STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA )

DEPARTMENT OF BANKING AND ) FINANCE, DIVISION OF FINANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1512

) PETER VAN WIE INVESTMENTS, INC. )

and PETER VAN WIE, President, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Charles C. Adams, Hearing Officer, Division of Administrative Hearings, at the Offices of the State Comptroller, 2453 North Military Trail, West Palm Beach, Florida, at 9:00 a.m., May 5, 1976.

APPEARANCES

For Petitioner: R. Terry Rigsby, Esquire

Assistant General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32304

For Respondent: Peter Van Wie, President

Peter Van Wie Investments, Inc.

16 Winnebago Road

Sea Ranch Lakes, Florida

ISSUE

1. Whether or not the Respondent, Peter Van Wie Investments, Inc., and Peter Van Wie, it's president, a licensed mortgage broker in the State of Florida, by placing deposited monies received from investors in savings accounts number 4-0011068 at the United States Federal Savings and Loan Association of Broward

   County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, said savings account being in the name of Peter Van Wie, Investments, Inc. is in violation of Rule 3D-40.06(7), Florida Administrative Code (formerly Rule 3-3.06(7), Florida Administrative Code), and thereby subjected to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes, and Section 494.05(1)(g), Florida Statutes.

   
   

2. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging, negotiation, selling, purchasing and planning of the mortgage loans set forth in Exhibit "A" (of the Administrative Complaint) in violation of Section 494.08(5), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g), Florida Statutes.

   
   

3. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in Exhibit B (of the Administrative Complaint) in violation of Section 494.08(4), Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4), Florida Administrative Code) and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g), Florida Statutes.

   
   

4. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, on or about March 12, 1975, received from Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development, and subsequently on April 18, 1975, wrote a check to First National Resources in the amount of $11,760.00 to pay for said promissory note and mortgage for Marie W. Neal, which on April 24, 1975, was returned by, Lauderdale Beach Bank for non- sufficient funds in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes.

   
   

5. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to obtain for Marie W. Neal, a

   promissory note and mortgage or remit said funds for such promissory note and mortgage to her in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes.

   
   

6. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to account or deliver to Marie W. Neal after demand, said funds which came to $14,000.00 which were placed with the Respondent for purposes of investing in a promissory note and mortgage for land located in Dora Pines Development which funds had come into the hands of the Respondent which were and are not the property of the Respondent in which in law and equity the Respondent is not entitled to retain, in violation of Section 494.04(1)(e), Florida Statutes, and thereby subjected Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes.

   
   

7. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to place, immediately upon receipt, funds in the amount of $14,000.00 received of Marie W. Meal into an escrow account, with an escrow agent located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida, in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjecting the Respondent to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

8. Peter Van Wie Investments, Inc. through the person of Peter Van Wie, its president, was a licensed mortgage broker in the State of Florida during the time period contemplated by the Administrative Complaint. The Respondent was issued said license on October 4, 1974.

   
   

9. At a time when the Respondent's mortgage broker license was in effect, Peter Van Wie Investments, Inc. and/or Peter Van Wie deposited monies received from investors in a savings account number 4-0011068, at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida. This savings account was in the name of Peter Van Wie Investments, Inc.

10. While operating as Peter Van Wie Investments, Inc., Peter Van Wie Investments, Inc. and/or Peter Van Wie paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04(04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging negotiation, selling, purchasing and planning of mortgage loans. These sales by Mr. Beck and Mr. Clarke are identified in the Exhibit "A to the Complaint and Petitioner's Exhibit "C" admitted into evidence during the hearing. Richard Clarke became a licensed mortgage broker in the State of Florida on December 19, 1973. Frederick Beck has never been licensed under Chapter 494, Florida Statutes.

    
    

11. There was admitted into evidence in the course of the hearing, Petitioner's Composite Exhibit "B". The columns that are shown on the pages of the exhibit running horizontally represent in succession: the date, name of the investor, whether or not the investor was a Florida resident, the amount of the mortgage, the amount of commission paid, whether the note was in the file of the Respondent, whether or not the mortgage was in the file of the Respondent, whether or not the title insurance policy on real estate was in the file, the interest rate return for the investor, whether or not the arrangement was for interest only or interest and principal, and the name of the broker/developer. The facts which surrounded the transaction shown in Petitioner's Composite Exhibit "B" are as follows:

    
    

12. An investor would be in contact with Peter Van Wie Investments, Inc. concerning the purchase of certain promissory notes and mortgage for land which were being offered by a developer/mortgagor. The investor made out a check to Peter Van Wie Investments, Inc. using the acronym PVWI, Inc. The money for purchasing the promissory note and mortgage was then held in the escrow account until Peter Van Wie Investments, Inc. received the promissory note and mortgage through an intermediary acting in behalf of the developer. The money that had been received from the investor stayed in the escrow account until the receipt of the promissory note and mortgage and then was removed in the entire amount and placed in the Peter Van Wie Investments, Inc. operating account. A percentage of the investment principal would then be deducted from the amount which had been placed in the operating account and the amount remaining after the percentage had been deducted would be forwarded to the intermediary, who would make a further dispersion of the proceeds to the developer. The percentage to be deducted from the investment principal amount was determined by prior negotiations between the intermediary, and Peter Van Wie investments, Inc. These percentage amounts deducted from the investment principal were characterized by the Respondent

    in the course of the hearing, as being a discount allowed by the intermediary for sales of the promissory notes and mortgages to the Respondent. This characterization by the Respondent is rejected and these percentage amounts are found to be fees or commissions charged by the Respondent, which are in excess of the maximum allowable fees or commissions on transactions, in that they are in excess of the amounts allowed under Section 494.08(4)) Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4), Florida Administrative Code).

    
    

13. In connection with other allegations found in the Administrative Complaint, it has been shown that on March 12, 1975, the Respondent received from one Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development. Peter Van Wie, on April 18, 1975, wrote a check to First National Resources in the amount of $11,760.00 to pay for the promissory note and mortgage for Marie W. Neal. On April 24, 1975, the check that had been written to First National Reserves was returned by the Lauderdale Beach Bank, for non-sufficient funds. The Respondent's explanation of the reason for the non-sufficient funds is found in his Answer to the Administrative Complaint in paragraph 6.

    
    

14. It is not clear from the record whether Marie W. Neal ever physically received a promissory note and mortgage; however, a promissory note and mortgage deed have been recorded in Lake County, Florida, in her favor. There was no proof that the person, Marie W. Neal, ever asked that the Respondent remit such funds she had paid for the promissory note and mortgage. Furthermore, there is no evidence to the effect that the Respondent failed to deliver to to Marie W. Neal after demand, the said $14,000.00 which came into the Respondent's hands, or which had been placed in the escrow account of the Respondent and from which the non-sufficient funds check had been written to First National Resources. By an exhibit attached to the Answer of the Respondent, it is shown that the $14,000.00 was placed in the escrow account so designated at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, on March 13, 1975.

    
    

    CONCLUSIONS OF LAW

    
    

15. It is concluded as a matter of law that Peter Van Wie Investments, Inc. and Peter Van Wie, its president, deposited monies received from investors in savings account number 4-0011068 at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea,

    Florida, in violation of Section 494.05(1)(f), Florida Statutes, subjecting the Respondent to the penalties of that section, and in violation of Rule 30-40.06(7), Florida Administrative Code, (formerly Rule 3-3.06(7), Florida Administrative Code) and thereby subjecting the Respondent to the penalties found in Section 494.05(1)(g), Florida Statutes.

    
    

16. It is concluded as a matter of law that Peter Van Wie Investments, Inc. and Peter Van Wie, its president, paid to Richard Clarke and Frederick Beck, who are not licensed pursuant to Section 494.04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging, negotiation, selling, purchasing or planning of mortgage loans in violation of Section 494.08(5), Florida Statutes, thereby subjecting the Respondent to the penalties found in Section 494.05(1)(g), Florida Statutes.

    
    

17. It is concluded as a matter of law that Peter Van Wie Investments, Inc. and Peter Van Wie, its president, charged and accepted fees and commissions in excess of the maximum allowable fees or commissions in violation of Section 494.08(4), Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code (formerly Rule 3-3.08(3)(4), Florida Administrative Code), thereby subjecting the Respondent to the penalties found in Section 494.05(1)(g), Florida Statutes.

    
    

18. It is concluded as a matter of law that Peter Van Wie Investments, Inc. and Peter Van Wie, its president, on or about March 12, 1975, received from Marie W. Neal, $14,000.00 for the purposes of investing in a promissory note and mortgage for land located in Dora Pines Development. Further, Peter Van Wie, on April 18, 1975, wrote a check to First National Resources in the amount of $11,760.00 to pay for said promissory note and mortgage for Marie W. Neal, and on April 24, 1975, said check was returned by Lauderdale Bank for non-sufficient funds. The Respondent has failed to account or deliver to First National Resources personal property or for which it is not in law or equity established to retain, in violation of Section 494.05(1)(e) Florida Statutes, thereby subjecting the Respondent to the penalties found in Section 494.05(1)(e), Florida Statutes.

    
    

19. It is concluded as a matter of law that the Petitioner has not adequately shown that Peter Van Wie failed to obtain for Marie W. Neal a promissory note and mortgage or remit said funds to her, in violation of Section 494.05(1)(e), Florida Statutes, as alleged in the Complaint.

20. It is concluded as a matter of law that Petitioner has not adequately shown that Peter Van Wie has failed to counter deliver to Marie W. Neal, after demand, said funds which came through his hands and which were and are not his property and which in law and equity he is not entitled to retain under the alleged violation of Section 494.05(1)(e), Florida Statutes, as set forth in the Administrative Complaint.

    
    

21. It is concluded as a matter of law that the Respondent failed to place, immediately upon receipt, said funds received from Marie W. Neal in escrow with an escrow agent located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida in violation of Section

494.05 (1)(f), Florida Statutes, thereby subjecting the Respondent to penalties found in Section 494.05(1)(f), Florida Statutes. However, this violation as established is deemed to be a part of single transaction which is composed of the conclusions of the facts considered in paragraph 1 of these Conclusions of Law and this paragraph 7 of these Conclusions of Law, and only one penalty may be assessed for violations found in paragraphs 1 and 7 of these Conclusions of Law.

RECOMMENDATION

It is RECOMMENDED that the license of the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in Florida, be suspended for a period of one year in view of the violations which have been proven in the course of the hearing.

DONE and ENTERED this 15th day of July, 1976, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

R. Terry Rigsby, Esquire Assistant General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32304

Peter Van Wie, President

Peter Van Wie Investments, Inc.

16 Winnebago Road

Sea Ranch Lakes, Florida

B. Paul Pettie

2314 E. Atlantic Boulevard Pompano Beach, Florida 33062

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE,

Petitioner,

vs. Administration Proceeding

Number 75-21 DOF-MB PETER VAN WIE INVESTMENTS, INC., Case No. 75-1512 and PETER VAN WIE, PRESIDENT,

Respondent.

/

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Charles C. Adams, Hearing Officer, Division of Administrative Hearings, at the Offices of the State Comptroller, 2453 North Military Trail, West Palm Beach, Florida, at 9:00 am., May 5, 1976.

APPEARANCES

For Petitioner: R. Terry Rigsby, Esquire

Assistant General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32304

For Respondent: Peter Van Wie, President

Peter Van Wie Investments, Inc.

16 Winnebago Road

Sea Ranch Lakes, Florida

ISSUES

1. Whether or not the Respondent, Peter Van Wie Investments, Inc., and. Peter Van Wie its president, a licensed mortgage broker in the State of Florida, by placing deposited monies received from investors in savings account number 4-0011068 at the United States Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida, said savings account being in the name of Peter Van Wie Investments, Inc. is 4. in violation of rule 3D-40.06(7), Florida Administrative Code (formerly Rule 3-3.06(7), Florida Administrative Code) , and thereby subjected to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes.

   
   

2. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging, negotiation, selling, purchasing, and planning of the mortgage loans set forth in Exhibit "A" (of the Administrative Complaint) in violation of Section 494.08(5), Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) , Florida Statutes.

   
   

3. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has charged and accepted fees and commissions in excess of the maximum allowable fees or commissions on the transactions set forth in Exhibit B (of the Administrative Complaint) in violation of Section 494.08(4) , Florida Statutes, and Rule 3D-40.08(3)(4), Florida Administrative Code, (formerly Rule 3-3.08(3)(4) Florida Administrative Code) and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(g) Florida Statutes.

   
   

4. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, on or about March 12, 1975, received from Marie W. Neal, $14,000.00 for the purpose of investing in a promissory note and mortgage for land located in Dora Pines Development, and subsequently on April 1, 975, wrote a check to First National Resources. in the amount of $11,760.00 to pay for said promissory note and mortgage for Marie W. Neal, which on April 24, 1975, was returned by Lauderdale Beach Bank for non- sufficient funds in violation of Section 494.05(1)(e), Florida

   Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida, Statutes.

   
   

5. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to obtain for Marie W. Neal, a promissory note and mortgage or remit said funds for such promissory note and mortgage to her in violation of Section 494.05(1)(e) Florida Statutes, and thereby subjected the Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes.

   
   

6. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to account or deliver to Marie W. Neal after demand, said funds which came to $14,000.00 which were placed with the Respondent for purposes of investing in a promissory note and mortgage for land located in Dora Pines Development which funds had come into the hands of the Respondent which were and are not the property of the Respondent in which in law and equity the Respondent is not entitled to retain, in violation of Section 494.04(1) Florida Statutes, and thereby subjected Respondent to a possible suspension under the terms of Section 494.05(1)(e), Florida Statutes.

   
   

7. Whether or not the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in the State of Florida, has failed to place, immediately upon receipt, funds in the amount of $14,000.00 received of Marie W. Neal into an escrow account, with an escrow agent located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida or to deposit said funds in a trust or escrow bank account maintained by the Respondent with some bank located and doing business in Florida, in violation of Section 494.05(1)(e), Florida Statutes, and thereby subjecting the Respondent to a possible suspension under the terms of Section 494.05(1)(f), Florida Statutes.

FINDINGS OF FACT

1. Peter Van Wie Investments, Inc. through the person of Peter Van Wie, its president, was a licensed mortgage broker in the State of Florida during the time period contemplated by the Administrative Complaint. The Respondent was issued said license on October 4, 1974.

   
   

2. At a time when the Respondent's mortgage broker license was in effect, Peter Van Wie Investments, Inc. and/or Peter Van Wie deposited monies received from investors in a savings account number 4-0011068. at the United Federal Savings and Loan Association of Broward County, 234 East Commercial Boulevard, Lauderdale by the Sea, Florida. This savings account was in the name of Peter Van Wie Investments, Inc. This was found by the hearing officer to be a violation of. Section 494.05(1)(f), F.S., and Rule 3D-40.06(7), F.A.C., thereby subjecting the Respondent to the penalties found in Section 494.05(1)(g), F.S.

   
   

3. While operating as Peter Van Wie Investments, Inc., Peter Van Wie Investments, Inc. and/or Peter Van Wie paid to Richard Clarke and Frederick Beck, who were not licensed pursuant to Section 494.04, Florida Statutes, certain commissions, bonuses or fees in connection with the arranging, negotiation, selling, purchasing and planning of mortgage loans. These sales by Mr. Beck and Mr. Clarke are identified in the Exhibit "A" to the Complaint and Petitioner's Exhibit "C" admitted into evidence during the hearing. Richard Clarke became a licensed mortgage broker in the State of Florida on December 19, 1973. Frederick Beck has never been licensed under Chapter 494, Florida Statutes. Said commissions were determined by the hearing officer to be in violation of Section 494.08(5), F.S., thereby subjecting the Respondent to the penalties found in Section 494.05 (1)(g), F.S.

   
   

4. There was admitted into evidence in the course of the hearing, Petitioner's Composite Exhibit "B". The columns that are shown on the pages of the exhibit running horizontally represent in succession: the date, name of the investor, whether or not the investor was a Florida resident, the amount of the mortgage, the amount of commission paid, whether the note was in the file of the Respondent, whether or not the mortgage was in the file of the Respondent, whether or not the title insurance policy on real estate was in the file, the interest rate return for the investor, whether or not the arrangement was for interest only or interest and principal, and the name of the broker/developer. The facts which surrounded the transaction shown in Petitioner's Composite Exhibit B" are as follows:

An investor would be in contact with Peter Van Wie Investments, Inc. concerning the purchase of certain promissory notes and mortgage for land which were being offered by a developer/mortgagor. The investor made out a check to Peter Van Wie Investments, Inc. using the acronym PVWI, Inc. The money for purchasing the promissory note and mortgage was then held in the

escrow account until Peter Van Wie Investments, Inc. received the promissory note and mortgage through an intermediary acting in behalf of the developer. The money that had been received from the investor stayed in the escrow account until the receipt of the promissory note and mortgage and then was removed in the entire amount and placed in the Peter Van Wie Investments, Inc. operating account. A percentage of the investment principal would then be deducted from the amount which had been placed in the operating account and the amount remaining after the percentage had been deducted would be forwarded to the intermediary, who would make a further dispersion of the proceeds to the developer. The percentage to be deducted from the investment principal amount was determined by prior negotiations between the intermediary, and Peter Van Wie investments, Inc. These percentage amounts deducted from the investment principal were characterized by the Respondent in the course of the hearing, as being a discount allowed by the intermediary for sales of the promissory notes and mortgages to the Respondent. This characterization by the Respondent is rejected and these percentage amounts are found to be fees or commissions, in violation of Section 494.08(4), F.S., and Rule 3D- 40.08(3)(4), F.A.C., thereby subjecting the Respondent to the penalties found in Section 494.05(1)(g), F.S.

WHEREFORE, it is ordered that the license of the Respondent, Peter Van Wie Investments, Inc. and Peter Van Wie as president, a licensed mortgage broker in Florida; is hereby suspended for a period of two years in view of the violations which were found as conclusions of law by the presiding Hearing Officer.

DONE AND ORDERED this 26th day of July, 1976, in Tallahassee, Florida.

GERALD A. LEWIS, as

State Comptroller and Head of the Department of Banking and Finance

By: James H. Allen Jr.

Director, Division of Finance Department of Banking and Finance

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing Final Order was mailed Certified Mail, Return Receipt Requested to Peter Van Wie, President, Peter Van Wie Investments, Inc., 16 Winnebago Road, Sea Ranch Lakes, Florida, and by U.S. Mail to Charles C. Adams, Hearing Officer, Division of Administrative Hearings, Room 530 Carlton Building, Tallahassee Florida 32304 this 30th day of July, 1976.

Ryland Terry Rigsby Attorney

Docket for Case No: 75-001512

Orders for Case No: 75-001512