09-004675PL Department Of Financial Services vs. Angela Laura Haber Status: Closed Recommended Order on Wednesday, February 1, 2012.

Summary: Petitioner proved violation of sections 626.611(14) and 626.621(8).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF )

FINANCIAL SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 09 - 4675PL

)

ANGELA LAURA HABER, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 16, 2011 , a duly - noticed hea ring was held by

video teleconferencing with sites in Jacksonville and

Tallahassee , Florida , before Lisa Shearer Nelson , an

Administrative Law Judge assigned by the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Robert Alan Fox, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

For Respond ent: Donald E. Pinaud, Jr., Esquire

Kattman & Pinaud, P.A.

4069 Atlantic Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

section 626.611(14) or 626.621(8), Flo rida Statutes (2007), and

if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On June 19, 2009, Petitioner, the Department of Financial

Services (Petitioner or the Department), filed an Administrative

Complaint that charged Respondent, Laura Habe r (Respondent or

Ms. Haber), with violating section s 626.611(14) and 626.621(8).

The allegations were based upon Respondent's nolo contendere

plea to second - degree grand theft. Respondent disputed the

allegations in the Administrative Complaint and reque sted a

hearing pursuant to section 120.57(1), Florida Statutes. On

August 26, 2009, the case was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

On September 1, 2009, Respondent filed a motion to stay t he

proceedings, asserting that she had agreed to the nolo

contendere plea based on the advice of counsel that such a plea

would not affect her insurance license; that new counsel had

moved to withdraw the plea in the criminal proceeding, and the

trial cour t had denied the motion; and that the trial court's

order denying the motion to set aside the nolo plea was under

appeal. The Department did not object to the Motion, and b y

Order dated September 3, 2009, the case was placed in an abated

status.

The ca se remained in abeyance, with periodic Status Reports

required, until Petitioner notified the Division on May 3, 201 1 ,

that Respondent's appeal in the criminal proceeding had been

affirmed . On May 9, 2011, the parties were ordered to provide

dates for hea ring , and o n May 20, 2011, a Notice of Hearing was

issued scheduling the case to be heard on August 10, 2011.

On August 9, 2011, Respondent filed a unopposed Motion for

Continuance, based on an emergency health crisis in Respondent's

counsel's family. Th e Motion was granted , the case rescheduled

for November 16, 2011, and the case proceeded as scheduled. At

hearing, Petitioner submitted the testimony of Laura Haber,

Matthew Guy, and Beth Allen. Petitioner's Exhibits numbered 1,

1a, 2 - 4, 4a, 5, 6, 6a, 6b , and 7 - 9 were admitted into evidence.

Respondent testified on her own behalf and submitted the

testimony of Jan Allen . Respondent's Exhibits numbered 1 - 5 were

admitted into evidence, and Respondent was granted until

December 30 to file a copy of the Cou rt Order Terminating

Respondent's Criminal Probation . She did so on November 22,

2011. The Order is admitted as Respondent's Exhibit 6.

At the Respondent's request, the deadline for submitting

proposed recommended orders was set at December 20, 2011 . The

Transcript was filed with the Division on December 6, 2011, and

Respondent moved to extend the time for filing proposed

recommended orders, and the deadline was extended to January 9,

2012. Both parties timely filed their Proposed Recommended

Order s, which have been carefully considered in the preparation

of this Recommended Order. Attached to Petitioner's Proposed

Recommended Order are documents that were not produced at

hearing and are not exhibits in this case. Those documents have

not been con sidered.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of the insurance industry in the State

of Florida.

2. Respondent is licensed as a variable annuity and health

agent, a life agent, a life and health age nt, a health agent, a

legal expense agent, and an independent adjuster. She holds

license number A107405, which is presently valid.

3. Respondent was the neighbor of an elderly couple named

Paul and Rose Weinberg. As their health declined, she assisted

them with their financial affairs.

4. Paul Weinberg was diagnosed with Parkinson's Disease,

and Rose had medical issues that caused her to be infirm.

Respondent's assistance became labor intensive and time

consuming. She obtained a power of attorney fro m the Weinbergs

to facilitate the handling of their affairs , and at some point

her name was placed on at least Rose Weinberg's bank account and

credit card .

5. Paul Weinberg died about four years after Respondent

began assisting the couple. After Paul's death, Respondent

continued to provide assistance to Rose for an additional six -

year period . She stopped working and spent her time taking care

of Rose. Respondent testified that during this time, Rose

started "paying" her for her efforts. These payment s were not

on a weekly basis, but made by Respondent periodically making a

lump sum payment toward her own bills with Rose's funds.

6. At some time after Paul's death, Rose was moved to

assisted living facility. Respondent testified that as Rose's

health declined and it was clear she would need more intensive

care, she embarked on a Medicaid spend - down, in order to reduce

the amount of Rose's funds so that she could qualify for

Medicaid funding. Whether for this purpose or for some less

altruistic motive , Respondent transferred $50 , 000 from a joint

account she held with Rose to an account in her own name.

7. Although Respondent claimed that the transfer of funds

was performed pursuant to an agreement entered before Rose's

health began to decline, she p resented no written agreement of

any kind to support her claim , and presented no explanation how

this transfer of funds would have been permissible under federal

law . S he also present ed no written agreement to support the

statement that the payment of her bills out of Rose ' s funds was

to compensate her for the assistance she provided to Rose.

8. On December 28, 2007, the State Attorney for the

Nineteenth Judicial Circuit in and for St. Lucie County filed an

information against Respondent, charging h er with third - degree

grand theft in violation of section 812.014, Florida Statutes

(2006); fraudulent use of a credit card, in violation of section

817.61, a third - degree felony; criminal use of personal

identification information in violation of section

8 17.568(2)(a), a third - degree felony; and exploitation of an

elderly or disabled adult while in a position of trust, in

violation of section 825.103(1)(a) and (2)(b), a second - degree

felony.

9. Respondent hired T. Charles Shafer and his associate,

Beth All en , as counsel to represent her in the criminal

proceedings. As part of their representation, there was some

discussion of entering into a plea to resolve the criminal

charges. During these discussions, Respondent inquired

repeatedly whether any plea dea l would have a negative effect on

her insurance license.

10. Mr. Shafer and Ms. Allen advised her several times to

seek advic e from someone specializing in regulatory matters to

address this issue. However, in response to her concerns

regarding her lic ense, Ms. Allen called the Department of

Financial Services to inquire about the ramifications of a nolo

contendere plea. She presented the scenario as a hypothetical.

Ms. Allen could not remember the name of the person to whom she

spoke, and what she wa s told is in dispute. Ultimately, what

she was told is not particularly relevant. After the telephone

call, Mr. Shafer wrote Respondent a letter which stated in part:

Dear Ms. Haber:

I am in receipt of your September 11 e - mail

correspondence to Ms. Alle n. I understand

your concern over how a plea and sentencing

may affect your occupation, but as I advised

in our last several phone calls, I do not

know what collateral consequences such a

sentence will have on your profession; I can

only tell you with cer tainty how it will

affect your status relative to being able to

one day filing an action to seal your

records in this matter.

However, pursuant to your request, Ms. Allen

found a telephone number on the website you

provided. She called the Florida Depart ment

of Services help - line. She asked the person

she spoke to what would happen to your

license as a result of a no contest plea to

a felony theft with a withhold of

adjudication and probation. Their

representative advised that since you

already have a l icense, you would not be

suspended or placed under review; however,

it is your duty to notify the Bureau of

Licensure of any law enforcement action,

such as your current predicament. Please be

advised that neither I nor Ms. Allen vouch

for the accuracy of this information, and,

as we have suggested repeatedly in past

conferences, insist that you personally

validate it. ( Emphasis added.)

11. To give the type of answer described in the letter

would be contrary to Department policy. Whether or not the

d escription of the phone call contained in the letter is

accurate, given Mr. Shafer's express qualification and directive

that the information be separately verified, it was unreasonable

for Respondent to rely upon it. By her own admission, she took

no act ion to independently verify the information in the letter.

12. Respondent pleaded nolo contendere to one count of

second - degree grand theft .

13. Respondent met with her attorneys on a Sunday at a

Dunkin Donuts restaurant before signing the plea agreem ent. At

that time, counsel went over the plea agreement with her, line

by line. Included in the plea agreement is the statement, "I

understand a conviction of a crime may cause me to lose local,

state or federal licenses and can prevent me from getting

c ertain licenses. A conviction of a felony will cause me to

los e the right to vote and my right to own or possess a firearm

or ammunition."

1 4 . At the plea hearing on September 15, 2008 , the trial

judge questioned Respondent regarding her change of plea. In

the plea colloquy, the following occurred:

THE COURT: Okay. Please tell me your name.

MS. HABER: Angela Haber.

THE COURT: And how old are you?

MS. HABER: Forty - two.

THE COURT: And how far have you gone in

school?

MS . HABER: Some college.

THE C OURT: Okay. And you read, write and

understand English?

MS. HABER: Yes.

THE COURT: Are you -- don't take offense at

any of these questions, I ask them of

everyone because sometimes I'll go through

this and if you don't ask these questions

someone wil l come back later and say, "I was

under the influence of drugs and I don't

understand English when I entered my plea."

Even though it's clear that they were. So

you understand English?

MS. HABER: Yes sir.

THE COURT: And you're not under the

influence of alcohol or any illegal

narcotics?

MS. HABER: No sir.

THE COURT: Okay. Are -- did -- did you

fully read this plea agreement from

beginning to end?

MS. HABER: Yes.

THE COURT: These are initials at the bottom

of each page and a signature at the end?

MS. HABER: Yes.

THE COURT: And did you fully understand

each and every provision including the

rights you're giving up by entering this

plea?

MS. HABER: Yes.

THE COURT: Okay. You are charged with

second degree grand theft, that's a second

de gree felony, its punishable by up to

fifteen years in prison, a ten thousand

dollar fine or both. You are also charged

with fraudulent use of a credit card,

criminal use of personal identification and

exploitation of elderly or disabled adult,

position of trust. And those charges would

be dropped or dismissed at the time of

sentencing. But it ' s my understanding that

you wish to enter a plea to count one,

second degree grand theft. Is that what you

wish to do?

MS. HABER: Yes.

* * *

THE COURT: Are you entering this plea

because you're guilty or because you feel

it's in your best interest?

MS. HABER: I feel it's in my best interest.

THE COURT: Okay. And is there any

objection by the defense to the court taking

judicial notic e of the complaint affidavit

for factual basis?

MR. SHAFER: N o sir.

THE COURT: And both sides stipulate there's

a factual basis for the plea?

MR. SHAFER: Yes sir, for the plea.

MS. BALDREE: Yes sir. And we would add

that additionally, that this of fense

occurred in Saint Lucie County.

THE COURT: Ma'am, are you entering this

plea freely and voluntarily?

MS. HABER: Yes.

THE COURT: Has anyone threatened you or

forced you or coerced you to enter this

plea?

MS. HABER: No.

THE COURT: Has anyon e mistreated you or

misled you to enter this plea?

MS. HABER: No.

THE COURT: Has anyone made any promises to

you other than what's contained in this

petition ?

MS. HABER: No.

THE COURT: If they have you need to know

they're not binding on the court . Have you

had enough time to talk to your attorney?

MS. HABER: Yes.

THE COURT: Do you need more time to talk to

your attorney now in private?

MS. HABER: No.

THE COURT: Are you satisfied in all

respects with his advice and counsel?

MS. HABER: Ye s.

* * *

THE COURT: Do you understand you're giving

up your right to appeal all matters relating

to the judgment, including the issues of

guilt or innocence?

MS. HABER: Yes.

THE COURT: Do you understand that if you

are adjudic ated it would make you a

convicted felon and you would lose certain

civil rights?

MS. HABER: Yes.

* * *

THE COURT: Do you have any questions for

your attorney or the court concerning

anything about your c ase, this petition or

these proceedings?

MS. HABER: No.

THE COURT: Understanding everything we just

went over do you still want to enter this

plea?

MS. HABER: Yes.

THE COURT: Okay. I will accept the plea.

I find there's a factual basis for it. I

find the defendant does not appear to be

under the influence of drugs or alcohol at

this time. She appears to be aware of the

nature of the crime to which she has pled,

the consequences, her legal rights and the

plea recommendations. I find the plea is

freely and voluntarily entered upon a

knowing and intelligent waiver of rights.

. . .

15. Respondent was sentenced on November 14, 2008. At

that time, adjudication of guilt was withheld. She was placed

on probation for a period of ten years and orde red to make

restitution to Rose Weinberg in the am ount of $50,000 .

16. On April 17, 2009, Respondent filed a Motion for Post -

Conviction Relief and to Vacate Judgment Pursuant to Rule 3.850,

Fla. R. Crim. P. In the Motion, Respondent sought to withdraw

h er nolo plea, based upon ineffective assistance of counsel.

The basis for her claim was counsel's failure to advise her that

a nolo plea would have a negative effect on her professional

licensing.

17. On June 26, 2009, the Honorable Robert E. Belanger

e ntered a detailed Order Denying Defendant's Motion for Post

Conviction Relief. The Order states in pertinent part:

Defendant claims that she is entitled to

withdraw her plea because of her counsel's

deficient performance, i.e., in providing

affirmative mi sadvise concerning a

collateral matter. This is not even a close

call. The court finds the motion to be

totally devoid of merit.

* * *

The defense stipulated to a factual

basis for the charge, and the defendant

acknowledged that by entering a plea, she

was giving up any defenses to the offense

charged. Any defenses were abandoned when

she entered the plea. Stano v. State , 520

So. 2d 278 (Fla. 1988); Dean v. State , 580

So. 2d 808 (Fla. 3d DCA 1991).

Significantly, the cour t conducted a

detailed plea colloquy, asking the defendant

the required questions to ensure that the

plea was being entered freely, knowingly,

intelligently, and voluntarily. Defendant,

who was under oath, testified that she had

signed the plea form and w as aware of the

waiver of her various rights. She further

testified that she had sufficiently

discussed the change of plea with her

attorney and that no one had threatened her,

coerced her or mislead her into entering the

plea. She also confirmed that no one had

made any promises to her, except those

contained in the plea form.

A plea conference is not a meaningless

charade to be manipulated willy - nilly after

the fact; it is a formal ceremony, under

oath, memorializing a crossroads in the

case. What is said and done at a plea

conference carries consequences. . . .

18. Respondent appealed the trial court's order. On

April 13, 2011, the Fourth District Court of Appeal affirmed the

trial court decision. Haber v. State , 59 So. 3d 123 (Fla. 4th

DCA 2011 ). The Fourth District's mandate issued May 13, 2011.

19. Respondent paid $10,000.00 toward the required

restitution at the time of sentencing. On October 26, 2011,

Respondent moved to have her probation terminated upon payment

of $11,000.00 for restit ution. On that same day, the trial

court ordered that upon payment of the $11,000.00, the court

would enter an order terminating Respondent's probation, and the

balance of the amount owed by Respondent for restitution, i.e. ,

$15,552.86, would convert to a civil judgment. Respondent paid

the $11,000.00 plus court costs and on November 6, 2011, the

court entered the Order Terminating Probation.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1),

Florida Statutes (2011) .

2 1 . This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to suspend Respondent's

license as an insurance agent. Petit ioner bears the burden of

proof to demonstrate the allegations in the Administrative

Complaint by clear and convincing evidence. Dep 't of Banking &

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

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

2 2 . As stated by the Supreme Court of Florida,

Clear and convincing evidence requires that

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 lacking in confusion as

to the facts in issue. The evidence must be

of such a 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 Henson , 913 S o. 2d 579, 590 (Fla. 2005), (quoting

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

2 3 . The Administrative Complaint charges Respondent with

violating section s 626.611(14) and 626.621(8), which provide the

following:

626.611 Grounds for com pulsory refusal,

suspension, or revocation of agent's, title

agency's, adjuster's, customer

representative's, service representative's,

or managing general agent's license or

appointment. -- The department shall deny an

application for, suspend, revoke, or r efuse

to renew or continue the license or

appointment of any . . . agent , . . .

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 a ny 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 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.

* * *

626.621 Grounds for discretionary refusal,

suspension, or revocation of agent's,

adjuster's, customer representative's,

service representative's, or managing

general agent'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:

* * *

(8) Having be en 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 t o whether a

judgment of conviction has been entered by

the court having jurisdiction of such cases.

2 4 . The text of these provisions is readily available to

Respondent, and anyone else, for that matter. Respondent was

presumed to know the laws regula ting her profession, and both

the Florida Statutes and rules governing her profession

specifically address whether a plea of guilty or nolo contendere

for grand theft would subject Respondent to discipline. Fla.

B d . of Pharmacy v. Levin , 190 So. 2d 768, 7 70 (Fla. 1966);

Wallen v. Dep't of Prof'l Reg. , 568 So. 2d 975 (Fla. 3 d DCA

1990).

25. Respondent clearly pleaded nolo contendere to a

felony, for which adjudication was withheld. Both statutory

provisions authorize discipline for such a plea. Responde nt is,

however, accorded the opportunity to explain the circumstances

of her plea. Ayala v. Dep ' t of Prof ' l Reg . , 478 So. 2d 1116

(Fla. 1st DCA 1985). Respondent's explanation of her actions

only serves to confirm the factual basis for the plea.

2 6 . Th ere is no question that Respondent violated section

626.621(8) by virtue of her plea of nolo contendere to a felony.

This statute makes the imposition of a suspension or revocation

discretionary. Should Respondent be guilty of section

626.611(14), which requires a finding that the felony for which

she pleaded nolo contendere is a crime of moral turpitude, then

suspension or revocation of her licenses is mandatory.

2 7 . Generally, the Supreme Court of Florida has stated:

Moral turpitude involves the ide a 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 contrary

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.

State ex rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So.

660, 661 (Fla. 1933); Cambas v. Dep't of Bus. & Prof'l Reg. , 6

So. 3d 668, 670 (Fla. 5th DCA 2009). The Department has also

addressed what crimes it considers to be crimes of moral

turpitude by rule. Florida Administrative Code Rule 69B -

231.030(4) de fines crimes of "moral turpitude" to include "each

felony crime identified in subsection 69B - 211.042(21)," which in

turn expressly includes grand theft as a crime of moral

turpitude. Rule 69B - 211.042(21)(s).

2 8 . Moreover, even viewing the facts shown at hearing in

the light most favorable to Respondent, the crime for which she

pleaded nolo contendere is a crime of moral turpitude. She was

dealing with the funds of an elderly woman who could not care

for herself. As an insurance agent, she should have known the

importance of written documents to memorialize agreements

related to money, especially where she was acting in a position

of trust. Yet, she paid her own bills out of the funds of

Ms. Weinberg, and produced no written agreement that would allow

such payments. She transferred $50,000.00 to a bank account in

her own name, presuma bly to accomplish a Medicaid spend - down.

Once again, she produced no written agreement that would have

allowed for such a transfer, and no satisfactory explanation for

what would happen to the funds once transferred to her own name.

The Fifth District de termined in Hamilton v. State , 447 So. 2d

1008, 1008 - 1009 (Fla. 5th DCA 1984), that grand theft is a crime

of dishonesty, and such a determination is borne out in this

case.

2 9 . Respondent is thus guilty of violating both section

626.611(14) and sectio n 626.621(8).

30 . Where both violations are proven, section 626.611

governs the penalty to be imposed. Dyer v. Dep't of Ins. &

Treas. , 585 So. 2d 1009, 1014 (Fla. 1st DCA 1991). For a

violation of section 626.611(14), the penalty identified by rule

is revocation of her licenses and appointments. Rule 69B -

231.150(2).

3 1 . The Department has also adopted a rule that identifies

aggravating and mitigating factors to be considered when

imposing a disciplinary penalty. Pursuant to rule 69B -

231.160(2), thes e factors includ e the number of years that have

passed since the criminal proceeding; the age of the licensee

when the crime was committed; whether or not the licensee

violated criminal probation or is still on criminal probation;

whether the licensee's ac tions resulted in substantial injury to

the victim; whether restitution was or is being timely paid; and

whether the licensee's civil rights have been restored.

3 2 . The judgment and sentence in Respondent's case was

rendered in November 2008, just thre e years ago. She was 42 at

that time. She did not serve time in jail, and her criminal

probation was terminated early. While she has satisfied a large

portion of the restitution due to Ms. Weinberg, there was not

evidence that she has satisfied that por tion of the restitution

that was converted to a civil judgment. The victim, an elderly

woman unable to care for herself, was deprived of the use of a

substantial sum of money, and no evidence was presented to

indicate that Respondent's civil rights have b een restored.

3 3 . Consideration of these factors does not tilt the

scales in favor of a downward departure from the guideline

penalty.

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED that the Departm ent of Financial Services enter

a Final Order finding that Respondent has violated sections

626.611(14) and 626.621(8), and revoking Respondent's licenses

and appointments issued or granted under or pursuant to the

Florida Insurance Code.

DONE AND ENTERED this 1s t day of Febr uary, 2012, 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1s t day of Febr uary, 2012.

COPIES FURNISHED:

Donald E. Pinaud, Jr., Esquire

Kattman & Pinaud, P.A.

4069 Atlantic Boulevard

Jacksonville, Florida 32207

Robert Alan Fox, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399

Julie Jones, Agency Clerk

Department of Financial Servi ces

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399

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.