FL E DFEB 1 1 2020

Docketed t._áCHIEF FINANCIAL OFFICER

JIMMY PATRONISSTATE OF FLORIDA

DEPARTMENT OF FINANCIAL SERVICES,DIVISION OF INSURANCE AGENT ANDAGENCY SERVICES,

Petitioner,CASE NO.: 245069 -19 -AG

V.

JONATHAN STERBENS FORD,

Respondent.

FINAL ORDER

THIS CAUSE carne on for consideration of and for final agency action on a

Written Report and Recommended Order.

After reviewing the record, including admitted exhibits, considering applicable

law, and otherwise being fully apprised in all material premises, the Written Report and

Recommended Order is hereby adopted with the following modification: the phrase "all

of Respondent's licenses" under the Recommendation section of the Written Report and

Recommended Order is replaced with "Respondent's license ".

Accordingly, Mr. Ford's license and appointments are revoked.

DONE and ORDERED this 11) day of P el3r0 6. , , 2020.

Peter PenrodChief of Staff

igitally signed by Agency ClerkDate: 2020.02.12 10:32:27 -05'00'

NOTICE OF RIGHT TO APPEAL

A party adversely affected by this Final Order may seek judicial review as providedin section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.190. Judicialreview is initiated by filing a notice of appeal with the Agency Clerk, and a copy of thenotice of appeal, accompanied by the filing fee, with the appropriate district court ofappeal. The notice of appeal must conform to the requirements of Florida Rule of AppellateProcedure 9.110(d), and must be filed (i.e., received by the Agency Clerk) within thirty daysof rendition of this final order.

Filing with the Department's Agency Clerk may be accomplished via U.S. Mail,express overnight delivery, hand delivery, facsimile transmission, or electronic mail. Theaddress for overnight delivery or hand delivery is Julie Jones, DFS Agency Clerk,Department of Financial Services, 612 Larson Building, 200 East Gaines Street,Tallahassee, Florida 32399 -0390. The facsimile number is (850) 488 -0697. The emailaddress is Julie.Jones @myfloridacfo.com.

Copies furnished to:

Jonathan Sterbens Ford18210 Sandy Pines CircleNorth Fort Myers, Florida 33917jonathanford72@gmail.com

Danijela JanjicSenior AttorneyDepartment of Financial Services200 East Gaines StreetTallahassee, Florida 32399 -0333Danijela.Janjic@myfloridacfo.com

Kathy GatzlaffHearing OfficerDepartment of Financial Services200 East Gaines StreetTallahassee, Florida 32399 -0333Kathy.Gatzlaff@myfloridacfo.com

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STATE OF FLORIDADEPARTMENT OF FINANCIAL SERVICES

DEPARTMENT OF FINANCIAL SERVICES,DIVISION OF INSURANCE AGENT ANDAGENCY SERVICES,

Petitioner,

v.

JONATHAN STERBENS FORD,

Respondent.

CASE NO.: 245069 -19 -AG

WRITTEN REPORT AND RECOMMENDED ORDER

THIS CAUSE came before Hearing Officer Kathy Gatzlaff to conduct a hearing not

involving disputed issues of material fact pursuant to sections 120.569 and 120.57(2), Florida

Statutes (2019).

For Petitioner:

APPEARANCES

Danijela Janjic, Esq.Office of the General CounselDepartment of Financial Services200 East Gaines StreetTallahassee, Florida 32399 -0333

For Respondent: Jonathan Sterbens Ford18210 Sandy Pines CircleNorth Fort Myers, Florida 33917

STATEMENT OF THE ISSUE

Whether the undisputed facts alleged in the Administrative Complaint filed against

Jonathan Sterbens Ford ( "Respondent ") prove that Respondent violated the statutes charged in

the Administrative Complaint, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On June 3, 2019, the Department of Financial Services, Division of Insurance Agent and

Agency Services ( "Petitioner" or "Department ") filed an Administrative Compliant, proposing to

discipline Respondent for a violation of the Florida Insurance Code. Respondent timely

requested an administrative hearing, did not raise any disputed issues of material fact, and opted

to appear in person at a hearing held in Tallahassee. The Department appointed the undersigned

who held a hearing on September 25, 2019.

Counsel for Petitioner appeared in person and offered Petitioner's Exhibits 1 through 4,

which were admitted into evidence without objection. The Department did not call any

witnesses, relying solely on the exhibits for its case.

Respondent appeared in person and offered Respondent's Exhibits 1 through 3, which

were admitted into evidence without objection. Respondent provided sworn testimony on his

own behalf.

Both parties were permitted to file post- hearing submittals in accordance with Rule 28-

106.307, Florida Administrative Code. Petitioner filed Petitioner's Proposed Written Report and

Recommended Order and Respondent filed a Closing Statement.

The entire record, filed exhibits, sworn testimony and the post -hearing submittals have

been carefully considered in the preparation of this Written Report and Recommended Order.

There are no material facts in dispute.

EXHIBITS'

The following exhibits submitted by Petitioner were admitted into evidence:

' Exhibits will be abbreviated as "P. Ex. " or "R. Ex. _" when referenced in this Written Report andRecommended Order. Testimony will be abbreviated as "T. Ford."

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Petitioner's Exhibit 1:

Petitioner's Exhibit 2:Petitioner's Exhibit 3:Petitioner's Exhibit 4:

Automated Licensing Information System (ALIS) ProfileInformation.2Respondent's Court Documents.'Administrative Complaint.Department's Request for Appointment of Hearing Officerwith Attachments.

The following exhibits submitted by Respondent were admitted into evidence:

Respondent's Exhibit 1:Respondent's Exhibit 2:Respondent's Exhibit 3:

Text Messages.Email Messages.Court Ordered Psychological Evaluation.4

FINDINGS OF FACT

1. The Department is the state agency responsible for licensing and regulating

insurance adjusters in the State of Florida, pursuant to the Florida Insurance Code.s

2. Respondent is licensed as an all lines adjuster in the State of Florida, license

number W519719. (P. Ex. 1).

3. On March 11, 2019, in the Circuit Court of the Twentieth Judicial Circuit in and

for Lee County, Florida, case number 18 -CF- 018716, Respondent entered a plea of guilty to

battery on a person 65 years of age or older, contrary to sections 784.03 and 784.08(2), Florida

Statutes (2018), a third -degree felony. (P. Ex. 2). The court withheld adjudication of guilt and

sentenced Respondent to probation for a term of 36 months. (P. Ex. 2).

4. On June 3, 2019, the Department filed an Administrative Complaint that charged

Respondent with a violation of section 626.611(1)(n), Florida Statutes (2018). (R. Ex. 3).

2 Contains confidential information pursuant to section 119.071(5)(a), Florida Statutes (2019).3 Contains confidential information pursuant to section 119.071(2)(j)1. and 119.071(5)(a), FloridaStatutes (2019).4 Confidential and exempt pursuant to sections 394.4615(1), (8), and 90.503(2), Florida Statutes (2019).5 Chapters 624 through 632, 634, 635, 636, 641, 642, 648, and 651, Florida Statutes, constitute the"Florida Insurance Code." § 624.01, Fla. Stat. (2018 -2019).

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5. Respondent maintains that he is innocent of the underlying charges in the criminal

case, that the case is related to a paternity dispute, and that the alleged victim fabricated the

battery to prevent Respondent from having access to his son. Respondent pleaded guilty on the

advice of his attorney. (T. Ford).

6. Respondent is still on probation. (T. Ford).

CONCLUSIONS OF LAW

7. The Department has jurisdiction over the subject matter of this proceeding

pursuant to chapter 626, sections 120.569, and 120.57(2), Florida Statutes (2018- 2019).

8. The procedures in this matter are governed by sections 120.569 and 120.57(2),

Florida Statutes (2019), and chapter 28 -106, parts I and III, Florida Administrative Code.

9. There are no material facts in dispute, leaving only conclusions of law as to

whether the undisputed facts alleged in the Administrative Complaint prove that Respondent

committed the violation charged in the Administrative Complaint, and, if so, what penalty should

be imposed. Autoworld of Am. Corp. v. Dep't of High. Saf. & Motor Veh., 754 So. 2d 76, 77

(Fla. 3d DCA 2000); Nicks v. Dep't of Bus. & Prof? Reg., 957 So. 2d 65, 66 n.1 (Fla. 5th DCA

2007).

10. The Department has the burden to prove by clear and convincing evidence that

Respondent committed the violation charged in the Administrative Complaint. Ferris v.

Turlington, 510 So. 2d 292, 294 (Fla. 1987).

11. Statutes authorizing the revocation of a license to practice a business or profession

are penal in nature and must be strictly construed. Werner v. Dep't of Ins. and Treasurer, 689

So. 2d 1211, 1214 (Fla. 1st DCA 1997). Any ambiguity must be interpreted in favor of the

licensee. Cone v. Dep't of Health, 886 So. 2d 1007, 1011 (Fla. 1st DCA 2004).

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12. Section 626.611(1)(n), Florida Statutes (2018), provides for the compulsory

suspension or revocation of an adjuster's license and states:

(1) The department shall deny an application for, suspend, revoke, or refuseto renew or continue the license or appointment of any applicant, agent, titleagency, adjuster, customer representative, service representative, or managinggeneral agent, and it shall suspend or revoke the eligibility to hold a license orappointment of any such person, if it finds that as to the applicant, licensee, orappointee any one or more of the following applicable grounds exist:

(n) Having been found guilty of or having pleaded guilty or nolo contendereto a felony or a crime punishable by imprisonment of 1 year or more under the lawof the United States of America or of any state thereof or under the law of any othercountry, without regard to whether .a judgment of conviction has been entered bythe court having jurisdiction of such cases.

13. Respondent entered a plea of guilty to a felony and either suspension or

revocation of his license is mandatory under section 626.611(1)(n), Florida Statutes (2018).

14. Respondent's main arguments surround the circumstances of the criminal case

and his assertion that he is innocent of the criminal charges. Respondent does not dispute that he

pleaded guilty to the felony. It is outside the purview of this matter to evaluate whether

Respondent was actually guilty of the underlying crime. See McGraw v. Dep't of State, 491 So.

2d 1193, 1195 (Fla. 1st DCA 1986). Entry of the plea itself creates noncompliance with section

626.611(1)(n), Florida Statutes (2018). Cf McNair v. Crim. Just. Stds. & Training Comm 'n, 518

So. 2d 390, 391 (Fla. ist DCA 1987).

15. Section 626.207(8), Florida Statutes (2018- 2019), directs the Department to adopt

rules that establish specific penalties against licensees for violations of section 626.611, Florida

Statutes. The purpose of the revocation or suspension is to provide a sufficient penalty to deter

future violations of the Florida Insurance Code. Id. 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. Id.

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"The length of suspension may be adjusted based on aggravating or mitigating factors,

established by rule and consistent with this purpose." Id. (emphasis added).

16. Chapter 69B -231, Florida Administrative Code (2019), provides the penalty

guidelines for insurance representatives. For a violation of section 626.611(1)(n), Florida

Statutes, Rule 69B -231.150(1), Florida Administrative Code (2019), sets out the penalty of either

revocation or suspension for 24 months. Fla. Admin. Code R. 69B -231.080(14) (2019).

17. Under Rule 69B- 231.160, Florida Administrative Code (2019), the Department

shall consider aggravating and mitigating factors in order to determine the final penalty assessed

against the licensee. Rule 69B -231.160(2), Florida Administrative Code (2019), lists several

aggravating and mitigating factors "[flor suspensions assessed under Rule 69B -231.150, F.A.C.,

for violations of section 626.611(1)(n), F.S." The rule does not answer the question on how to

distinguish between the alternate penalty recommendations, whether revocation should be

imposed, or whether suspension should be imposed.

18. . Section 626.207(8), Florida Statutes (2018- 2019), states, "[t]he 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." (Emphasis added).

19. Section 626.641(2), Florida Statutes (2019), directs that a person whose license

has been revoked cannot apply for another license for two years, must qualify for licensure in the

same manner as a first -time applicant, and is subject to the waiting periods set out in section

626.207, Florida Statutes. A licensee whose license has been suspended must apply for

reinstatement and is also subject to those same waiting periods. § 626.641(1), Fla. Stat. (2019).

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20. Any order from the Department suspending a license must specify the period

during which the suspension is to be in effect, "but such period shall not exceed 2 years." §

626.641(1), Fla. Stat. (2018- 2019).

21. Thus, under section 626.641, Florida Statutes (2019), regardless of whether an

applicant with a felony history is applying for another license after revocation or applying for

reinstatement of a suspended license, that applicant is subject to the disqualifying periods set out

in section 626.207(2) or (3), Florida Statutes (2019), all of which are significantly longer than

two years.' See also Fla. Admin. Code R. 69B- 231.150(2) (2019). The disqualifying period

begins upon the applicant's release from supervision or upon the completion of the applicant's

criminal sentence. § 626.207(5), Fla. Stat. (2019).

22. In evaluating whether suspension for 24 months or revocation should be imposed

against Respondent, under section 626.207(8), Florida Statutes (2018 -2019), suspension is not

the appropriate penalty. As of the date of the hearing, Respondent was still serving his sentence

of 36 months of probation and will not begin any applicable disqualifying period until the

conclusion of that supervision. § 626.207(5), Fla. Stat. (2019). Regardless of the disqualifying

period that applies, Respondent's eligibility for relicensure does not occur until well beyond the

maximum allowable 2 -year suspension period. §§ 626.641(1), 626.207(2), (3), Fla. Stat. (2019).

23. Under sections 626.207(8), 626.641, Florida Statutes (2018 -2019), and Rule 69B-

231.150, Florida Administrative Code (2019), the appropriate discipline is revocation. No

person whose license has been revoked shall have the right to apply for another license under the

6 Certain felonies subject an applicant to a permanent bar from licensure. § 626.207(2), Fla. Stat. (2019).Felonies involving moral turpitude subject an applicant to a 15 -year disqualifying period, and all otherfelonies subject an applicant to a seven -year disqualifying period with the possibility of a probationarylicense after serving half of the disqualifying period. § 626.207(3), Fla. Stat. (2019).

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Florida Insurance Code within two years of the effective date of such revocation. § 626.641(2),

Fla. Stat. (2019).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended

that the Department issue a Final Order finding that Respondent violated section 626.611(1)(n),

Florida Statutes (2018), and revoking all of Respondent's licenses and appointments.

DONE AND ISSUED on this 4th day of November 2019.

Copies furnished to:

Danijela Janjic, Esq.Attorney for the DepartmentDepartment of Financial Services200 East Gaines StreetTallahassee, Florida 32399 -0333Danijela.Janjic@myfloridacfo.com

Jonathan Sterbens Ford18210 Sandy Pines CircleNorth Fort Myers, Florida 33917jonathanford72@gmail.com

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