06-000051PL Department Of Financial Services vs. Bradford Scott Bateman Status: Closed Recommended Order on Wednesday, May 10, 2006.

Summary: Petitioner is required to revoke Respondent`s license where he pled nolo contendre and was adjudicated guilty of three felonies involving moral turpitude.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0051PL

)

BRADFORD SCOTT BATEMAN , )

)

Respondent . )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on March 27,

2006, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David J. Busch, Esquire

Department of Financial Services

Division of Legal Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

For Respondent: Bruce A. Minnick, Esquire

Post Office Box 15 588

Tallahassee, Florida 32317 - 5588

STATEMENT OF THE ISSUE

The issue is whether Respondent’s license as a public

adjuster, all lines, should be revoked.

PRELIMINARY STATEMENT

Through a Notice of Revocation dated October 10, 2005, the

Department of Fin ancial Services (Department) informed

Respondent that his public adjuster’s license was revoked.

Respondent timely requested an administrative hearing, and on

January 4, 2006, the Department referred this case to the

Division of Administrative Hearings (D OAH) for the assignment of

an Administrative Law Judge to conduct the hearing requested by

Respondent.

The Department presented the testimony of Nelson Herold at

the final hearing. Th e Department’s Exhibits 1 and 3 through 5

were received into evidence. The Department’s Exhibit 2 was

offered, but not received.

Respondent did not present any witnesses at the final

hearing. Respondent's Exhibits R1 and R5 were received into

evidence. Exhibits R2 through R4, R6 through R13, and R15 were

offered, but not received. Ruling on the admission of Exhibit

R14 was reserved at the hearing. That exhibit is now received.

Official recognition was taken of Sections 120.569, 120.57,

120.60, 120.68, 120.69, 120.695, 626.207, 626.611, 626.621,

626.631, 626.8437, 626.844 , 626.854, 626.865, 626.869, 626.8697,

626.8698, Florida Statutes, and Florida Administrative Code

Rules 69B - 211.040 through 69B - 211.042 and Rule Chapter 69B - 231.

The Transcript of the final hearing was filed on April 14,

2006. The parties were given 10 d ays from that date to file

proposed recommended orders (PROs). The Department’s PRO was

timely filed on April 24, 2006. Respondent’s PRO was filed on

April 27, 2006. 1 The PROs have been given due consideration.

FINDINGS OF FACT

1. Respondent is licens ed by the Department as a public

adjuster, all lines. His license number is A015739.

2. On September 1, 2004, Respondent pled nolo contendere

to three counts of “lewd or lascivious molestation” in the

Circuit Court of the Twentieth Judicial Circuit in a nd for

Collier County, Florida. Each count was a second degree felony

pursuant to Section 800.04(5)(c)2 . , Florida Statutes (2004) . 2

3. On that same date, Respondent was adjudicated guilty of

all three counts and was sentenced to 15 years in prison to be

“mitigated” to 364 days in jail upon his timely surrender into

custody on November 1, 2004.

4. The transcript of the c ourt hearing at which

Respondent’s plea was accepted, Exhibit R14, includes an

extensive colloquy between Respondent and the judge, the

p rosecutor, and his defense attorney. The colloquy reflects

that Respondent was fully apprised of the plea negotiations

between his attorney and the prosecutor; that he was advised of

the consequences of the court 's accepting his plea and

adjudicating him guilty, including the likelihood that he would

lose his professional license as a result of his convictions;

and that he was advised of his right to reject the plea offered

by the prosecutor and go to trial.

5. The circumstances underlying Respondent’s cr iminal

offenses are described in an Affidavit for Criminal Offense

dated December 19, 2003, and in a Prosecution Report prepared

sometime thereafter. Those documents, which were offered into

evidence by Respondent at the final hearing in this case,

reflec t that Respondent admitted to going into his then 14 - year -

old step - daughter’s bedroom a number of times over a period of

two years to view her genitalia by lifting her pajamas and

moving aside her panties while she slept.

6. In August 2005, the Department commenced an

investigation of Respondent after it learned of his criminal

convictions. The investigation was conducted by Nelson Herold.

7. Mr. Herold compiled records related to Respondent’s

public adjuster business as well as documents from the Collie r

County Clerk’s office related to Respondent’s criminal

convictions.

8. Mr. Herold met with Respondent while he was in jail and

advised him of the Department’s investigation and its intent to

revoke his public adjuster’s license based upon his felony

con victions. Respondent was given an opportunity to provide a

response as part of Mr. Herold’s investigation, but there is no

evidence that he did so.

9. On October 10, 2005, the Department issued a Notice of

Revocation, which informed Respondent that his p ublic adjuster’s

license was revoked based upon his felony convictions. The

Notice advised Respondent of his right to request an

administrative hearing, and Respondent timely did so.

10. Respondent was not present at the final hearing.

11. Respondent's counsel waived Respondent's presence at

the final hearing and elected to proceed without him.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57(1), 120.60(5), and 62 6.631(1), Florida Statutes (2005 ).

13. The parties disagree as to the legal effect of the

Notice of Revocation. The Department contends that in

accordance with the plain language of Section 626.631(1),

Florida Statutes, the revocation of Respondent’s license was

effective immediately upon the issuance of the Notice of

Revocation subject only to this post - deprivation administrative

hearing; Respondent contends that the Notice was preliminary

agency action, and that consistent with well - settled principle s

of Florida administrative law, the revocation of Respondent’s

license cannot become effective until the Department issues a

final order in this case. It is not necessary to resolve the

issue in this proceeding because, whatever the legal effect of

the N otice of Revocation, the heightened burden of proof that

the Department must meet would be the same.

14. In that regard, the Department has the burden to prove

the factual basis for the revocation Respondent’s license by

clear and convincing evidence. S ee Dept. of Banking & Finance

v. Osborne, Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); Goodwin v. Dept. of

Insurance , Case No. 00 - 3503, 2000 Fla. Div. Adm. Hear. LEXIS

5475, at **4 - 5 (DOAH Nov. 14, 2000); Dept. of Insurance v. St.

Pierre , Case No. 00 - 0396, 2000 Fla. Div. Adm. Hear. LEXIS 5256,

at *4 (DOAH June 5, 2000).

15. Section 626.631(1), Florida Statutes, requires the

Department to “immediately revoke[]” the license of a public

adjuster who is convicted of a felony. More specifically, the

statute provides:

If any licensee is convicted by a court of .

. . a felony, the licenses and appointments

of such person shall be immediately revoked

by the department. The licensee may

subsequently request a hearing pursuant to

ss. 120.569 and 120.57, and the department

shall expedite any such requested hearing.

The sole issue at such hearing shall be

whether the revocation should be rescinded

because such person was not in fact

convicted of a violation of this code or a

felony.

§ 626.631(1), Fla. Stat.

16. Section 626.611, Florida Statutes, also requires the

Department to suspend or revoke a public adjuster’s license

under certain circumstances. As it relates to this case, the

statute requires suspension or revo cation where the licensee

has:

pleaded . . . nolo contendere to a felony or

a crime . . . which involves moral

turpitude, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such cases.

§ 626.611(14), Fl a. Stat.

17. A “felony” is a criminal offense punishable by

imprisonment in the state prison for more than one year.

§ 775.08(1), Fla. Stat. See also Art. X, § 10, Fla. Const.

18. The offenses that Respondent pled to and was

adjudicated guilty of are felonies; each count was punishable by

up to 15 years in prison. See § 800.04(5)(c)2 . , Fla. Stat.

(“lewd and lascivious molestation” of a victim between 12 and 16

years of age by an adult is a “felony of the second degree”);

§ 775.082(3)(c), Fla. Stat. (p unishment for a felony of the

second degree is “a term of imprisonment not exceeding 15

years”). The fact that Respondent’s sentence was “mitigated” to

364 days in jail is immaterial to the classification of the

offenses as felonies.

19. The offenses tha t Respondent pled to and was

adjudicated guilty of -- i.e. , pulling aside his 14 - year - old

step - daughter’s panties while she slept in order to view her

genitalia -- are socially and morally reprehensible. The

offenses are unquestionably crimes of moral tur pitude, as

defined by the Department’s rules 3 and case law. 4 Indeed,

Respondent appears to concede that his offenses involve moral

turpitude because he a rgues in h is PRO that the penalty

guideline applicable to his conduct is Florida Administrative

Code R ule 69B - 231.150(1)(c)3 . , which applies to crimes involving

moral turpitude, rather than the guidelines in paragraph (1)(d)

of that rule, which apply to crimes not involving moral

turpitude.

20. The fact that the court adjudicated Respondent guilty

based upon his plea means that Respondent was “convicted” of the

offenses that he pled to. See Fla. Admin. Code R. 69B -

231.030(3) (“’Convicted’ means adjudicated guilty by a court.”);

Fla. Admin. Code R. 69B - 211.042(18)(a)1. (same).

21. Those Department rule s are not undermined by State v.

Gazda , 257 So. 2d 242 (Fla. 1971), which was cited by Respondent

in his PRO for the proposition that there is a distinction

between a conviction and an adjudication of guilt. The case is

distinguishable.

22. First, Gazda did not involve a proceeding under the

Insurance Code . The fact that the case involved a different

statute is significant because, as noted by the court in

Raulerson v. State , 763 So. 2d 285, 291 (Fla. 2000), "the term

'conviction' as used in Florida law has been a 'chameleon - like'

term that has drawn its meaning from the particular statutory

context in which the term is used.” 5

23. Second, the court in Gazda did not adjudicate the

defendant guilty, as was the case with Respondent. Thus, the

holding in Gazda that an adjudication of guilt is not necessary

(at least for purposes of the statute at issue in that case) for

there to be a conviction where the defendant pled guilty in no

way undermines the proposition codified in the Department’s

rules that an a djudication of guilt by the court necessarily

results in a conviction.

24. The decision in Montgomery v. State , 897 So. 2d 12 8 2

(Fla. 2005), supports the proposition codified in the

Department’s rules. In that case, the court held that , a prior

nolo cont endere plea is a “conviction” for purposes of the

sentencing guidelines even if adjudication was withheld by the

court. Id. at 1286. The dissent in Montgomery noted that “[a]

nolo plea means 'no contest,' not 'I confess'” and, therefore,

would have held that “to establish a ‘prior conviction’ there

must have been either an adjudication of guilt , or a plea or a

trial that results in a determination of guilt.” Id. at 1287

(Bell, J., dissenting, joined by Pariente, C.J., and Anstead,

J.) (emphasis supplied) . Thus, there does not appear to be any

dispute at the Florida Supreme Court that an adjudication of

guilt (even if based upon a nolo contendere plea) is a

conviction.

25. Respondent’s de facto collateral attack on the

validity of his convictions and/or the voluntariness of plea is

beyond the scope of this proceeding, see Section 626.631(1),

Fl orida Statutes , 6 as well as the jurisdiction of DOAH and the

Department. Only a circuit court has the authority to consider

those claims. See Fla. R. Crim. P. 3.8 50.

26. Even if it was somehow appropriate to consider

Respondent's collateral attack on his convictions in this

proceeding, the evidence does not support Respondent’s argument

that the plea which led to his convictions was involuntary.

Indeed, the Flori da Rules of Criminal Procedure expressly

contemplate the “interrogations” (as Respondent refers to the

colloquy contained in Exhibit R14) that occurred during the

hearing at which Respondent’s plea was accepted and his sentence

was imposed. See , e.g. , Fla . R. Crim. P. 3.170(k), 3.171(d),

3.172.

27. Respondent’s felony convictions are sufficient in and

of themselves to justify the revocation of his license under

Section 626.631(1), Florida Statutes.

28. Respondent’s pleas of nolo contendere to crimes

invo lving moral turpitude are also sufficient in and of

themselves to justify the revocation of his license under

Section 626.611(14), Florida Statutes. And cf. McNair v.

Criminal Justice Standards & Training Comm’n , 518 So. 2d 390

(Fla. 1st DCA 1987) (where a plea of nolo contendere to an

offense is itself a violation of the licensing statute, the

agency is not required to give the licensee an opportunity to

explain the circumstances surrounding the plea or demonstrate

that he or she is not guilty of the offe nse).

29. Respondent argues in his PRO that the appropriate

penalty for his conduct is the suspension of his license for no

more than six months. In support of that argument, Respondent

cites the penalty guideline in Florida Administrative Code Rule

69B - 231.150(1)(c)3. That rule, which applies “[i]f the licensee

is not convicted” (emphasis supplied), does not apply to

Respondent because he was convicted of three felonies.

30. The penalty guideline applicable to Respondent is

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

states: “If the licensee is convicted by a court of . . . a

felony (regardless of whether or not such felony is related to

an insurance license), the penalty shall be revocation.”

31. Based upon that rule and the plain langu age of

Sections 626.611 and 626.631(1), Florida S tatutes, revocation of

Respondent’s license is mandatory under the circumstances of

this case.

32. In light of these conclusions, it is not necessary to

consider whether revocation of Respondent’s license i s also

justified under Section 626.621(8), Florida Statutes, which

authorizes (but does not require) the Department to suspend or

revoke a public adjuster’s license where the licensee “[has]

been found guilty of or [has] pleaded nolo contendere to a

felony . . ., without regard to whether a judgment of conviction

has been entered by the court . . . .” It is noted, however,

that even if the Department proceeded under Section 626.621(8),

Florida Statutes, the same penalty guideline would apply and,

therefore , revocation of Respondent’s license would be

appropriate. See Fla. Admin. Code R. 69B - 231.150(1)(a).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Department of Financial Services issue

a fin al order affirming the Notice of Revocation and revoking

Respondent’s license as a public adjuster, all lines.

DONE AND ENTERED this 10th day of May, 2006, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Ad ministrative 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 10th day of May, 2006 .

ENDNOTES

1 / On April 24, 2006, Respondent filed a Notice of Filing a Late

Proposed Recommended Order, which stated that counsel for

Respondent “needs additional time in order to finish

Respondent’s PR O” and that “counsel believes he can file

Respondent’s PRO by the end of business April 26.” The Notice,

which represented that Petitioner “does not object to this

additional time,” is treated as an unopposed motion for

extension of time, and is granted nunc pro tunc April 24, 2006.

Respondent’s late - filed PRO is accepted even though it was filed

after the date identified in the Notice.

2 / Except as otherwise noted, all statutory references in this

Recommended Order are to the 2004 version of the statu tes in

effect at the time of Respondent’s convictions.

3 / See Fla. Admin. Code R. 69B - 211.042(21), which states that

“each felony crime listed in this subsection is a crime of moral

turpitude.” Paragraph (bbb) of that rule refers to the crime of

“sexual ly molesting any minor,” which encompasses Respondent’s

offenses as detailed in the Affidavit for Criminal Offense and

the Prosecution Report. See also F la. Admin. Code R. 69B -

211.042( 7)(c) (explaining that the “names or descriptions of

crimes, as set out in the classification of crimes, are intended

to serve only as generic names or descriptions of crimes and

shall not be read as legal titles of crimes, or as limiting the

included crimes to crimes bearing the exact name or description

stated”). But cf. F la. Admin. Code R. 69B - 231.030(4) (defining

“crimes involving moral turpitude” for purposes of the

Department’s penalty guidelines as those felony crimes

identified in subsection (23) of Rule 69B - 211.042, not

subsection (21)).

4 / See , e.g. , State ex rel. Tullidge v. Hollingsworth , 146 So.

660, 661 (Fla. 1933) (“Moral turpitude involves the idea of

inherent baseness or depravity in the private social relations

or duties owed by man to man or by man to society. It has also

been defined as anything done con trary to justice, honesty,

principle or good morals, though it often involves the question

of intent as when unintentionally committed through error of

judgment when wrong was not contemplated.” (citations omitted)).

Accord Aplin v. Fla. Real Estate Comm’ n , Case No. 90 - 1844, 1990

Fla. Div. Adm. Hear. LEXIS 6971, at *6 (DOAH Oct. 2, 1990)

(concluding that “the commission of lewd and lascivious sexual

offenses against children clearly and unequivocally involves

moral turpitude”); Winton v. Office of Financia l Reg. , Case No.

05 - 4070, 2006 Fla. Div. Adm. Hear. LEXIS 108, at **14 - 15 (DOAH

Mar. 16, 2006; OFR Apr. 10, 2006) (concluding that the

applicant’s molestation of his 11 - year - old step - daughter

provides a basis for the denial of his application for a

mortgag e broker’s license because the offense involves moral

turpitude).

5 / The significance of statutory context is highlighted by

Montgomery v. State , 897 So. 2d 1282 (Fla. 2005), and State v.

McFadden , 772 So. 2d 1209 (Fla. 2000). In Mongomery , the court

he ld that a nolo contendere plea is considered a prior

conviction for purposes of the sentencing guidelines even if

adjudication was withheld, whereas the court held in McFadden

that a nolo contendere plea is insufficient to establish a prior

conviction for impeachment purposes if adjudication was

withheld.

6 / See also Fla. Admin. Code R. 69B - 211.042(11)(b), which

governs the Department’s review of license applications and

states:

The Department will not allow or give any

weight to an attempt to re - litigat e,

impeach, or collaterally attack judicial

criminal proceedings or their results

wherein the applicant was found guilty or

pled guilty or nolo contendere. Thus, the

Department will not hear or consider

arguments such as: the criminal proceedings

were unf air; the judge was biased; the

witnesses or prosecutor lied or acted

improperly; the defendant only pled guilty

due to financial or mental stress; the

defendant was temporarily insane at the time

of the crime; or the defendant had

ineffective counsel.

CO PIES FURNISHED :

Honorable Tom Gallagher

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level II

Tallahassee, Florida 32399 - 0300

Carlos G. Mu n~ iz, General Counsel

Department of Financial Services

The Capitol, Plaza Level II

T allahassee, Florida 32399 - 0300

David J. Busch, Esquire

Department of Financial Services

Division of Legal Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399 - 0333

Bruce A. Minnick, Esquire

Minnick Law Firm

Post Office Box 1 5588

Tallahassee, Florida 32317 - 5588

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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.