07-000687PL Department Of Financial Services vs. Courtney Prince Walker Status: Closed Recommended Order on Wednesday, May 16, 2007.

Summary: Petitioner proved by clear and convincing evidence that Respondent pleaded nolo contendre to felony motor vehicle insurance fraud, and therefore her license should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL ) )

SERVICES, )

)

Petitioner, )

) Case No. 07-0687PL

vs. )

)

COURTNEY PRINCE WALKER, )

)

Respondent. )

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on March 19, 2007, via video-teleconference in Tallahassee and

Orlando, Florida, before Lawrence P. Stevenson, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Bruce Pelham, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

For Respondent: Thomas D. Sommerville, Esquire

Muller & Sommerville, P.A.

1150 Louisiana Avenue, Suite 2

Post Office Box 2128

Winter Park, Florida 32790-2128

STATEMENT OF THE ISSUES

Whether Respondent, a licensed general lines agent,

committed the offenses alleged in the Administrative Complaint

and, if so, what penalties should be imposed.

PRELIMINARY STATEMENT

On November 27, 2006, Petitioner, the Department of

Financial Services (the "Department"), filed an Administrative

Complaint against Respondent, Courtney Prince Walker, alleging

that Respondent had violated Subsections 626.611(7), (9), (11),

and (14) and Subsection 626.621(3), Florida Statutes (2006).

Respondent timely challenged the allegations of the

Administrative Complaint, and the matter was referred to the

DOAH and scheduled for hearing.

Count I of the Administrative Complaint alleged certain

facts pertaining to a plea of nolo contendere entered by

Respondent in 2005 to a charge of false and fraudulent motor

vehicle insurance application, which is a third-degree felony

pursuant to Section 817.236, Florida Statutes (2005). Count I

charged Respondent with the following violations of the Florida

Insurance Code: "demonstrated lack of fitness or

trustworthiness to engage in the business of insurance," in

violation of Subsections 626.611(7) and (9), Florida Statutes

(2006); and "having been found guilty of or having pleaded

guilty or nolo contendere to a felony or a crime punishable by

imprisonment of one year or more under the law of the United

States of America or of any state thereof or under the law of

any other country which involves moral turpitude, without regard

to whether a judgment of conviction has been entered by the

court having jurisdiction of such cases," in violation of

Subsection 626.611(14), Florida Statutes (2006).

Count II of the Administrative Complaint alleged that

Respondent failed to notify the Department within 30 days of

doing so that she had entered a plea of nolo contendere in the

criminal proceeding as required by Subsection 626.621(11),

Florida Statutes (2006), and, therefore, further, demonstrated

lack of fitness or trustworthiness to engage in the business of

insurance, in violation of Subsection 626.611(7), Florida

Statutes (2006).

Count III of the Administrative Complaint alleged that

Respondent listed with the Department a business address at an

agency with which she was no longer employed. Count III charged

Respondent with the following violations of the Florida

Insurance Code: failure to "notify the department in writing

within 60 days after a change of name, residence address,

principal business street address, or mailing address," in

violation of Section 626.551, Florida Statutes (2006); and

"violation of any lawful order or rule of the department,

commission, or office," in violation of Subsection 626.621(3),

Florida Statutes (2006).

At the final hearing, the Department presented the

testimony of Betty Jane Hotaling and offered six exhibits, which

were accepted into evidence.

Respondent did not personally appear at the hearing or

testify, presented no witnesses, and offered no exhibits into

evidence.

A Transcript of the proceedings was filed on April 17,

2007. The Department timely filed its Proposed Recommended

Order on April 26, 2007. Respondent did not file a proposed

recommended order as of the date of this Recommended Order.

FINDINGS OF FACT

1. The Department is a licensing and regulatory agency of

the State of Florida charged with, among other duties, the

responsibility and duty to enforce the provisions of the Florida

Insurance Code, which consists of Chapters 624 through 632, 634,

635, 636, 641, 642, 648, and 651, Florida Statutes (2006). See

§ 624.307(1), Fla. Stat. (2006).

2. Respondent has been licensed in the State of Florida as

a general lines (property and casualty) insurance agent since

January 2001, with license identification number D063850.

3. On or about February 17, 2005, State Attorney Lawson

Lamar filed a one-count information in the Circuit Court of the

Ninth Judicial Circuit, Orange County, charging Respondent with

making a false and fraudulent motor vehicle insurance

application, a third degree felony pursuant to Section 817.236,

Florida Statutes (2005). Respondent was accused of having pre-

dated an application for insurance in order to illegally collect

insurance proceeds. On or about October 25, 2005, Respondent

entered a plea of nolo contendere to the charge. Adjudication

of guilt was withheld, and Respondent was placed on probation

for a period of 18 months and ordered to perform 50 hours of

community service and pay restitution to the victim.

4. The evidence presented was insufficient to demonstrate

that Respondent failed to inform the Department of her nolo

contendere plea as required by Subsection 626.621(11), Florida

Statutes (2006), or that she listed with the Department a

business address at an agency with which she was no longer

employed in violation of Section 626.551, Florida Statutes

(2006).

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. § 120.57(1), Fla. Stat. (2006).

6. License revocation and discipline proceedings are penal

in nature. The burden of proof on the Department in this

proceeding was to demonstrate the truthfulness of the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

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

7. The "clear and convincing" standard requires:

[T]hat 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.

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

The findings in this case were made based on the standard set

forth in Osborne Stern and Ferris .

8. Section 626.611, Florida Statutes (2006), provides for

compulsory discipline of a license as follows, in relevant part:

The department shall deny an application

for, suspend, revoke, or refuse to renew or

continue the license or appointment of any

applicant, agent, title agency, adjuster,

customer representative, service

representative, or managing general agent,

and it shall suspend or revoke the

eligibility to hold a license or appointment

of any such person, if it finds that as to

the applicant, licensee, or appointee any

one or more of the following applicable

grounds exist:

* * *

(7) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance.

* * *

(9) Fraudulent or dishonest practices in

the conduct of business under the license or

appointment. [1]

* * *

(14) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by imprisonment

of 1 year or more under the law of the

United States of America or of any state

thereof or under the law of any other

country which involves moral turpitude,

without regard to whether a judgment of

conviction has been entered by the court

having jurisdiction of such cases.

9. Section 626.621, Florida Statutes (2006), provides for

the discretionary discipline of a license as follows, in

relevant part:

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

exist under circumstances for which such

denial, suspension, revocation, or refusal

is not mandatory under s. 626.611:

(1) Any cause for which issuance of the

license or appointment could have been

refused had it then existed and been known

to the department.

(2) Violation of any provision of this code

or of any other law applicable to the

business of insurance in the course of

dealing under the license or appointment.

* * *

(8) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by imprisonment

of 1 year or more under the law of the

United States of America or of any state

thereof or under the law of any other

country, without regard to whether a

judgment of conviction has been entered by

the court having jurisdiction of such cases.

* * *

(11) Failure to inform the department in

writing within 30 days after pleading guilty

or nolo contendere to, or being convicted or

found guilty of, any felony or a crime

punishable by imprisonment of 1 year or more

under the law of the United States or of any

state thereof, or under the law of any other

country without regard to whether a judgment

of conviction has been entered by the court

having jurisdiction of the case.

10. Count I of the Amended Administrative Complaint

alleged that Respondent's plea established the following

violations of the Florida Insurance Code:

(a) Demonstrated lack of fitness or

trustworthiness to engage in the business of

insurance. [§§ 626.611(7) and (9), Fla.

Stat. (2006)];

(b) Having been found guilty of or having

pleaded guilty or nolo contendere to a

felony or a crime punishable by imprisonment

of 1 year or more under the law of the

United States of America or of any state

thereof or under the law of any other

country which involves moral turpitude,

without regard to whether a judgment of

conviction has been entered by the court

having jurisdiction of such cases.

[§ 626.611(14), Fla. Stat. (2006)].

11. The Department established by clear and convincing

evidence that Respondent pled nolo contendere to a felony

involving fraud in an application for motor vehicle insurance, a

crime directly relating to Respondent's insurance license and

the conduct of the business of insurance. It is concluded that

Respondent's criminal record establishes her lack of fitness or

trustworthiness to engage in the business of insurance.

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

in relevant part:

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

has been found guilty of or had pleaded

guilty or nolo contendere to, a felony or a

crime punishable by imprisonment of 1 year

or more under the law of the United States

of America or of any state thereof or under

the law of any other country, which is a

crime involving moral turpitude or is a

crime involving breach of trust or

dishonesty, the penalties are as follows:

(a) If the conduct directly relates to

activities involving the business of

insurance, the penalty shall be

revocation. . . .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that:

The Department enter a final order finding Respondent

guilty of violating Subsections 626.611(7) and (14), Florida

Statutes (2006), as alleged in Count I of the Administrative

Complaint, and revoking Respondent's licensure.

DONE AND ENTERED this 16th day of May, 2007, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of May, 2007.

ENDNOTE

1/ A single act or criminal conviction may demonstrate "lack of

fitness or trustworthiness" under Subsection 626.611(7), F.S.

(2006), but is insufficient to prove "fraudulent or dishonest

practices," which implicates multiple acts. Weiner v.

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

(Fla. 1st DCA 1997). Thus, the allegations here are

insufficient to establish a violation of Subsection 626.611(9),

Florida Statutes (2006).

COPIES FURNISHED :

Bruce Pelham, Esquire

Department of Financial Services

612 Larson Building

200 East Gaines Street

Tallahassee, Florida 32399-0333

Thomas D. Sommerville, Esquire

Muller & Sommerville, P.A.

1150 Louisiana Avenue, Suite 2

Post Office Box 2128

Winter Park, Florida 32790-2128

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Honorable Alex Sink, Chief Financial Officer

Department of Financial 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 recommended order should be filed with the agency that

will issue the final order in this case.