THE FINANCIAL MARKETING GROUP, INC., ) APPLICANT FOR REGISTRATION AS DEALER, ) AND MARVIN LEO POPKIN, APPLICANT FOR ) REGISTRATION AS EXECUTIVE OFFICER, )
vs. ) CASE NO. 75-1510
) STATE OF FLORIDA, DEPARTMENT OF ) BANKING AND FINANCING, DIVISION ) OF SECURITIES, )
Respondent. )
Pursuant to notice hearing was held before Charles C. Adams, Hearing Officer for the Division of Administrative Hearings, at Room 210, 1515 Northwest 7th Street, Miami, Florida.
For Petitioners: Paul J. Levine, Esquire
For Respondent: Fred O. Drake, III, Esquire
The issue in this cause is the propriety of the Respondent's denial of the application for registration as a dealer before the Department of Banking and Finance, Division of Securities filed by the Financial Marketing Group, Inc., and the denial of Marvin Leo Popkin's application for registration as executive officer of the Financial Marketing Group, Inc.
Application for registration as dealer was filed by the Financial marketing Group, Inc., in the person of M. L. Popkin, President and Milton A. Fried, Secretary for that corporation, on June 30, 1975. This information is reflected in the Petitioners' Exhibit 1, which was accepted into evidence in the course of the hearing. On that same date, Marvin Leo Popkin filed a request for
registration as executive officer for the Financial Marketing Group, Inc., and this information is reflected in Petitioners' Exhibit 1(A), which was received into evidence in the course of the hearing. The matters set forth in Petitioners' Exhibits 1 and 1(A) are on file with the Respondent, Department of Banking and Finance, Division of Securities.
The principal contention offered by the Respondent in refusing the application of the Financial Marketing Group, Inc., for registration as a dealer in securities, is due to the answers given by Marvin Leo Popkin in completing the Petitioners' Exhibit 1(A). Specifically the basis for denial would refer to question 12, found in Petitioners' Exhibit 1(A). That question is as follows:
"12. List on a separate schedule your employment history, giving positions held, dates employed, dates terminated, and reasons for leaving each position so listed. (All times must be accounted for.)
To the question 12, Marvin Leo Popkin attached an addendum to the application for registration as dealer and in that addendum question 12 was answered as follows:
"12. 6/1/73 - Present - Realty Marketing Group, Inc. - President - 5040 Lakeview Drive, Miami Beach, Florida 33140
7/1/69-6/1/73 - Florida Development & Sales Corp. - President - 1666 Kennedy Causeway, Miami Beach, Florida
10/1/68 - 7/1/69 - Registered Realty Corp.
- Salesman 8403 N.E. Second Avenue, Miami, Florida
1/1/68 - 10/1/68 - Miami Beach Vacations, Inc. - Salesman - 3001 Collins Avenue, Miami Beach, Florida"
The Respondent felt that this answer to number 12 was insufficient, because on January 22, 1975, Marvin L. Popkin had filed an application for reregistration as a mortgage broker before the Department of Banking and Finance, Division of Finance, in which Marvin L. Popkin signed as Vice President of Financial Resources Corporation. Apparently, the Respondent felt that this affiliation referred to in the application for reregistration as a mortgage broker, which matters are found in Petitioners' Exhibit 2, admitted into evidence, was tantamount to an employment of Marvin Leo Popkin by the Financial Resources Corporation. Consequently, the failure of Marvin Leo Popkin to list this employment with the Financial Resources Corporation in response to question
12 of the request for registration as executive officer for the Financial Marketing Group, Inc., was felt to be a materially false statement.
Marvin Leo Popkin, through his testimony in the hearing, indicated that the affiliation with the Financial Resources Corporation was a prospective one and not one in actuality. The background of the affiliation of Marvin Leo Popkin with Financial Resources Corporation, according to Mr. Popkin, was that he was approached in behalf of one Sidney Gilbert and Ronald Schaffer about becoming mortgage broker for Financial Resources Corporation, should a purchase
of that company be consummated by Messrs. Gilbert and Schaffer. In fact the purchase was never completed because of certain problems associated with Financial Resources Corporation and Marvin Leo Popkin never became a mortgage broker for that company. Moreover, according to Mr. Popkin the basis for the application which is referred to in Petitioners' Exhibit 2, was premised upon the purchase being made by Mr. Gilbert and Mr. Schaffer and agreement for remuneration being made between Marvin Leo Popkin, and the others. The witness indicated that the purchase not being made, no salary was ever agreed upon and furthermore, the witness never did any work for Financial Resources Corporation, nor for that matter ever went to the office location of Financial Resources Corporation.
The witness, Popkin, also indicated that signing the application as vice president was strictly prospective, in that he was not in fact at any time the vice president of Financial Resources Corporation. He stated that this signature was a matter of the necessity of signing as an officer, so that compliance with the Division of Finance requirements could be achieved. The title, vice president, was selected because Mr. Gilbert and Mr. Schaffer had tentatively agreed to identify themselves as the president and secretary, of Financial Resources Corporation, should the purchase be completed.
Mr. Popkin indicated that a mortgage brokers license was issued by the office of the comptroller, without his knowledge. Mr. Popkin stated that he wrote a letter dated February 28, 1975, indicating to the office of the state comptroller that he was no longer affiliated with Financial Resources Corporation and therefore did not desire the issuance of a mortgage brokers license, in which a transfer of his mortgage brokers license had been made from the Florida Mortgage Group, Inc. to the Financial Resources Corporation. A copy of this correspondence is Petitioner's Exhibit 3, which was admitted into evidence. It is noted that the character of the correspondence, which is Petitioner's Exhibit 3, indicates that the witness, Marvin Leo Popkin, was at the time of the correspondence, a principal broker for the Financial Resources Corporation; however, testimony was not offered in the course of the hearing which would tend to refute the explanation of the prospective nature of Mr. Popkin's association with the Financial Resources Corporation. Consequently, the unrefuted testimony of the witness, Marvin Leo Popkin, concerning the prospective nature of the affiliation with Financial Resources Corporation stands established.
On February 28, 1975, Marvin Leo Popkin also wrote a letter to Financial Resources Corporation in which he tendered his resignation as a mortgage broker with their corporation. A copy of this correspondence is Petitioner's Exhibit 4, admitted into evidence. Again the nature of the correspondence is such that it would seem that Marvin Leo Popkin was formally associated with Financial Resources Corporation and comments made about Petitioner's Exhibit 3 would seem to have application here. The witness's explanation offered in the course of the hearing stands without rebuttal and is established as a fact.
Subsequent to the time of writing the letters of February 28, 1975, the witness, Marvin Leo Popkin, received a mortgage brokers license issued to Marvin L. Popkin as vice president of Financial Resources Corporation, and in response wrote a letter to the comptroller's office dated March 19, 1975, in which he enclosed the license which had been issued to him as vice president of Financial Resources Corporation. A copy of this correspondence together with the face sheet of the license referred to, is Petitioner's Exhibit 5, which was admitted into evidence.
The Respondent did not offer any evidence by way of testimony or documents, in opposition to the explanation of the events, which was set forth by the witness Marvin Leo Popkin. Therefore, it is assumed that the reasons set forth for denial of the application of Financial Marketing Group, Inc., as a registered dealer in securities and for the denial of Marvin Leo Popkin as executive director of the Financial Marketing Group, Inc., stand upon the matters set forth in Petitioner's Exhibits 1 and 1A and that no other explanation for denial under F.S., Sections 517.16(1)(h), 517.30(3), 517.301(3), 517.301(4) and Florida Administrative Rule 3B-305 is forth coming.
Consequently, the denial of the Financial Marketing Group, Inc., application for license as a registered dealer in the State of Florida and the denial of Marvin Leo Popkin's request to be executive officer of the Financial Marketing Group, Inc. rests upon an examination of the documents referred to in Petitioner's Exhibits 1, 1A, and 2, together with testimony offered in explanation of those documents.
An examination of the Petitioner's Exhibits 1, 1A, and 2 in light of the testimony of Marvin Leo Popkin would indicate that the witness did not knowingly and willfully falsify, conceal or cover up by any trick, scheme, or device, a material fact in filling out the request for registration as executive officer for the Financial Marketing Group, Inc. as set forth in Petitioner's Exhibit 1A, all in violation of F.S., Section 517.301(3). Moreover, it does not appear that the Financial Marketing Group, Inc. through its applicant to be executive officer, Marvin Leo Popkin, has demonstrated an unworthiness to transact the business of a dealer in securities in the State of Florida.
CONCLUSIONS OF LAW
Since the unrefuted facts in this cause, as offered by the witness, Marvin Leo Popkin, established that he was never employed by Financial Resources Corporation, in the sense of the legal definition of the word employed, then the answer given to the question number 12, which is the request for registration as executive officer filed by Marvin Leo Popkin for the Financial Marketing Group, Inc. is not a false answer to the question, such that it would be considered as knowingly and willfully falsifying, concealing or covering up by any trick, scheme or device, a material fact in violation of F.S., Sections 517.301(3). It follows that Marvin Leo Popkin not being employed by legal definition, it would not appear that cause for refusal of the registration filed by the Financial Marketing Group, Inc. to be a securities dealer in the State of Florida and refusal of the request for registration as executive officer filed by Marvin Leo Popkin of the Financial Marketing Group, Inc. can be sustained. Since question 12, as testified to, does not tend to indicate that the Financial Marketing Group, Inc. is unworthy to transact the business of a dealer in securities in the State of Florida and that Marvin Leo Popkin would not appear to be unworthy to be registered as an executive officer of the Financial Marketing Group, Inc., either as set forth in F.S., Sections 517.16(1)(h) or Florida Administrative bode Rule 3B-305, then these grounds for denial of the request cannot be sustained.
There being no further explanation for denying the application of the Financial Marketing Group, Inc. to be a registered dealer in securities in the State of Florida, than as set forth in the administrative complaint filed by the Respondent, and this opposition having been effectively answered, the license to be a registered dealer in securities in the State of Florida should be issued to the Financial Marketing Group, Inc. Furthermore, since the only opposition that has been expressed to the denial of Marvin Leo Popkin to be registered as the
executive officer of the Financial Marketing Group, Inc., is as set forth in the administrative complaint and that opposition having been answered by the testimony in this hearing, then Marvin Leo Popkin's request for registration as executive officer of the Financial Marketing Group, Inc. should be granted.
It is recommended that the application of the Financial Marketing Group, Inc. to become a registered dealer in securities in the State of Florida be granted and that the request for registration filed by Marvin Leo Popkin to act as executive officer of the Financial Marketing Group, Inc., an applicant for license to be a registered dealer in securities, be granted.
DONE and ENTERED this 2nd day of March, 1976, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Fred O. Drake, III, Esquire Assistant General Counsel Office of the Comptroller The Capitol
Paul J. Levine, Esquire Noriega and Bartel P.A. 2100 First Federal Building One Southeast Third Avenue Miami, Florida 33131
