05-004351 Kelly Marie Mistretta vs. Department Of Financial Services Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, March 15, 2007.

Summary: Agency has no authority to deny application after 90-day statutory time limit or application based on plea to a crime not punishable by imprisionment of 1 yr. or more. Waiting periods not grounds for initial denial. Applicant proved fitness for license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KE LLY MARIE MISTRETTA , )

)

Petitioner, )

)

vs. ) Case No. 0 5 - 4 351

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Admi nistrative Law Judge (ALJ) Daniel Man ry conducted the

formal hearing in this proceeding on March 31, 2006 , in Dade

City , Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: K elly Marie Mistretta , pro se

12351 Palm Ridge Drive

San Antonio , Florida 3 3576

For Respondent: Angelique Knox, Esquire

Department of Financial Services

612 Larson Building

200 E ast Gaines Street

Tallahassee, Florida 32399 - 0333

STATEMENT OF THE ISSUE

The issue presented is whether Respondent should deny

Petitioner's application to be licensed as a resident personal

lines insurance agent.

PRELIMINARY STATE MENT

Petitioner submitted a license application to Respondent on

October 29, 2004 . On October 13 , 200 5 , Respondent notified

Petitioner that Respondent proposed to deny the license

application. Pet itioner timely requested a formal hearing, and

Respondent referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified in her o w n behalf and

submitted three exhibits for admission into evidence.

Respondent called no witnesses , but submitted four exhibits for

admission into evidence.

The identity of the witnesses and exhibits and the rulings

rega rding each are reported in the one - volume T ranscript of the

hearing filed with DOAH on April 6 , 200 6 . Petitioner and

Respondent filed their respective P roposed R ecommended O rders

( PROs ) on Ap ril 18 and 17, 2006 .

FINDINGS OF FACT

1. Respondent is the state agency responsible for

lic ensing insurance agents in the s tate pursuant to Cha pter 626,

Florida Statutes (2004 ). On October 29, 2004 , Respondent

received Petitioner 's application to be li cense d as a resident

personal lines insurance agent ( insurance agent ).

2. On October 13 , 200 5 , Respondent issued a Notice of

Denial to Petitioner. Res pondent based the denial on several

g rounds that fall into three categor ies.

3. The first category is based on Petitioner's prior

criminal history. In relevant part, the Notice of Denial denies

the ap plication because Petitioner pled nolo contendere to a

crime punishable by im prisonment of one year or more.

4. The Notice of Denial further states tha t the crime was

one of moral turpitude and that Subsection 626.611(14), Florida

Statutes (2004) , makes denial of the application compulsory.

Even if the crime were not one of moral turpitude , the Notice of

Denial states that the plea of nolo contendere pr ovide s a

discretionary ground to deny the application pursuant to

Subsection 626.621(8), Florida Statutes (2004).

5 . The Notice of Denial states a second category of

grounds that are also compulsory. The second category of

grounds may be fairly summari zed as alleging a lack of fitness

or trustworthiness to engage in the business of insurance.

6. The second category of grounds generally relate s to

turpitude inherent in the criminal offense and an ina ccurate

application answer s tating that Petitioner h ad no prior criminal

record. The Notice of Denial states that Petitioner lacks one

or more qualifications for the license, that Petitioner

committed a material misstatement or misrepresentation on her

application, and that Petitioner demonstrated a lack o f fitness

or trustworthiness to engage in the business of insurance as

provided in Subsections 626.611 (1), 626.611 (2), and 626.611 (7),

Florida Statutes (2004).

7. The t hird category of grounds relates to waiting

periods. The Notice of Denial states that Petitioner must wait

17 years from the date she pled nolo contendere before applying

for a license as an insurance agent. The waiting period is

ba sed on agency rules in Florida Administrative Code

Rules 69B - 211.042(4)(b) and 69B - 211.042 (8) that are promu lg ated

pursuant to Subsection 626. 207(1), Florida Statutes (2004).

8. The remaining Findings of Fact address the factual

sufficiency of the second category of grounds for denial . The

c onclusions of l aw , in relevant part, address the legal

sufficiency o f the remaining grou nds for denial.

9 . The criminal record of Petitioner is not disputed. On

October 4, 2004, Petitioner pled nolo contendere to a third

degree felony of grand theft in the Circuit Court i n and f or

Pasco County, Florida, Case No. CRCO4 - 11 77 - CFAES .

10. The court withheld adjudication of guilt and imposed

fines and costs of $395. Petitioner served 30 days in the Pasco

Co unty jail . The court placed Petitioner on supervised

probation for 18 months, which Petitioner successfully

terminated early on September 27, 2005.

11 . Petitioner contest s neither th e inaccuracy of the

application answer stating she had no prior criminal record nor

th e materiality of the inaccuracy . However, Petitioner does

contest the agency's assertion that Petition er possessed the

culpable kno wledge or scienter required to misstate,

misrepresent , or commit fr aud in attempting to obtain a license

within the meaning of Subsection 626.611(2), Florida Statutes

(2004). Petitioner also contests the assertion s t hat she

l acks one or more qualifications for licensur e and that she

lack s fitness or trustworthiness within the meaning of

Subsections 626.611(1), 626.611 (2), and 626.611 (7), Florida

Statutes (2004).

12 . Petitioner testif ied that her employer submitted her

applica tion electronically. Petitioner testified that she gave

her employer accurate information concerning her application ,

but sh e did not review the application before transmission .

13 . The t rier of fact finds the testi mony concerning

Petitioner's lack of culpable knowledge to be credible and

persuasive . Petitioner testified with extraordinary candor .

Her demeanor was frank and unguarded . Her denial of culpable

intent to mislead the agency is consistent with the totality of

evidence in this proceeding an d with Petitioner's demonstrated

fitness and trustworthiness after November 2002.

14 . After Petitioner gave birth to a son on March 20,

2002, her treating physician advised her to undergo a tubal

ligatio n, and the subsequent surgery was successful . The

resulting inability to bear more children , however, led

Petitioner in to a mental state that was subsequently diagnosed

as severe cl inical depression.

15 . Petitioner returned to work a pproximately 12 weeks

after surgery. From August 2002 through Novemb er 2002,

Petitioner e ngaged in an episode of compulsive spending in which

she incurred approximately $70,000 in credit card debt that she

charged to personal and business credit cards .

16. In order to pay the debt, Petitioner began taking

money from her employer. Petitioner describes her h edon istic

offense in her own words:

[T]his incident occurred when I was

suff er ing from severe depression that was

[subsequently] diagnosed by a physician. I

have been under the treatment of a

psychiatrist and also a psychologist. I

still see my psychiatrist quarterly to make

sure that all is well with my medications

. . . . The psychologist released me from

her care because she felt that I can now

deal with everyday stress . . . .

So in order to fill that void [o f no more

children] I started shopping. And I would -

I would go to the mall in a day and I would

spend several thousand dollars on absolute

garbage, you know, when you look. I mean.

I started buying clothes; I bought

furniture. I just was a shopaholic . I

would go every Saturday and Sunday and spend

time at the mall and just shop like crazy.

[M]y husband had no idea of our finances.

He just gave the paycheck and said: You do

what you need to do. As long as he could

have cash he didn't care. So h e had no

idea. He didn't even know how much money I

made; he didn't know how much our mortgage

was; he didn't know anything about our

finances.

And then once I started having all these

credit card bills then I was, you know,

robbing Peter to pay Paul . . . . And then

it just got where I snapped . . . .

And . . . unfortunately it looked like the

easy way out. It was an answer to my

problems and I could continue doing what I

needed to do .

[T]he attorney [employer] pretty much left

me to do what I nee ded to do. I wrote all

of his court motions, and I wrote all of his

pleadings, and accountings, and inventories,

and he didn't even look at them. He would

just sign them. He didn't review them at

all.

And so when I would give him checks t o sign

. . . I would just take him the check and

say, "I need you to sign a check, " and he

would sign the check and wouldn't even look

to see . . . it was [to me].

Transcript (TR), pages 15 and 24 - 26.

17 . After November 2002, Petitioner voluntarily disclosed

her off ense to her employer. Petitioner's effort to reclaim her

integrity and trustworthiness was both epiphanic and Herculean.

T he effort is best described in her own words :

I started contemplating suicide and said:

Oh, well, this will take care of all the

pro blems. But then I had read up and didn't

want my kids to grow up without a parent or

think that for some reason they caused me to

do it.

So at that point in time I was just - I

didn't know what to do or where to turn. I

was just completely lost.

And so I hadn't been to church in like a

year. For whatever reason the Sunday befor e

the Monday that I went to [an] attorney I

went to church and they told a story. And I

said: You know, I'm willing to confess to

what I've done at whatever cost because I

ca n't - I can't keep going like this, and I

can't keep pretending like nothing is wrong,

and laying in bed and the couch all day.

So I went to [an] attorney the very next

day.

Q. Do you need a moment?

A. I'm okay.

* * *

In January 2003, I'm sorry. This is hard

reliving it.

THE COURT: That's okay. Take your time and

if you need a recess just let me know.

A. This is the first time that I just

really said it out loud.

THE COURT: Yes.

A. In January of 2003, I contacted [an

attorney]. I infor med him . . . that I had

done something wrong and I didn't know where

to turn to or who to turn to. At this point

in time I hadn't told my family and nobody

knew. All they knew is that something was

wrong with me. I wasn't myself. I was

withdraw n and I stayed in bed . . . all day.

The attorney immediately contacted my fo rm er

employer to advise that there was a problem

with his accounting system. Up until this

time he had no knowledge of any . . .

problems.

My attorney also contacted a doctor for me

to see immediately because he could tell

that something was not right with me.

At this time that my attorney contacted my

former employer I offered to make immedia te

restitution, which I did [over time] .

At this point in time my employer said that

he did not want to contact any authorities

because he didn't want the publicity in a

small town. And as far as I knew , the

situation was taken care of. I was making

restitution and I thought it was over.

At some point in time my former employer

contact ed the Federal Bureau of

Investigation (FBI). After meeting with the

FBI, I agreed to assist them because my

former employer was billing my time as the

attorney's time in guardianship cases. This

would cause clients to run out of money and

become eligibl e for Medicaid and other state

governmental services.

The federal government ended up dropping the

charge against me and I . . . agreed to

assist them in any cases against my

employer.

When things were not moving along in the

federal case my former emp loyer also

contacted the local authorities. I was

arrested on May 1 of 2004. And this was

almost - this was almost a year - and - a - half

after I had first come forward.

And then in September 2004, my attorney was

ready to go to trial. At the last minute

th e State Attorney offered a plea deal. I

was told that I could finally put this

nightmare behind me by pleading no contest

and I would have no criminal record because

the court would withhold adjudication.

[T]he judge made a point to mention that

adjudica tion was being withheld so I would

have no felony criminal record. And also at

this time there was no restitution ordered

because I had already paid it all back.

TR at 15 - 18.

1 8. Petitioner paid approximately $85,000 in restit ution.

Restitution w as a Sisyphean effort, as Petitio n er explains :

I paid back cash. I had taken - I had

calculated $40,000. He said that I

calculated - that I had taken $60,000 and

then he raised it to $80,000 for his time.

But I - I paid back $45,000 in cash. The

credit card companies, he contacted every

credit card company that I paid and the y all

reversed all of their [charges] . So I ended

up owing, you know, another $45,000 back in

credit cards that he had . . . all the

payments reversed. . . . So I paid a

total - it was $85,000.

* * *

[W]e sold everything we had. . . . We sold

our home. I had bought my husband a third

vehicle. We sold that. We had a motorcycle

that sold. We had a lot of toys.

TR at 27 - 28.

1 9. The trier of fact is not persuaded that Petitioner

would have lied on her license application in October 2005 after

voluntarily disclosing he r offense in January 2003 . When

Petitioner exercised a conscious choice to confess her offens e ,

she knew with certainty that shame would follow her exposu re to

her husband and children. Petitioner also knew that her choice

would subject her family to t he financial hardship and social

upheaval inherent in selling everything they owned to make

rest itution to her former employer. Petitioner lea rned a new

occ upation , contributed to her family's recovery, and testified

candi dly and frankly about her offense.

20. When the court sentenced Petitioner to 30 days in

jail, Petitioner reque sted that she be allowed to serve the

sentence every other weekend . Petitione r worked during the week

and did not want to be away from her children all week and every

weekend. The judge granted the request.

21 . The trier of fact finds that Petitioner neither

misstate d nor misrepresent ed her criminal record on her license

appli cation . Nor did Petitioner commit fraud in answering the

questions on the application within the meaning of Subsection

626.611(2), Florida Statutes (2004) .

22 . The trier of fact finds that Petitioner does not lack

one or more of the qualifications for l icensure required in

Subsection 626.611(1), Florida Statutes (2004). 1 Nor does

Petitioner demonstrate a lack of fitness or trustworthiness to

engage in the business of insurance within the meaning of

Subsection 626.611(7), Florida Statutes (2004).

CONCL USIONS OF LAW

23 . Respondent lacks statutory authority to deny

Petitioner's license application. Respondent did not deny the

application within 90 days , and the application was approved on

January 28, 2005, by operation of Subsection 120.60(1), Florida

Statutes (2004). If Respondent were to issue a final order

inconsistent with the statute, Respondent's final order may be

subject to remand upon timely appeal by Petitioner .

§ 120.68(7)(e)1., Fla. Stat. (2005); Florida Academy of Cosmetic

Surgery, Inc. v. State of Florida, Department of Health, Board of

Medicine , 771 So. 2d 602 (Fla. 1st DCA 2000).

24 . Petitioner submitted her application on October 29,

2004. Respondent issued the prop osed denial on October 13, 2005 .

The Notice of Denial admits "the a pplication for licensure . . .

[was] received by the Department on October 29, 2004."

25 . No evidence of record shows that the application was

incomplete when the Department received it. No evidence of record

shows that Petitioner vol untarily waived or extended the 90 - day

statutory time limit . No evidence of record shows that Respondent

provided oral notice of intent to deny the license application

within the 90 - day statutory time limit. Compare Department of

Transportation v. Calusa Trace Development Corporation, Inc. , 571

So. 2d 543 (Fla. 2d DCA 1990); Sumner v. Department of

Professional Regulation , 555 So. 2d 919 (Fla. 1st DCA 1990).

26 . A n administrative agency organized under the executive

branch of government , including Respondent, cannot inte rpret a

statu t e in a manner that amends, modifies, enlarges, or

contravenes the statute. § 120.58(1), Fla. Stat. (2005).

Agency action that interprets a statute in such a manner risks

violation of the separation of powers clause. Art. 2, § 3 , Fla.

Const . ; Ch. 20, Fla. Stat. (2005).

27. The statutory time limit may not be interpreted as

delegating th e right to exercise unbridled discretion in

applying the law. The non - delegation doctrine requires the

legislature to provide standards and guidelines in an enactment

that are ascertainable by reference to the terms of the

enactment. Bush v. Shiavo , 885 So. 2d 321 (Fla. 2004); B.H. v.

State , 645 So. 2d 987, 992 - 994 (Fla. 1994); Askew v. Cross Key

Waterways , 372 So. 2d 913, 925 (Fla. 1978).

28 . If Res pondent were to have statutory authority to deny

the application, DOAH would have jurisdiction over th e parties

and subject matter in this proceeding. §§ 120.569 and

120.57(1), Fla. Stat. (2002). DOAH provided the parties with

adequate notice of the form al hearing.

29 . Petitioner bears the ultimate burden of proving

entitlement to a license. Florida Department of Transportation

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

Petitioner must show by a preponderance of the evidence that the

gro unds stated in the Notice of Denial are factually and legally

insufficient to deny the license application.

30. Petitioner satisfied her burden of proof concerning the

second category of grounds for denial. Petitioner showed by a

preponderance of the ev idence that she does not lack one or more

of the qualifications for licensure; that she did not commit a

material misstatement or misrepresentation on her application or

fraud in attempting to obtain her license; and that she has not

failed to demonstrat e the necessary fitness and trustworthiness to

engage in the business of insurance. §§ 626.611(1), 626.611 (2),

and 626.611 (7), Fla. Stat. (2004).

31 . Petitioner satisfied her burden of proof concerning

the third category of grounds for denial involving wai ting

periods. Subsection 626.207(1), Florida Statutes (2004),

requires Respondent to "adopt rules establishing specific

waiting periods for applicants to become eligible for licensure

following denial ." (emphasis supplied)

32 . Respondent incorrectly c onstrues the phrase "following

denial" to mean following Petitioner's entry of a plea of nolo

contendere . Similarly, Respondent misconstrues the quoted

phrase to mean that Respondent may utilize a waiting period as a

ground for initial denial of a license rather than as a ground

"following denial."

33 . A state agency, including Respondent, is statutorily

prohibited from interpreting a statute in a manner that modifies

or amends the statute. § 120.52(8), Fla. Stat (2004). A state

agency organized under the executive branch of government that

mod ifies or amends a statute violates the separation of powers

clause. Art. 2, § 3, Fla. Const.; Ch. 20, Fla. Stat. (2005).

34 . The statutory authority in Subsection 626.207(1),

Florida Statutes (2004), for Resp ondent to adopt rules

pertaining to waiting periods cannot be construed to authorize

Respondent to adopt a rule that amends or modifies the statutory

phrase "following denial." A statute may not delegate to the

executive branch of government the power to enact a law or the

right to exercise unrestricted discretion in applying the law.

Shiavo , 885 So. 2d at 321; B.H. , 645 So. 2d at 992 - 994 (Fla.

1994); Cross Key Waterways , 372 So. 2d at 925 (Fla. 1978).

Statutes granting power to the executive branch must clearly

define the power delegat ed, preclude unbridled discretion ,

preclude the enlargement or modification of the law implemented,

and ensure the availability of meaningful judicial review.

Shiavo , 885 So. 2d at 332.

35 . The first category of ground s for denial present s issues

that are largely issues of law rather than issues of fact .

Subsections 626.611(14) and 626.621(8), Flo rida Statutes (2004),

in relevant part, a uthorize Respondent to deny Petitioner ' s

license application if P etitioner pled nol o contendere to a

felony . 2

36 . The term "felony" is statutorily defined by how an

offense is "punishable under the laws of the state. " 3

Section 775.08, Florida Statutes (2005), provides, in relevant

part:

When used in the laws of this state:

(1 ) The te rm " felony " shall mean any criminal

offense that is punishable under the laws of

this state . . . by . . . imprisonment in a

state penitentiary. . . . A person shall be

imprisoned in the state penitentiary for each

sentence which . . . exceeds 1 year.

(em phasis supplied)

37 . The term "punishable" is not defined by statute. The

common and ordinary meaning of the term is "liable to

punishment." The American Heritage Dictionary of the English

Language , page 1060 (Houghton Mifflin Company 1981 ).

38 . T he phrase "punishable under the laws of this state"

lends itself to two competing interpretations. One

interpretation construes "the laws of this state " to exclude the

laws of this state that prescribe sentencing guidelines. The

competing interpretati on construes the "laws of this state"

literally to include statutory limits on sentences .

39 . If the quoted phrase were construed to exclude the

la ws of this state that limit sentences , any offense labeled as

a felony would satisfy the statutory defini tion of a felony in

Subsection 775.08(1), Florida Statutes (2005), even though the

offense was not punishable in the state penitentiary under the

laws of this state that prescribe sentenc es . If the phrase

"punishable under the laws of this state" were con strued

literally to include the laws of this state that prescribe

sentences , a n offense labeled as a felony would not satisfy the

statutory definition of a felony if the statutory limits on

sentences precluded imprisonment in the state penitentiary.

40 . S tatutory sentencing guidelines determine prison

sentences by total prison score. § 921. 0 014(2), Fla. Stat.

(2004). Petitioner's prison score was insufficient for the

offense she committed to be punishable by imprisonment in the

state penitentiary within the meaning of Subsection 775.08(1),

Florida Statutes (2004).

41 . The highest level of severity for third degree grand

theft is level four. 4 A level four grand theft carries a maximum

of 22 points for the primary offense. §§ 921.0012(3) (Level 4)

and 921.0014(1)(a) , Fla. Stat. (2004) (level 4 carries a 22

primary offense points).

42 . Petitioner's total sentence points did not exceed 22.

Petitioner had no additional offenses, victim injury, 5 prior

record, legal status, community sanction vio lations, or other

similar factors that could have increased the total sentence

points above the primary offense score. 6

43 . State prison months are determined by reducing total

sentence points by 28 points. § 921.0014(2), Fla. Stat. (2004).

When 28 p oints are subtracted from Petitioner's 22 points, the

mathematical remainder is a negative six points.

44 . Respondent proposes an interpretation of the phrase

" punishable under the laws of this state " that does not include

the laws of this state th at l imit sentenc es . The proposed

interpretation is not a literal interpretation of the quoted

phrase. The proposed interpretation construes terms that are

not defined by statute in a manner that departs from their

common and ordinary meaning.

45. Responde nt did not articulate in the record any

underlying technical reasons for deference to agency expertise

in the interpretation of statutory terms. Johnston, M.D. v.

Department of Professional Regulation, Board of Medical

Examiners , 456 So. 2d 939, 943 - 944 ( Fla. 1st DCA 1984). The

agency did not explicate policy consider ations that infuse the

proposed statutory interpretation and entitle it to great

deference.

46 . The effect of the proposed agency int erpretation would

be to define an offense as a felony by its label rather than by

the sentence mandated in Subsection s 775.08(1) and 921.0014(2),

Florida Statutes (2004). I t is unnecessary in this proceeding

to determine whether the legislature intended such an effect.

It is clear the legislature intended the license to be issued to

Petitioner by operation of law pursuant to Subsection 120.60(1),

Florida Statutes (2004).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Respondent enter a f inal o rder det ermining

that Petitioner's license applicat ion has been granted by

operation of law.

DONE AND ENTERED this 1 7 th day of May, 2006 , in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 1 7 th d ay of May, 2006 .

ENDNOTES

1/ This finding does not pertain to the statutory

qualifications prescribed for compulsory and discretionary

denial of a license application when an applicant pleads nolo

contendere to a felony. §§ 626.611(14) and 626.621(8), Fla.

Stat. (2004). That issue is addressed in the c onclusions of

l aw.

2/ Denial of a license application is mandatory in

Subsection 626.611(14), Fl orida Stat utes (2005), but

discretionary in Subsection 626.621(8), Fl orida Stat utes .

Denial is mandatory if the felony involves moral turpitude , but

discretionary if the felony does not involve moral turpitude.

Grand theft has been held to be a crime of moral turpitude.

Bruner v. Board of Real Estate, Department of Professional

Regulation , 399 So. 2d 4 (Fl a. 5th DCA 1981). Both statutes

authorize denial, in relevant part, upon the entry of a plea of

nolo contendere to a crime that is punishable by imprisonment of

one year or more in a federal jurisdiction or other state, but

the "one year or more" language is inapposite to this

proceeding. Goodwin v. Department of Insurance , Case

No. 00 - 3503 (DOAH November 14, 2000).

3/ Other statutes classify various types of crimes that satisfy

the definition of a felony or misdemeanor. § 775.081, Fla.

Stat. (2005).

4/ Ch . 921, Fla . Stat . (2004). The original charge against

Petitioner was grand theft in the second degree. See

§ 812.014(2)(b)1 . , Fla. Stat. (2004) (property valued at $20,000

or more , but less than $100,000). However, Petitioner pled

guilty to grand theft in the third degree. See § 812.014(2)(c),

Fla. Stat. (2004).

5 / The term "victim injury" means physical injury.

§ 921.0021(7)(a), Fla. Stat. (2004).

6 / The statute defining grand theft in the third degree

contains subparagraphs 1 through 12. § 812.014(2)(c)1 . - 12 . ,

Fla. Stat. (2004). The copy of the judgment that was admitted

into evidence in this proceeding accepts a plea of nolo

contendere to "812.014 3rd Degree Felony." The offense

committed did not involve any subject matter included in

subparagraphs 4 through 12. § 812.014(2)(c)4 . - 12 . , Fla. Stat.

(2004). A determination of which of the remaining subparagraphs

to which Petitioner pled would determine the offense severity

level to be used in determining a sentence. Compare

§ 921.0012(3 ) , Fla. Stat. (2004) (Level 2 offenses include

§ 812.014(2)(c)1 ., Fla. Stat. ) with § 921.0012(3) , Fla. Stat.

(Level 3 offenses include § 812.014(2)(c)2 ., Fla. Stat. ) and

§ 921.0012(3) , Fla. Stat. (Level 4 offenses include

§ 812.014(2)(c)3 ., Fla. Stat. ). I t is unnecessary to determine

which level of severity is correct because the highest level of

severity would not result in imprisonment for a term equal to or

greater than a year and a day.

COPIES FURNISHED :

Kelly Marie Mistretta

12351 Palm Ridge Driv e

San Antonio, Florida 33576

William W. Tharpe, Jr., Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Angelique Knox, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Carlos G. Mu ñ iz, General Counsel

Department of Financia l Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommen ded Order should be filed with the agency that

will issue the Final Order in this case.