

(Fla. DOAH November 20, 2002)(Recommended Order); see also State

v. Houghtaling , 181 So. 2d 63 6 (Fla. 1966); Huff v. State , 646

So. 2d 742, 743 (Fla. 2d DCA 1994); Santacroce v. Department of

Banking and Finance, Division of Securities and Investor

Protection , 608 So. 2d 134, 136 (Fla. 4th DCA 1992); and Jones

v. Childers , 18 F.3d 899, 902 n.3 (11t h Cir. 1994). They thus

are not crimes involving moral turpitude. See In re Davis , 47

B.R. 599, 601 - 602 (Bankr. S.D. Fla. 1985).

29. Nonetheless, pursuant to Section 517.302, Florida

Statutes, violations of Section 517.07 and Section 517.12(1),

Florida Statutes, are third degree felonies.

30. Therefore, by pleading guilty to having committed

these crimes , Respondent violated Section 626.621(8), Florida

Statutes, as alleged in Counts I and II of the Amended

Administrative Complaint; however, his entry of these pleas does

not clearly and convincingly establish a " lack of fitness or

trustworthiness to engage in the business of insurance" on his

part, in violation of Section 626.611(7), Florida Statutes,

given that these crimes were securities violations not

" requir[ing] guilty knowledge or 'scienter' associated with

securities fraud cases."

31. The violation of Section 626.621(11), Florida

Statutes, alleged in Count III of the Amended Administrative

Complaint was established by the presentation of clear and

convincing evidence of Respondent's failure to notify Petitioner

in writing within 30 days that he had he had entered the

aforementioned guilty pleas in Orange County Circuit Court Case

No. CR - 01 - 2309/B.

32. To determine what disciplinary action should be taken

against Respondent for his two violations of Section 626.621(8),

Florida Statutes, and his violation of Section 626.621(11),

Florida Statutes , it is necessary to consult Petitioner's

"penalty guidelines" set forth in Florida Administrative Code

R ule Chapter 69B - 231, which impose restrictions and limitations

on the exercise of Petitioner's disciplinary authority . See

Parrot Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231, 1233 (Fla. 5th DCA 1999)("An

administrati ve agency is bound by its own rules . . . creat[ing]

guidelines for disciplinary penalties."); cf . State v. Jenkins ,

469 So. 2d 733, 734 (Fla. 1985)("[A]gency rules and regulations,

duly promulgated under the authority of law, have the effect of

law."); Bu ffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995)("An agency must comply with its own rules."); Decarion v.

Martinez , 537 So. 2d 1083, 1084 (Fla. 1st 1989)("Until amended

or abrogated, an agency must honor its rules."); and Williams v.

Department of Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA

1988)(agency is required to comply with its disciplinary

guidelines in taking disciplinary action against its employees).

33. Florida Administrative Code Rule 69B - 231.040 explains

how Petitioner goes ab out "[c]alculating [a] penalty" in a

disciplinary proceeding. It provides as follows:

(1) Penalty Per Count.

(a) The Department is authorized to find

that multiple grounds exist under Sections

626.611 and 626.621, F.S., for disciplinary

action against the licensee based upon a

single count in an administrative complaint

based upon a single act of misconduct by a

licensee. However, for the purpose of this

rule chapter, only the violation specifying

the highest stated penalty will be

considered for that count. The highest

stated penalty thus established for each

count is referred to as the "penalty per

count".

(b) The requirement for a single highest

stated penalty for each count in an

administrative complaint shall be applicable

regardless of the numb er or nature of the

violations established in a single count of

an administrative complaint.

(2) Total Penalty. Each penalty per count

shall be added together and the sum shall be

referred to as the "total penalty".

(3) Final Penalty. The final penal ty which

will be imposed against a licensee under

these rules shall be the total penalty, as

adjusted to take into consideration any

aggravating or mitigating factors, provided

however the Department shall convert the

total penalty to an administrative fin e and

probation in the absence of a violation of

Section 626.611, F.S., if warranted upon the

Department's consideration of the factors

set forth in rule subsection 69B - 231.160(1),

F.A.C.

34. Florida Administrative Code Rule 69B - 231.090 is

entitled, "Pen alties for Violation of Section 626.621." It

provides, in pertinent part, as follows:

If it is found that the licensee has

violated any of the following subsections of

Section 626.621, F.S., for which suspension

or revocation is discretionary, the

followi ng stated penalty shall apply:

* * *

(8) Section 626.621(8), F.S. -- see Rule

69B - 231.150, F.A.C.

* * *

(11) Section 626.621(11) -- suspension 3

months.

35. Florida Administrative Code Rule 69B - 231.150 provides,

in pertinent part, as follows:

(1) If it is found that a licensee has

violated . . . Section 626.621(8) . . ., the

following stated penalty shall apply:

* * *

(d) If the licensee is not convicted of,

but has been found guilty of or has pleaded

guilty or nolo contendere to, a felony or a

crime punishable by imprisonment of 1 year

or more under the laws of the United States

of America or of any state thereof or under

the law of any other country, which does not

involve moral turpitude and is not a crime

involving breach of trust or dishonesty, the

penalties are as follows:

* * *

3. If the conduct is not related to

insurance license, the penalty shall be a 3

month suspension.

* * *

36. In view of the foregoing provisions of Florida

Administrative Code Rules 69B - 231.090 and 69B - 231.150 , 4 the

"penalty per count" for each of the three remaining counts of

the Amended Administrative Complaint (Counts I through II I) is a

three - month suspension and the "total penalty" for all three

counts is a nine - month suspension.

37. The "aggravating/mitigating factors" that must be

considered to determine whether any "adjust[ment]" should be

made to this "total penalty" are se t forth in Florida

Administrative Code Rule 69B - 231.160, which provides as follows:

The Department shall consider the following

aggravating and mitigating factors and apply

them to the total penalty in reaching the

final penalty assessed against a licensee

under this rule chapter. After

consideration and application of these

factors, the Department shall, if warranted

by the Department's consideration of the

factors, either decrease or increase the

penalty to any penalty authorized by law.

(1) For penalt ies other than those assessed

under Rule 69B - 231.150, F.A.C.:

(a) Willfulness of licensee's conduct;

(b) Degree of actual injury to victim;

(c) Degree of potential injury to victim;

(d) Age or capacity of victim;

(e) Timely restitution;

(f) Mot ivation of agent;

(g) Financial gain or loss to agent;

(h) Cooperation with the Department;

(i) Vicarious or personal responsibility;

(j) Related criminal charge; disposition;

(k) Existence of secondary violations in

counts;

(l) Previous discip linary orders or prior

warning by the Department; and

(m) Other relevant factors.

(2) For penalties assessed under Rule 69B -

231.150, F.A.C., for violations of Sections

626.611(14) and 626.621(8), F. S.:

(a) Number of years that have passed since

crim inal proceeding;

(b) Age of licensee at time the crime was

committed;

(c) Whether licensee served time in jail;

(d) Whether or not licensee violated

criminal probation;

(e) Whether or not licensee is still on

criminal probation;

(f) Whether or no t licensee's actions or

behavior resulted in substantial injury to

victim;

(g) Whether or not restitution was, or is

being timely, paid;

(h) Whether or not licensee's civil rights

have been restored; and

(i) other relevant factors.

38. Examining th e evidentiary record in the instant case

in light of these "aggravating/mitigating factors," it does not

appear, from the sparse evidence addressing these factors, that

either aggravating or mitigating factors preponderate and that

either an increase or a decrease of the "total penalty" is

warranted. 5

39. Accordingly, the "final penalty" that Petitioner

should impose in the instant case is a nine - month suspension of

Respondent's licenses.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclu sions

of Law, it is hereby

RECOMMENDED that Petitioner issue a Final Order finding

Respondent guilty of twice violating Section 626.621(8), Florida

Statutes, as alleged in Counts I and II of the Amended

Administrative Complaint, and of violating Section 62 6.621(11),

Florida Statutes, as alleged in Count III of the Amended

Administrative Complaint, and suspending his licenses for nine

months for having committed these violations.

DONE AND ENTERED this 7th day of December, 2004, 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 7th day of December, 2004.

ENDNOTES

1 Neither Respondent's counsel , nor the trial court, was

required to make Respondent aware of any of the possible

collateral consequences of his plea, such as the suspension or

revocation of his insurance licenses. See Major v. State , 814 So.

2d 424, 426 (Fla. 2002); and Kratt v. Garv ey , 342 F.3d 475, 485

(6th Cir. 2003).

2 One of these other special conditions of probation required

Respondent to pay "victim restitution" in an amount to be

determined at a subsequent time. The evidentiary record is

silent as to how much "victim resti tution," if any, Respondent

was ultimately ordered to pay. (Nor, for that matter, does it

reveal what restitution payments, if any, Respondent has made.).

3 Petitioner may impose a fine or place a licensee on probation

"in lieu of" suspension or revocat ion of the licensee's license

" except on a second offense or when . . . suspension [or]

revocation . . . is mandatory."

4 In its Proposed Recommended Order, Petitioner contends that

Florida Administrative Code Rule 69B - 231.150(1) (c) 3, which

provides as follows, not Florida Administrative Code Rule 69B -

231.150(1) (d) 3, establishes the "stated penalty" for each of

Respondent's violations of Section 626.621(8), Florida Statutes:

If the licensee is not convicted of, but has

been found guilty of or has plead ed guilty

or nolo contendere to, a felony or a crime

punishable by imprisonment of 1 year or more

under the law of the United States of

America or of any state thereof or under the

law of any other country, which involves

moral turpitude or is a crime invo lving

breach of trust or dishonesty, the penalties

are as follows:

If the conduct is not related to insurance

license, the penalty shall be a 6 month

suspension.

The argument has been rejected because it is based on the

erroneous premise that the crimes to which Respondent pled

guilty " involve[] moral turpitude or are "crime[s] involving

breach of trust or dishonesty."

5 In coming to this conclusion, the undersigned has not

overlooked the argument Petitioner makes in its Proposed

Recommended Order in s upport of its position that "the

appropriate final penalty [in this case] is revocation of

Respondent's licensure and eligibility for licensure." The

undersigned recognizes, as Petitioner points out in its Proposed

Recommended Order: that "only some two and half years have

passed since Respondent's pleas of guilty to third degree

felonies" (although the undersigned would also note that it is

unclear exactly how long it has been since the actual commission

of these felonies); that it appears that these fel onies were not

the product of "youthful exuberance"; that "Respondent was

ordered to serve jail time" (but the undersigned would further

observe that it was for only one day, the same amount of time -

served credit the court granted Respondent); that "Respon dent

was placed on five years probation beginning February 20, 2002,

and therefore, would still be on probation" (assuming he has not

been granted early termination, an issue to which the

evidentiary record does not speak); that Respondent was "ordered

to make victim restitution" (in an amount, the undersigned would

add, not established by the evidentiary record); and that

"Petitioner previously suspended Respondent's licensure and

eligibility for licensure as a Florida insurance agent for a

period of three months . . . based on Respondent's pleas of

guilty to first - degree misdemeanors in Case No. 98 - 4569CFW in

the Seminole County Circuit Court" (however, the undersigned

would further point out that the evidentiary record does not

establish that this suspens ion occurred prior to the commission

of the felonies giving rise to the guilty pleas at issue in the

instant case). These circumstances upon which Petitioner

relies, in the undersigned's view, when considered in their

proper context, do not tip the balanc e in favor of the

imposition of a "final penalty" more severe than the "total

penalty."

COPIES FURNISHED :

Philip M. Payne, Esquire

Department of Financial

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399 - 0333

Robert Wesley Trueblood

Post Office Box 2023

Hobe Sound, Florida 33475

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Ca pitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Pete Dunbar, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.