07-003543PL Department Of Financial Services vs. Patrick Erik Nadelhoffer Status: Closed Recommended Order on Monday, February 4, 2008.

Summary: Aggravated stalking, the crime to which Respondent pled guilty, is a felony involving moral turpitude. Accordingly, by having entered plea, Respondent violated Sections 626.611(14) and 626.621(8), Florida Statutes. Recommend a 3-month license suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Petitioner, )

)

v s. ) Case No. 07 - 3543 PL

)

PATRICK ERIK NADELHOFFER , )

)

Respondent. )

_________________________________ )

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

October 5, 2007 , 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 Hearings (DOAH).

APPEARANCES

For Petitioner: Robert Alan Fox , Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399 - 0333

For Respondent: Daniel H. Thompson, Esquire

Berger Singerman, P.A.

125 South Gadsen Street, Su i te 300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint, as amended at hearing, and if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

On July 6, 2007 , the Department of Financial Services

(Department) issued a two - count Administrative Complaint

alleging : (1) that Respondent had violated Section s 626.611(14)

and 626.621(8) , Florida Statutes, by entering a plea of guilty

to the felony offens e of " Domestic Aggravated Stalking" in Palm

Beach County Circuit Court on November 30, 2006 (Count I); and

(2) that he had violated Section 626.621 (2) and (11) , Florida

Statutes, by failing to inform the Department in writing of the

plea within 30 days of its entry (Count II). The Administrative

Complaint advised Respondent that the Department " intend[ed] to

enter an Order suspending or revoking [his] licenses and

appointments as an insurance agent or to impose such penalties

as may be provided under the p rovisions of Section s 626.611,

626.621, 626.681, 626.691, and 626.9521, Florida Statutes, and

under the other referenced Sections of the Florida Statutes set

out in this Administrative Complaint."

Respondent subsequently request ed a "formal administrativ e

hearing to challenge the [Administrative] Complaint." On

August 1, 2007 , the matter was referred to DOAH for the

assignment of an Administrative Law J udge to conduct the hearing

Respondent had requested .

As noted above, the hearing was held on October 5 , 2007.

At the outset of the hearing, counsel for the Department

announced that the Department was " abandon [ ing ]" Count II of the

Administrative Complaint . Thereafter , the parties made their

evidentiary presentations. T hree witnesses testified at the

he aring: Officer Teak Adams , Kathy Spencer, and Respondent. In

addition to the testimony of these three witnesses , 20 exhibits

(Petitioner's Exhibits 1 through 9 , 13 through 15, 17, 19, and

29 through 32, and Respondent 's Exhibits 1 and 4 ) were offered

and received into evidence.

At the close of the taking of evidence, the undersigned

established a deadline ( 14 days from the date of the filing of

the hearing transcript with DOAH) for the filing of proposed

recommended orders.

The hearin g T ranscript (consi sting of one volume) was filed

with DOAH on January 9, 2008 .

The Department and Respondent timely filed their Proposed

Recommended Order s on January 22, 2008, and January 23, 2008,

respectively .

FINDINGS OF FACT

Based on the evidence adduced at hearing, an d the record as

a whole, the following findings of fact are made:

1. Respondent is a 46 - year - old man who holds the following

Florida insurance licen ses: a 2 - 16 life agent license (with an

original issue date of July 25, 1987); a 2 - 18 life and health

agen t license (with an original license date of July 25, 1987);

an d a 2 - 20 general lines property and casualty agent license

(with an original issue date of October 2, 1986). At no time

during the period that he has held these licenses has he ever

been discip lined by the Department or its predecessor.

2. For the past 20 years, Respondent has worked as an

agent for State Farm.

3. On or about November 3, 2006 , a crimi n al information

was filed against Respondent in Palm Beach County (Florida)

Circuit Court Cas e No. 06 - CF 013354AMB . The information alleged

that Respondent, " on or between September 22, 2006, and

October 8, 2006 , . . . did willfully, maliciously, and

repeatedly follow, harass or cybersta lk AIMEE NADELHOFFER and

did mak e a credible threat, with the intent to place AIMEE

NADELHOFFER or AIMEE NADELHOFFER'S child, sibling, spouse,

parent or dependent in reasonable fear of death or bodily

injury, contrary to Florida Statute 784.048(3) [Florida

Statutes] ."

4. Aimee Nadelhoffer, t he person named as the alleged

victim in the information , i s Respondent's former wife. She and

Respondent are the parents of a three - year - old child for whom

Respondent is paying child support .

5. On November 30, 2006 , pursuant to a plea agreement,

Respondent (who had no pre vious criminal record) pled guilty to

the crime alleged in the criminal information filed against him .

At the time he entered into th e plea agreement , Respondent was

in jail awaiting trial and concerned that he would "lose [his]

State Farm agency" if he r emained incarcerated until his trial

was held .

6. A djudication of guilt was withheld, 1 and Respondent was

placed on probation for three years , with conditions that

included: not "associat[ing], communicat[ing], or hav[ing] any

contact [except for contact by e - mail in reference to child

custody issues] with [the] victim," Aimee Nadelhoffer, who had

suffered substantial emotional distress as a result of

Respondent's admitted 2 criminal wrongdoing, 3 n or "com[ing] with in

200 f[eet]t of her residence or place o f employment " ; undergoing

a "psychological evaluation" and completing any " recommended

treatment " ; and submitting to random drug testing at his own

expense . It was furthered ordered that Respondent could

"request early termin ation of probation after 2 yea rs if [he]

successfully complete[d] all conditions and [ there were] no

violations."

7. In computing Respondent's "lowest permissible sentence"

pursuant to Section 921.0024, Florida Statutes, 4 the sentencing

judge assessed no additional points in any of th e following

categories set forth on the Criminal Punishment Code Worksheet:

"additional offenses," "victim injury," "prior record," "legal

status violation," "community sanction violation,"

"firearm/semi - automatic or machine gun," "prior serious felony,"

and "enhancements." For his commission of the "primary offense "

he was assessed 36 points. 5

8. On September 19, 2007, in accordance with a request

made by Aimee Nadelhoffer, the conditions of Respondent's

probation were "modified to provide [that Respon dent] may have

'No Violent Contact ' [as opposed to no contact of any kind] with

Aimee Nadelhoffer." Respondent presently has contact with Aimee

Nadelhoffer, dealing with her cooperatively concerning "issues

associated with [child] visitation and the like. "

9. Since the entry of his guilty plea, Respondent has not

spent any time in jail.

10. Respondent is still on probation.

11. No proceedings have been brought seeking to revoke his

probation.

12. In November 2006, two other criminal informations were

f iled against Respondent. One was filed in Palm Beach County

Court on November 7, 2006 , and charged, in its two counts, that

Respondent, on October 19, 2006 , did : "willfully, after having

been served with an Injunction for Protection Against Domestic

Viol ence issued pursuant to section 714.30 . . . , knowingly and

intentionally come within 100 feet of AIMEE NAD EL HOFFER's motor

vehicle, contrary to Florida Statute 741.31(4)(a)6." (Count 1);

and "leav [e] the scene of a crash involving damage, in violation

of Section 316.061, Florida Statutes " (Count 2). The other

criminal information was filed in Palm Beach County Court on

November 17, 2006, and charged Respondent with two counts of

violating an injunction for protection (of Aimee Nadelhoffer)

against domest ic violence, in violation of Section

741.31(4)(a)5., Florida Statutes. 6

13. After the Department learned o f Respondent's guilty

plea in Palm Beach County (Florida) Circuit Court Case No. 06 -

CF013354AMB, it filed the two - count Administrative Complaint

agai nst Respondent described in the Preliminary Statement of

this Recommended Order . At Respondent's request, the matter was

subsequently referred to DOAH for hearing.

14. During the discovery phase of the proceeding ,

Respondent, through his attorney, took t he deposition of Kathy

Spencer, whom the Department had designated under Fl a . R . Civ.

P. 1.310 as its representative for purposes of "explain[ing] the

Department's decision as to what disciplinary action should be

imposed on [Respondent] for the charges se t forth in the

Administrative Complaint [in this case] ." In her deposition

testimony , Ms. Spencer clarified what the Department had stated

in the Administrative Complaint regarding the disciplinary

action it intended to take against Respondent. She testi fied

that the Department was seeking to impose a three - month

suspension for the violations alleged in Count I and an

additional three - month suspension for the wrongdoing alleged in

Count II . She further testified that, with respect to Count I,

it was the Department's position that the crime to which

Respondent had pled guilty in Palm Beach County (Florida)

Circuit Court Case No. 06 - CF013354AMB was a "felony involving

moral turpitude." 7

CONCLUSIONS OF LAW

15. DOAH has jurisdiction over the subject matte r of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

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

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

Stat.

17. It is the Department's responsibil ity to "enforce the

provisions of this code." § 624.307(1), Fla. Stat.

18. Among its duties is to license and discipline

insurance agents.

19. The Department is authorized to suspend or revoke

agents' licenses, pursuant to Sections 626.611 and 626.621,

Florida Statutes; to impose fines on agents of up to $500.00 or,

in cases where there are "willful violation[s] or willful

misconduct, " up to $3,500, and to "augment[]" such disciplinary

action "by an amount equal to any commissions received by or

accruing to the credit of the [agent] in connection with any

transaction as to which the grounds for suspension, [or]

revocation . . . related," pursuant to Section 626.681, Florida

Statutes; to place agents on probation for up to two years,

pursuant to Section 62 6.691, Florida Statutes; and to order

agents "to pay restitution to any person who has been deprived

of money by [their] misappropriation, conversion, or unlawful

withholding of moneys belonging to insurers, insureds,

beneficiaries, or others," pursuant to Section 626.692, Florida

Statutes.

20. The Department may impose a fine or place an agent on

probation "in lieu of" suspension or revocation of the agent's

license " except on a second offense or when . . . suspension

[or] revocation . . . is mandatory. " §§ 626.681 and 626.691,

Fla. Stat.

21. The Department may take disciplinary action against an

agent only after the agent has been given reasonable written

notice of the charges and an adequate opportunity to request a

proceeding pursuant to Sections 12 0.569 and 120.57, Florida

Statutes. See § 120.60(5), Fla. Stat.

22. An evidentiary hearing must be held if requested by

the agent when there are disputed issues of material fact.

§§ 120.569 and 120.57(1), Fla. Stat.

23. At the hearing, the Department bears the burden of

proving that the agent engaged in the conduct, and thereby

committed the violations, alleged in the charging instrument.

Proof greater than a mere preponderance of the evidence must be

presented for the Department to meet its burden o f proof. Clear

and convincing evidence of the agent '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); Beshore v. Department of Financial Services , 928

So. 2d 411, 413 (Fla. 1st DCA 2006 ) ; 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

u pon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

24. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderanc e of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). 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 distinctly 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 hesitancy, as to

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

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

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ) ;

see also In re Adoption of Baby E. A. W. , 658 So. 2d 961, 967

(Fla. 1995)("The evidence [in order to be clear and convincing]

must be sufficient to convince the trier of fact without

hesitancy."). "Although this standard of proof may be met where

the evidence is in c onflict, . . . 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).

25. In determining whether the Department has met its

burden of proof, it is necessar y to evaluate its evidentiary

presentation in light of the specific allegations of wrongdoing

made in the charging instrument. Due process prohibits the

Department from taking disciplinary action against an agent

based on matters not specifically 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); Cottrill v. Department of Insurance , 685

So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Delk v. Department of

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

1992).

26. The Administrative Complaint in the instant case, as

modified at hearing, alleges , in its lone remaining count, that

Respondent violated Section 626.611(14), Florida Statutes, and

Section 626.621(8), Florida Statutes, as a consequence of his

having pled guilty on November 30, 2006 , in Palm Beach County

(Florida) Circuit Court Case No. 06 - CF013354AMB to the felony of

" Dom estic Aggravated Stalking " (as described in Section

784.048(3) , Florida Statutes ) .

27. Section 626.611 (14), Florida Statutes, provide s 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:

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 l aw of the

United States of America or of any state

thereof or under the law of any other

country which involves moral turpitude,

without regard to whether a judgment of

conviction has been entered by the court

having jurisdiction of such cases.

Section 62 6.621( 8 ), Florida Statutes, provides as follows:

The department may, in its discretion, deny

an application for, suspend, revoke, or

refuse to renew or continue 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 that as to the

applicant, licensee, or appointee any one or

more of the following applicable grounds

ex ist under circumstances for which such

denial, suspension, revocation, or refusal

is not mandatory under s. 626.611:

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 mor e under the law of the

United States of America or of any state

thereof or under the law of any other

country, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such cases.

28. Becaus e they are penal in nature, these statutory

provisions must be strictly construed, with any reasonable

doubts as to their meaning being resolved in favor of the agent .

See Capital National Financial Corporation v. Department of

Insurance , 690 So. 2d 1335, 1337 (Fla. 3rd D CA 1997)("Section

627.8405 is a penal statute and therefore must be strictly

construed: . . . . 'When a statute imposes a penalty, any doubt

as to its meaning must be resolved in favor of a strict

construction so that those covered by the statute have clea r

notice of what cond uct the statute proscribes.'"); and Werner v.

Department of Insurance and Treasurer , 689 So. 2d 1211, 1214

(Fla. 1st DCA 1997)("[S]tatutes authorizing the revocation of a

license to practice a business or profession 'must be strictly

c onstrued, and such provisions must be strictly followed,

because . . . penal in . . . nature.'").

29. It is undisputed, and the record evidence clearly a nd

convincingly establishes, tha t on November 30, 2006, Respondent

pled guilty to the charge , made in Palm Beach County (Florida)

Circuit Court Case No. 06 - CF013354AMB, that he had committed

" Domestic Aggravated Stalking," in violation of Section

784.048(3), Florida Statutes , which provides as follows:

Any person who willfully, maliciously, and

repeatedly follows, harasses, [ 8 ] or

cyberstalks [ 9 ] another person, and makes a

credible threat [ 10 ] with the intent to place

that person in reasonable fear of death or

bodily injury of the person, or the person's

child, sibling, spouse, parent, or

dependent, commits t he offense of aggravated

stalking, [ 11 ] a felony of the third degree,

punishable as provided in s. 775.082, s.

775.083, or s. 775.084.

30. Inasmuch as "Domestic Aggravated Stalking" is a

felony, Respondent's having pled guilty to this crime

constituted a v iolation of Section 626.621(8), Florida Statutes,

as alleged in Count I of the Administrative Complaint.

31. Whether the entry of this plea also constituted a

violation of Section 626.611 (14), Florida Statutes , as further

charged in Count I of the Adminis trative Complaint, turns on

whether "Domestic Aggravated Stalking" involves " moral

turpitude ."

32. The Florida Insurance Code does not contain a

definition of what constitute "crimes involving moral

turpitude." 12

33. Such a definition, however, is found in Florida

Administrative Code Rule Chapter 69B - 231 . "The purpose of this

rule chapter is to implement the Department's duty under

Sections 624.307(1) and 626.207(2), F.S., to enforce Sections

626.611, 626.621, 626.631, 626.641, 626.681 and 626.691, F.S.,

by establishing standards for penalties described in those

statutory sections, and interpreting provisions in those

sections as they relate to penalties imposed upon licensees

specified in Rule 69B - 231.020, F.A.C. "

34. Among the rule provisions in Florid a Administrative

Code Rule Chapter 69B - 231 is Florida Administrative Code Rule

69B - 231.030 (4) , which defines "[c] rimes involving moral

turpitude" as " each felony crime identified in subsection 69B -

211.042(21), F.A.C., and each felony crime not identified i n

subsection 69B - 211.042(21), F.A.C., that is substantially

similar to a crime identified in subsection 69B - 211.042(21),

F.A.C. " See also Fla. Admin. Code R. 69B - 211.042(7)(d)("The

lists are not all - inclusive. Where a particular crime involved

in an appl ication is not listed in this rule, the Department has

the authority to analogize the crime to the most similar crime

that is listed. No inference is to be drawn from the absence of

any crime from this list, to the effect that said crime is not

grounds fo r adverse action under this rule.").

35. "Domestic Aggravated Stalking" is not identified in

Florida Administrative Code Rule 69B - 211.042(21) , but is

"substantially similar" to a felony crime that is so identified ,

specifically , "Aggravated A ssault " (whic h is identified in

Florida Administrative Code Rule 69B - 211.042(21) (yy)). An

"aggravated assault" is "an assault 13 : (a) With a deadly weapon

without intent to kill; or (b) With an intent to commit a

felony. " § 784.02 1(1) , Fla. Stat.

36. "T he stalking statute [ that is, Section 784.048,

Florida Statutes , which includes the crimes of simple stalking

(a first degree misdemeanor) and aggravated stalking ] bears a

family rese mblance to the assault statutes, " with which it is

grouped in Chapter 784, Florida St atutes. Bouters v. State , 659

So. 2d 235, 238 (Fla. 1995) ( quoting with approval , Pallas v.

State , 636 So. 2d 1358 , 1361 (Fla. 3d DCA 1994)) ; see also

Pallas , 636 So. 2d at 1360 n.3 ("The stalking statute is

codified as part of chapter 784, entitled 'Assau lt; Battery;

Culpable Negligence.'"). Furthermore, it has been said that

"[a]ggravated stalking is in the nature of an aggravated form of

assault." Bouters , 659 So. 2d at 239 (Kogan, J., specially

concurring) .

37. Both a ggravated s talking and aggravated assault are

third degree , "forcible" felonies 14 involving the threat of

physical harm to another individual. See § 776.08, Fla. Stat.

(" 'Forcible felony' means treason; murder; manslaughter; sexual

battery; carjacking; home - invasion robbery; robbery; burg lary;

arson; kidnapping; aggravated assault; aggravated battery;

aggravated stalking; aircraft piracy; unlawful throwing,

placing, or discharging of a destructive device or bomb; and any

other felony which involves the use or threat of physical force

or vi olence against any individual."); § 784.021(2), Fla. Stat.

("Whoever commits an aggravated assault shall be guilty of a

felony of the third degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084. ") ; and § 784.048(3), Fla.

Stat.

38. The Department, in a recent case, In the Matter:

Michael McBeth , No. 90852 - 07 - AG , slip op. at 2 - 3 ( DFS

November 8, 2007)(Final Order) , had occasion to consider whether

aggravated stalking was a crime involving moral turpitude and

determined that it was, findi ng it to be "more analogous to the

crime of Aggravated Assault [which is listed in Florida

Administrative Code Rule 69B - 211.042(21) ] [than to the crime of ]

Simple Assa ult [which is not so listed ]." The re is no good

reason for the Department to reach a con trary conclusion in the

instant case.

39. Inasmuch as "Domestic Aggravated Stalking" is a felony

involving "moral turpitude," Respondent's having pled guilty to

this crime constituted not only a violation of Section

626.621(8), Florida Statutes, but also a violation of Section

626.611 (14), Florida Statutes (rendering him subject to

mandatory suspension or revocation of his insurance license s ),

as alleged in Count I of the Administrative Complaint.

40. To determine what specific disciplinary action the

De partment should take against Respondent for committing these

violation s , it is necessary to first consult the Department 's

"penalty guidelines" set forth in Florida Administrative Code

Rule Chapter 69B - 231, which impose restrictions and limitations

on the exercise of the Department 's disciplinary authority . See

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

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

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

guidelines fo r 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."); Buffa v. Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA

1995)("An age ncy 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).

41. These "penalty guidelines" were adopted pursuant to

the rulemaking authority delegated to the Department by Section

626.207(2), Florida Statut es, which provides as follows:

The department shall adopt rules

establishing specific penalties against

licensees for violations of s. 626.611, s.

626.621, s. 626.8437, s. 626.844, s.

626.935, s. 634.181, s. 634.191, s. 634.320,

s. 634.321, s. 634.422, s. 634.423, s.

642.041, or s. 642.043. The purpose of the

revocation or suspension is to provide a

sufficient penalty to deter future

violations of the Florida Insurance Code.

The imposition of a revocation or the length

of suspension shall be based on the type of

conduct and the probability that the

propensity to commit further illegal conduct

has been overcome at the time of eligibility

for relicensure. The revocation or the

length of suspension may be adjusted based

on aggravating or mitigating factors,

established by rule and consistent with this

purpose.

42. Florida Administrative Code Rule 69B - 231.040 explains

how the Department goes about "[c]alculating [a] penalty." 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 purp ose 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 number or nature of the

violations established in a single count o f

an administrative complaint.

(2) Total Penalty. Each penalty per count

shall b e added together and the sum shall be

referred to as the "total penalty ."

(3) Final Penalty.

(a) The final penalty which will be imposed

against a licensee under these rules shall

be the total penalty, as adjusted to take

into consideration any aggr ava ting or

mitigating factors;

(b) The Department may convert the total

penalty to an administrative fine and

probation if the licensee has not previously

been subjected to an administrative penalty

and the current action does not involve a

viola tion of Sec tion 626.611, F.S.;

(c) The Department will consider the

factors set forth in rule subsection 69B -

231.160(1), F.A.C., in determining whether

to convert the total penalty to an

admi nistrative fine and probation.

(d) In the event that the final penalty

w ould exceed a suspension of twenty - four

(24) months, the final penalty shall be

revocation.

43. Florida Administrative Code Rule 69B - 231.080 is

entitled, "Penalties for Violation of Section 626.611." It

provides, in pertinent part, as follows:

If it is found that the licensee has

violated any of the following subsections of

Section 626.611, F.S., for which compulsory

suspension or revocation is required, the

following stated penalty shall apply:

* * *

(14) Section 626.611(14), F.S. -- see

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

44. Florida Administrative Code Rule 69B - 231.090 is

entitled, "Penalties 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 foll owing subsections of

Section 626.621, F.S., for which suspension

or revocation of license(s) and

appointment(s) is discretionary, the

followin g stated penalty shall apply:

* * *

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

69B - 231 .150, F.A.C.

* * *

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

in pertinent part, as follows:

* * *

(3) If a licensee is not convicted of, but

has been found guilty of or has pleaded

guil ty 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 is a

crime involving moral turpitude or is a

crime involving breach of trust or

dishonesty, the penalties are as follows:

* * *

(c) If the conduct is not related to the

business of insurance and does not involve

dishonesty or breach of trust, the penalty

shall be a 6 month sus pension. [ 15 ]

* * *

46. Accordingly, i n the instant case, the "penalty per

count" (as described in Florida Administrative Code Rule 69B -

231.040 (1)) for Count I of the Administrative Complaint is a

six - month suspension . Because Co unt I is the lone remaining

count of the Administrative Complaint (Count II having been

"abandon[ed]" by the Department ) , a six - month suspension is also

the "total penalty" (as described in Florida Administrative Code

Rule 69B - 231.040 (2)) in this case.

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

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

made to this "total penalty" are set forth in Florida

Administrative Code Rule 69B - 231.160 (2) , 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, i f warranted

by the Department's consideration of the

factors, either decrease or increase the

penalty to any penalty authorized by law.

* * *

(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 sinc e

criminal proceeding;

(b) Age of licensee at time the crime was

committed;

(c) Whether licensee served time in jail;

(d) Whether or not license e violated

criminal probatio n;

(e) Whether or not licensee i s still on

criminal probation;

(f) Whether or not licensee's actions or

behavior resulted in substantial injury to

victim[ 16 ] ;

(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.

48. With respect to the "factor" set forth in Florida

Administrative Code Rule 69B - 231.160 (2)(a), it has been slightly

more than a year since Respondent entered his guilty plea in

Palm B each County (Florida) Circuit Court Case No. 06 -

CF013354AMB.

49. With respect to the "factor" set forth in Florida

Administrative Code Rule 69B - 231.160 (2)(b), Respondent was a few

months shy of his 45th birthday at the time of the "Domestic

Aggravated Sta lking" to which he pled guilty.

50. With respect to the "factor" set forth in Florida

Administrative Code Rule 69B - 231.160 (2)(c), Respondent was not

sentenced to any jail time as a result of his plea . 17

51. With respect to the "factor" set forth in Flori da

Administrative Code Rule 69B - 231.160 (2)(d), no charges have been

filed against Respondent alleging that he has violated his

probation.

52. With respect to the "factor" set forth in Florida

Administrative Code Rule 69B - 231.160 (2)(e), Respondent is still

on probation.

53. With respect to the "factor" set forth in Florida

Administrative Code Rule 69B - 231.160 (2)(f), while there is no

record evidence that Respondent's criminal wrongdoing resulted

in any physical " injury to [the] victim ," Aimee Nadelhoffer , the

evidentiary record does establish that Ms. Nadelhoffer suffer ed

substantial emotional distress as a result of Respondent's

actions . 18

54. With respect to the "factor" set forth in Florida

Administrative Code Rule 69B - 231.160 (2) (g) , Respondent was not

ordered to pay any restitution as part of his sentence.

55. With respect to the "factor" set forth in Florida

Administrative Code Rule 69B - 231.160 (2) (h) , Respondent did not

lose his civil rights as a result of his guilty plea.

56. " Other relevant factor s" include the following: as a

licensee, Respondent has an unblemished prior disciplinary

record; at Aimee Nadelhoffer's request, the conditions of

Respondent's probation were "modified to provide [that

Respondent] may have 'No Violent Contact ' [as oppose d to no

contact of any kind] with Aimee Nadelhoffer"; and Respondent

presently has contact with Aimee Nadelhoffer and is acting

cooperatively with her in addressi ng matters relating to their

child . 19

57. Having considered the facts of the instant case in

l ight of the provisions Florida Administrative Code Rule 69B -

231.160 (2), the undersigned concludes that the aggravating and

mitigating factors in the instant case are in equipoise and that

therefore neither an increase , nor a decrease , in the "total

penalty " is warranted based on these factors . Therefore , the

"final penalty" (as described in under Florida Administrative

Code Rule 69B - 231.040 (3)) in this case is a six - month

suspension.

58. The Department, however, is foreclosed from imposing

upon Respondent a penalty as harsh as a six - month suspension due

to its failure to have given Respondent adequate advance warning

that he was at risk of having his license s suspended for this

length of time for having committed the violations alleged in

Count I of the Ad ministrative Complaint . Because the

Department, through its designated representative, Kathy

Spencer, advised Respondent prior to hearing that , with respect

to Count I, it was seeking only a three - month suspension , three

months is the longest that Respond ent's licenses may be

suspended for the wrongdoing alleged in this lone, remaining

count of the Administrative Complaint . See Williams v.

Turlington , 498 So. 2d 468 (Fla. 3d DCA 1986)("Since Williams

was not given notice by either the complaint or later

p roceedings that he was at risk of having his license

permanently revoked, the Commission's imposition of the non -

prayed - for relief of permanent revocation, even if justified by

the evidence, was error.") ; and Department of Business and

Professional Regulat ion, Construction Industry Licensing Board

v. Hufeld , No. 94 - 6781, 1995 Fla. Div. Adm. Hear. LEXIS 4518 *8

(Fla. DOAH May 3, 1995)(Recommended Order)("[R]espondents in

license discipline cases are entitled to notice of the penalty

sought by the agency, and the penalty imposed cannot be more

severe than the most severe potential penalty of which a

respondent had notice.")(Recommended Order) ; cf. Cobas v. State ,

671 So. 2d 838, 839 (Fla. 3d DCA 1996)("Finally, the trial court

erred in imposing a habitual offe nder sentence in lower court

case 89 - 33369, where Cobas was not given prior notice of the

intent to seek enhanced penalties before the plea was

accepted.").

59. In view of the foregoing , the penalty that the

Department should impose in the instant case is a three - month

suspension of Respon dent's license s . 20

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department issue a Final Order finding

Respondent guilty of the violations alleged in C ount I of the

Administrative Complaint and suspending his licenses for three

months for committing these violations .

DONE AND ENTERED this 4th day of February, 2008 , in

Tallahassee, Leon County, Florida.

S

_______________________ ____________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of February, 2008 .

ENDNOT ES

1 Accordingly, Respondent's civil rights were not suspended

pursuant to Section 944.292 (1), Florida Statutes, which provides

as follows:

Upon conviction of a felony as defined in s.

10, Art. X of the State Constitution, the

civil rights of the person convicted shall

be suspended in Florida until such ri ghts

are restored by a full pardon, conditional

pardon, or restoration of civil rights

granted pursuant to s. 8, Art. IV of the

State Constitution.

2 Respondent 's guilty plea constituted an admission that he had

engaged in the criminal conduct alleged in the information filed

against him. See Johnson v. Wainwright , 238 So. 2d 590, 593

(Fla. 1970) ( quoting with approval , McCarthy v. United States ,

394 U.S. 459, 466 (1969) and Boykin v. Alabama , 395 U.S. 238,

243 (1969) ) ("'[A] guilty plea is an admission o f all the

elements of a formal criminal charge . . . .'"); a nd Paterno v.

Fernandez , 569 So. 2d 1349, 1351 (Fla. 3d DCA 1990)("In pleading

guilty to an information charging her with the crime of grand

theft in the first degree, the defendant admitted all f acts

contained in the information, that she committed the crime of

grand theft in the first degree when she took $ 20,000.00 or more

from the plaintiffs with the intent to deprive them of the right

to their property and appropriated the property for her use or

for the use of others. Thus, we find that the facts underlying

the criminal offense were stipulated through a guilty plea.").

3 Officer Teak Adams of the City of Greenacres Public Safety

Department credibly testified at hearing that, when he arrive d

at Aimee Nadelhoffer's home on September 29, 2006, in response

to her complaint concerning "obscene and harassing phone calls,"

Ms. Nadelhoffer was visibly "upset" and "shaking," and she told

him that "she was very nervous and scared for her life" as a

r esult of the harassment she was being subjected to by

Respondent. Officer Adams' testimony as what Ms. Nadelhoffer

said to him regarding her being "very nervous and scared for her

life" is sufficient to support a finding in this administrative

proceeding concerning the emotional distress Ms. Nadelhoffer was

experiencing, notwithstanding the testimony's hearsay nature,

inasmuch as it would be admissible over objection in a civil

proceeding pursuant to the "then existing mental, emotional, or

physical condit ion" exception to the hearsay rule. See §

90.801(1)(c), Fla. Stat. ("'Hearsay' is a statement, other than

one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted."); § 90.802, Fl a. Stat. ("Except as provided by

statute, hearsay evidence is inadmissible."); § 90.803(3)(a)1.,

Fla. Stat. ("The provision of s. 90.802 to the contrary

notwithstanding, the following are not inadmissible as evidence,

even though the declarant is available as a witness: A

statement of the declarant's then - existing state of mind,

emotion, or physical sensation, including a statement of intent,

plan, motive, design, mental feeling, pain, or bodily health,

when such evidence is offered to: Prove the declarant's state

of mind, emotion, or physical sensation at that time or at any

other time when such state is an issue in the action."); §

120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the

purpose of supplementing or explaining other evidence, but it

s hall not be sufficient in itself to support a finding unless it

would be admissible over objection in civil actions.") ; and

Peede v. State , 474 So. 2d 808, 816 (Fla. 1985)("[T]he state

urges that the daughter's testimony that her mother said she was

scared was not prejudicial in light of the fact that the

daughter testified that her mother seemed nervous and scared.

Moreover, the state argues, those statements challenged below

were properly admitted under the hearsay exception to show the

declarant's state of mind which was relevant to the kidnapping

charge which formed the basis for the state's felony murder

theory. We agree. The daughter's testimony in this regard

established Darla's [the mother's] state of mind. Under the

'state of mind' hearsay excep tion, a statement demonstrating the

declarant's state of mind when at issue in a case is

admissible. . . . The victim's statements to her daughter just

prior to her disappearance all serve to demonstrate that the

declarant's state of mind at that time wa s not to voluntarily

accompany the defendant outside of Miami or to North Carolina.

We hold that the trial did not abuse its discretion in admitting

the testimony at issue.").

4 "The lowest permissible sentence is the minimum sentence that

may be impos ed by the trial court, absent a valid reason for

departure." § 921.0024(2), Fla. Stat.

5 Pursuant to Section 921.0024(2), Florida Statutes, where the

"total sentence points" are 44 or less , the "lowest permissible

sentence is any nonstate prison sanct io n ."

6 The evidentiary record in this case does not reveal the

disposition of these two criminal informations.

7 The Department staff person who had initially reviewed

Respondent's case, Richard Walker, an analyst with the

Department, had come to a co ntrary conclusion and had

"recommended [a] monetary fine" rather than taking action

against Respondent's license. Mr. Walker, however, was

overruled by his superiors.

8 "Harass," as used in Section 784.048, Florida Statutes, "means

to engage in a cour se of conduct directed at a specific person

that causes substantial emotional distress in such person and

serves no legitimate purpose." § 784.048(1)(a), Fla. Stat.

9 "Cyberstalk , " as used in Section 784.048, Florida Statutes,

" means to engage in a co urse of conduct to communicate, or to

cause to be communicated, words, images, or language by or

through the use of electronic mail or electronic communication,

directed at a specific person, causing substantial emotional

distress to that person and servin g no legitimate purpose. "

§ 784.048(1)(d ), Fla. Stat. A "course of conduct," for purposes

of this statutory definition, is "a pattern of conduct composed

of a series of acts over a period of time, however short,

evidencing a continuity of purpose." § 7 84.048(1)(b ), Fla.

Stat.

10 "Credible threat," as used in Section 784.048, Florida

Statutes, "means a threat made with the intent to cause the

person who is the target of the threat to reasonably fear for

his or her safety. The threat must be against t he life of, or a

threat to cause bodily injury to, a person." § 784.048(1)(c),

Fla. Stat.

11 Through this statute, "the [L]egislature has proscribed

willful, malicious, and repeated acts of harassment which are

directed at a specific person, which serve no legitimate

purpose, and which would cause substantial emotional distress in

a reasonable person. " Bouters v. State , 659 So. 2d 235, 238

(Fla. 1995) ( quoting with approval , Pallas v. State , 636 So. 2d

1358 (Fla. 3d DCA 1994)). "In determining if an incid ent causes

substantial emotional distress, courts use a reasonable person

standard, not a subjective standard." Slack v. Kling , 959 So.

2d 425, 426 (Fla. 2d DCA 2007) ; see also D. L. D. v. State , 815

So. 2d 746, 748 (Fla. 5th DCA 2002)("[I]n determining w hether an

incident or series of incidents creates substantial emotional

distress for a victim, the distress should be judged not on a

subjective standard (was the victim in tears and terrified), but

on an objective one (would a reasonable person be put in

distress when subjected to such conduct?).").

12 The Florida Supreme Court has observed that "[m]oral

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." State ex rel. Tullidge v. Hollingsworth , 146

So. 660, 661 (Fla. 1933).

13 " An 'assault' is an intentional, unlawful threat by word or

act to do violence to the person of another, coupled with an

apparent ability to do so, and doing some act which creates a

well - founded fear in such other person that such violence is

imminent." § 784.011, Fla. Stat.

14 In contrast, simple assault (a crime not identified in

Florida Administrative Code Rule 69B - 211.042(21), which,

Respondent claims, resembles aggravated stalking "more so tha[n]

aggravated assault" ) is merely a second degree misdemeanor .

§ 784.011(2), Fla. Stat.

15 If "Domestic Aggravated Stalking" were a crime not involving

"moral turpitude," Subsection (4)(c) of Florida Administrative

Code Rule 69B - 231.150 , wh ich provides as follows, would be

applicable to the instant case:

(4) If a 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 is not a

crime involving moral turpitude and is not a

crime involving breach of trust or

dishonesty, the penalties are as follows:

* * *

(c) If the conduct is not related to the

business of insurance, the penalty shall be

a 3 - month suspension.

16 The injury may be physical, emotional, or both. Cf . Craig v.

State , 804 So. 2d 532, 534 (Fla. 3rd DCA 2002)("[T]hat case

involve d the 1973 version of the Baker Act which provided, in

part, that a patient could be committed if '[l]ikely to injure

himself or others if allowed to remain at liberty . . .' The

1973 statute was broad enough to include emotional injury as

well as physica l injury. The Baker Act was subsequently

amended. It now specifies ' serious bodily harm, ' rather than

'harm.' The master and the trial court erred in concluding that

a purely emotional injury satisfies this statutory

element.") (citations omitted).

17 R espondent did spend time in jail awaiting trial prior to the

entry of his plea, but this should not be taken into

consideration in determining what disciplinary action should be

taken against him in this proceeding.

18 Respondent gave self - serving testimo ny at hearing that he was

not " aware of any actual injury that occurred to Ms.

Nadelhoffer." The record evidence establishes, however, that,

whether Respondent was aware of it or not, his criminal

wrongdoing caused his former wife substantial emotional

di stress.

19 In its Proposed Recommended Order, the Department contends

that among the "[o]ther relevant factors" to consider in this

case is the filing of the criminal informations described

Finding of Fact 12 of this Recommended Order. The undersigned

d isagrees, inasmuch as these criminal informations merely

accuse d Respondent of criminal wrongdoing. See Dougan v. State ,

470 So. 2d 697, 701 (Fla. 1985)("An indictment or information is

not evidence against an accused, but, rather, is nothing more or

less than the vehicle by which the state charges that a crime

has been committed. The standard jury instructions point this

up in the pretrial instructions by stating that the charging

document is not evidence and that the jury is not to consider it

as any pr oof of guilt."); and Clark v. School Board of Lake

County , 596 So. 2d 735,739 (Fla. 5th DCA 1992)("The charge of

abuse is certainly not evidence of the commission of the act in

our system of justice."). Neither does the undersigned agree

with the argument made by Respondent in his Proposed Recommended

Order that the "[o]ther relevant factors" in this case include

that "[a]judication of guilt [in Palm Beach County (Florida)

Circuit Court Case No. 06 - CF013354AMB] was withheld" and that

"[t]here is no evidenc e that the ["Domestic Aggravated

Stalking"] offense [to which Respondent pled guilty in that

criminal case] had any bearing on Respondent's insurance agency

obligations." These factors have already been taken into

consideration in the preceding phases of the penalty calculation

process (described in Florida Administrative Code Rule 69B -

231.040 (1) and (2)) , resulting in a less severe "penalty per

count" (six - month suspension) and "total penalty" (six - month

suspension) than otherwise would have been the case . See Fla.

A dmin. Code R. 69B - 231.150(1) (" I f a 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

immediate revocation."); and Fla. Admin. Code R. 69B -

231. 150 (3)(a) and (b)("If a licensee is not convicted of,

but . . . has pleaded guilty . . . 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 oth er country, which is a crime involving moral

turpitude . . . , the penalties are as follows: (a) If the

conduct directly relates to activities involving the business of

insurance, the penalty shall be revocation. (b) If the conduct

indirectly relates to the business of insurance . . . , the

penalty shall be a 12 month suspension.").

20 This is the same penalty that the undersigned would have

recommended had he determined that "Domestic Aggravated

Stalking" was a felony not involving "moral turpitude." S ee

Fl a . Admin. Code R. 69B - 231.150 (4)(c).

COPIES FURNISHED :

Robert Alan Fox , Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

612 Larson Building

Tallahassee, Florida 32399 - 0333

Daniel H. Thompson, Esquire

Be rger Singerman, P.A.

125 South Gadsen Street, Suite 300

Tallahassee, Florida 32301

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Daniel Sumner, General Counsel

D epartment of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0307

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 except ions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.