08-006332PL Department Of Financial Services vs. Juan Rodriguez Status: Closed Recommended Order on Thursday, May 28, 2009.

Summary: Petitioner demonstrated a violation of Section 626.611(14), Florida Statutes, but mitigating factors support a reduction in penalty to a four-month suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

FINANCIAL SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 08-6332PL

)

JUAN RODRIGUEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 13, 2009, a duly-noticed hearing was held in

Tallahassee, Florida, before Lisa Shearer Nelson, Administrative

Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William Gautier Kitchen, Esquire

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

For Respondent: Lisa M. Hurley, Esquire

Willard Hurley, LLC

Post Office Box 1007

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent committed

the acts alleged in the Administrative Complaint and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On November 19, 2008, the Department of Financial Services

(Petitioner or Department) filed a two-count Administrative

Complaint against Respondent, alleging that Respondent pled nolo

contendere to two felonies: the criminal use of personal

identification and an offense against intellectual properties.

Based upon this plea, Count I of the Administrative Complaint

alleges that Respondent violated Section 626.611(14), Florida

Statutes (pleading nolo contendere to a felony involving moral

turpitude), and Section 626.621(8), Florida Statutes (pleading

nolo contendere to a felony), Florida Statutes. Count II

charged Respondent with failing to inform the Department of the

nolo plea within 30 days, in violation of Section 626.621(2) and

(11), Florida Statutes.

On December 12, 2008, Respondent filed a Petition for Formal

Administrative Hearing and on December 19, 2008, the Department

referred the case to the Division of Administrative Hearings for

assignment of an administrative law judge.

The matter was originally scheduled for March 16, 2009.

Based upon a request of the parties, the case was rescheduled for

April 13, 2009, and proceeded as scheduled. At hearing,

Petitioner presented the testimony of Respondent and Petitioner's

Exhibit 1 was accepted into evidence. Respondent submitted

Respondent's Exhibits 1-7, all character references, without

objection by the Department. The proceedings were recorded and

the Transcript was filed with the Division of Administrative

Hearings April 27, 2009. Both parties timely submitted Proposed

Recommended Orders that have been carefully considered in the

preparation of this Recommended Order. Unless otherwise

indicated, all references are to the 2008 codification of the

Florida Statutes.

FINDINGS OF FACT

1. During all times relevant to this proceeding, Respondent

has been licensed as an adjuster by the Department. Respondent

has also been licensed in a similar capacity in Texas.

2. Respondent has never been the subject of a disciplinary

proceeding previously.

3. On March 24, 2008, Respondent pled nolo contendere to

one count of criminal use of personal information and one count

of offense against intellectual property. Both offenses are

felonies, and adjudication was withheld for each count.

4. As a result of this plea, Respondent was sentenced to

three years probation, 200 hours of community service, required

to submit to anger management counseling, and required to pay

costs, $2,121.36 in restitution to the Department for its

investigative costs, and $1,258.50 in restitution to the victim,

Thuy Daoheuang, for a missing ring. $400.00 of the amount due

the victim was paid at the time of the plea, and payments of

$200.00 each to the Department and to the victim were to be paid

monthly. The terms of the plea allowed for early termination of

probation if all conditions of probation were met.

5. The conduct giving rise to the charges against

Respondent, and ultimately resulting in his pleas to the criminal

charges, stemmed from the termination of his relationship with a

former girlfriend, Thuy Daoheuang.

6. Ms. Daoheuang was also an insurance adjuster. After the

termination of their relationship, Respondent accessed her

insurance licensure information while performing continuing

education checks for persons in his firm. Because of his

relationship with her, Respondent knew the personal information

necessary to have access to her profile. While viewing

Ms. Daoheuang's information, Respondent selected the option to

cancel her license.

7. Respondent's action was impulsive and although he

testified that he regretted it immediately, he could not "undo"

the selection. However, he did not take any steps to call the

Department and report the action or ask that it be corrected.

8. Respondent's action resulted in the cancellation of

Ms. Daoheuang's insurance license. The Department mailed her a

letter indicating that her license had been canceled and upon her

inquiry, reinstated the license. There was no evidence presented

to indicate that her ability to transact insurance was disrupted.

9. Respondent was contacted by investigators from the

Department regarding the cancellation of Ms. Daoheuang's license.

He admitted his actions and cooperated fully with their

investigation.

10. Respondent's employer was informed of the conduct and

the resultant criminal action. The company withheld Respondent's

annual raise in salary, but did not penalize him otherwise. He

remains employed with the same company.

11. The Department was integrally involved in the

prosecution of Respondent, and Respondent has been making monthly

payments to the Department by check since the acceptance of his

plea, as required by his sentence.

12. Respondent also completed the anger management course

and has been remorseful for his actions. The criminal proceeding

has been a source of great humiliation and Respondent has

accepted responsibility for his actions.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

14. The Department seeks to revoke Respondent's license as

an insurance adjuster. It therefore has the burden of proving

the allegations of the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

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

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

15. Count I of the Administrative Complaint asserts a

violation of Sections 626.611(14) and 626.621(8), Florida

Statutes. Count II charges Respondent with failure to notify of

the Department of pleading nolo contendere to any crime

punishable by imprisonment of 1 year or more, in violation of

Subsections 626.621(2) and (11), Florida Statutes. Section

626.611(14) provides:

626.611 Grounds for compulsory refusal,

suspension, or revocation of agent's, title

agency's, adjuster's . . . license or

appointment. 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, . . . 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:

* * *

(14) Having been found guilty of or having

pleaded guilty or nolo contendere to a felony

or 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.

16. Subsections 626.621(2), (8), and (11), Florida

Statutes, provide:

626.21 Grounds for discretionary refusal,

suspension, or revocation of agent's,

adjuster's, . . . license or appointment.

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, . . . 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:

* * *

(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 a 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.

17. There is no dispute that Respondent pled nolo

contendere to two offenses that are third-degree felonies in the

State of Florida. What is not as clear is whether either of

these felonies would be considered a crime of moral turpitude.

If they are considered crimes of moral turpitude, then Respondent

is in violation of Section 626.611(14), Florida Statutes, which

mandates suspension or revocation of his license. If they are

not crimes of moral turpitude, then he is guilty of violating

Section 626.621(8), Florida Statutes, where suspension or

revocation is discretionary.

18. Moral turpitude has been defined by the Supreme Court

of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated." State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

19. The Department has also adopted rules that, in part,

define those offenses that would be considered crimes of moral

turpitude. Florida Administrative Code Rule 69B-231.030(4)

defines "crimes involving moral turpitude" as "each felony crime

identified in subsection 69B-211.042(21), F.A.C., and each felony

crime not identified in 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."

20. Florida Administrative Code Rule 69B-211.042(21) splits

crimes into three different categories. Class A crimes are

considered crimes of moral turpitude. Class B and C crimes are

not. While the lists are extensive, neither of the crimes for

which Respondent entered a plea are included. Class A crimes

include crimes such as submitting false insurance claims or

applications; crimes relating to workers' compensation insurance;

theft or other dishonest dealings with premiums or claims money;

making false reports to insurance regulatory officials; grand

theft or embezzlement from an insurance company or agency; armed

robbery (face-to-face theft by threat of force or force);

extortion; bribery; misuse of public office; obstructing justice;

treason against the United States, or a state, district, or

territory; abuse of elderly or disabled person; altering public

documents; forgery; perjury; racketeering; witness tampering;

child abuse; fraud; tax evasion; shoplifting; robbery; unlawful

possession of a postal key; securities fraud; defrauding the

government; conspiracy; murder in all degrees; aggravated battery

or assault; sexual battery or molestation of a minor; carrying a

concealed weapon; and kidnapping.

21. Class B crimes include crimes such as manslaughter,

simple assault, simple battery, gambling, possession of burglary

tools, resisting arrest with violence; and criminal mischief.

Class C crimes include public drunkenness; driving under the

influence; trespassing; disorderly conduct; solicitation of

prostitution; bigamy; sale of fireworks; cruelty to animals;

personal use of or possession of controlled substances; domestic

disturbance not involving violence; and illegal possession of a

weapon.

22. With the exception of unlawful possession of a postal

key, the relationship between the listed crimes in Class A and

the concept of moral turpitude is clear. Many involve deliberate

acts for the purpose of financial gain; others involve actions

where the victims are injured either physically or financially.

23. Rule 69B-231.030(4) requires that where the crime is

not listed, it must be compared to those crimes that are listed

in the rule. Respondent contends that the crimes at issue here

are comparable to domestic disturbance not involving violence, a

Class C crime. Petitioner contends that the appropriate

comparison is to crimes such as making a false report to

insurance regulatory officials; altering public documents, or any

of the other crimes in Class A involving fraud or false

information.

24. For whatever temporary period before Ms. Daoheuang was

notified, Respondent's actions had the effect of altering a

public document, or publicly available information, i.e. ,

Ms. Daoheuang's licensure information. Altering a public

document is a Class A crime. Fla. Admin. Code R. 69B-

211.042(21)(m). Accordingly, it is found that Respondent has

committed a crime of moral turpitude in violation of Section

626.611(14), as charged in Count I.

25. Count II charges Respondent with failure to notify the

Department of pleading nolo contendere of any crime punishable by

imprisonment of one year or more, in violation of Section

626.621(2) and (11), Florida Statutes. Here, the undisputed

evidence is that Respondent was interviewed by Department

investigators during the investigation of this matter, and

cooperated fully with them. Part of his sentence involved

payment of restitution on a monthly basis to the Department, and

the undisputed evidence is that he has complied with this

requirement.

26. Respondent readily admits that he did not provide a

separate writing informing the Department of the existence of

plea (about which it clearly knew and had input in crafting).

However, the burden is on the Department to show the lack of

written notice. In light of the testimony that Respondent has

paid the Department by check on a monthly basis the restitution

due under the plea agreement, the Department has not proven that

Respondent did not provide a writing that informed it of the plea

agreement and resultant obligation to the Department. Therefore,

the Department has failed to prove the violations in Count II of

the Administrative Complaint.

27. The Department has adopted several rules that must be

consulted in determining the appropriate penalty for a violation

of Section 626.611, Florida Statutes. The disciplinary

guidelines rule, Florida Administrative Code Rule 69B-231.080,

refers to Rule 69B-231.150, which is entitled "Criminal

Proceedings. That rule provides in pertinent part:

(3) 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 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.

(b) If the conduct indirectly relates to the

business of insurance or involves dishonesty

or breach of trust, such as theft of money or

property, or mishandling or misappropriation

of money, the penalty shall be a 12-month

suspension.

(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 suspension.

(d) 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 suspension.

28. The conduct at issue in this case best fits under

Subsection (3)(d) of the rule. The conduct did not involve any

insurance transaction and did not involve any funds in any way.

Respondent was able to access the information on Ms. Daoheuang's

insurance profile not because he was an insurance adjuster, but

because he had knowledge of her license number and birthdate as a

result of their previous personal relationship. Therefore, the

presumptive penalty would be a six-month suspension.

29. Florida Administrative Code Rule 69B-231.160 identifies

aggravating and mitigating factors to be applied in reaching the

final penalty to be imposed. This rule provides in pertinent

part:

(2) For penalties assessed under Rule 69B-

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

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

(a) Number of years that have passed since

criminal proceeding;

(b) Age of licensee at time the crime was

committed;

(c) Whether licensee served time in jail;

(d) Whether or not licensee violated

criminal probation;

(e) Whether or not licensee is still on

criminal probation;

(f) Whether or not licensee's actions or

behavior resulted in substantial injury to

the victim;

(g) Whether or not restitution was, or is

being timely paid;

(h) Whether or not licensee's civil rights

have been restored; and

(i) Other relevant factors.

30. Subsection (1) of the rule identifies additional

factors considered in cases not involving criminal actions.

Those factors relevant to these proceedings include the

cooperation with the Department and lack of previous disciplinary

orders. Fla. Admin. Code R. 69B-231.160(1)(h) and (l).

31. The time since the incident has been relatively brief,

in that the plea was entered in March 2008. However, Respondent

did not serve any time in jail, has not violated his criminal

probation and has faithfully paid the restitution awards on a

timely basis. The conduct giving rise to the criminal proceeding

did not result in substantial injury to the victim. In addition,

Respondent cooperated fully with the Department's investigation

and has never had disciplinary action against him before.

32. There is no question that Respondent acted rashly

and with disregard for the consequences to Ms. Daoheuang.

His actions were simply wrong. He is fortunate that no further

damage resulted from his conduct. However, there is no evidence

that Respondent has ever violated the trust that his clients have

placed in him, and his employer has retained him despite his

actions. Respondent has paid dearly for one impulsive act. To

revoke his license or even suspend it for six months is a penalty

that is simply disproportionate to the crime.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered finding that Respondent has

violated Section 626.611(14), Florida Statutes, as alleged in

Count I of the Administrative Complaint;

Dismissing Count II of the Administrative Complaint; and

Suspending Respondent's license as an adjuster for a period

of four months.

DONE AND ENTERED this 28th day of May, 2009, in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of May, 2009.

COPIES FURNISHED:

William Gautier Kitchen, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

Lisa M. Hurley, Esquire

Willard Hurley, LLC

517 East College Avenue

Post Office Box 10007

Tallahassee, Florida 32302

Tracey Beal, Agency Clerk

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399-0390

Benjamin Diamond, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0307

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.