STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID L. PIERCE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1753

)

DEPARTMENT OF BANKING AND ) FINANCE, DIVISION OF FINANCE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, and administrative hearing was scheduled for 2:00 P. M. on March 29, 1977, in Room 417 of the Broward County Courthouse, Ft. Lauderdale, Florida, before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Richard E. Gentry

Assistant General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32304 PROCEDURAL BACKGROUND

On August 23, 1976, respondent issued to petitioner its notice of intent to deny petitioner's application for registration as a mortgage solicitor. The stated reasons for such denial were set forth in an accompanying document entitled "Administrative Charges and Complaint." Respondent determined that petitioner did not meet the proper qualifications necessary to be licensed as a mortgage solicitor in that he had been found guilty and was still on probation for certain offenses relating directly to the mortgage brokerage industry. By an "answer" filed with respondent on September 22, 1976, petitioner, through counsel, admitted the material factual allegations of the "Administrative Charges and Complaint," but denied the conclusory allegations and requested a hearing. After some correspondence between the undersigned and counsel for the parties regarding the setting of a hearing date, petitioner's counsel withdrew from representation of petitioner. On February 8, 1977, the undersigned wrote both parties suggesting a hearing date of March 29, 1977, and asking the parties to notify her on or before February 18, 1977, if said date was inconvenient.

Receiving no response, the notice of hearing for March 29, 1977, was issued on February 28, 1977. Petitioner did not appear at the hearing.

FINDINGS OF FACT

1. On January 8, 1975, the United States District Court, District of Delaware, entered a "judgment and probation/commitment order," finding petitioner guilty of violating Title 18, United States Code, Sections 1010 and

371. These charges involved, inter alia, making, passing, uttering and publishing false statements and forged instruments in connection with the obtaining of mortgage insurance under the provisions of the National Housing Act. Petitioner was fined $2,500.00 and sentenced to serve three years imprisonment, the remainder to be suspended after six months and petitioner to be placed on probation for the remaining thirty months.

1. On or about July 9, 1976, petitioner applied to respondent for registration as a mortgage solicitor. For the reason that petitioner was found guilty as described in paragraph one above, respondent determined that petitioner did not meet the proper qualifications to be licensed and issued its notice of intent to deny said license.

   
   

2. In his answer and request for a hearing, petitioner admitted the material factual allegations of the complaint. Petitioner did not appear and therefore offered no evidence in his own behalf.

   
   

   CONCLUSIONS OF LAW

   
   

3. Florida Statutes Section 494.05(4) provides that the respondent may refuse a license if it determines that an applicant does not meet all the requirements of Florida Statutes 494.04. Among the requirements of Florida Statutes 494.04 is that respondent inquire into the experience, background, honesty, truthfulness, integrity and competency of the applicant as to financial transaction involving primary or subordinate mortgage financing. Respondent found that the offenses for which petitioner was adjudicated guilty by the United States District Court related directly to the mortgage brokerage industry and therefore that petitioner did not meet the proper qualifications necessary to be licensed as a mortgage solicitor. As noted above, petitioner, who had the burden of proof to illustrate that he possessed the necessary qualifications for licensure, failed to appear at the hearing and therefore offered no proof.

   
   

4. It is concluded that respondent's determination not to issue the license to petitioner is within the discretion permitted it under Florida Statutes 494.05(4) and is supported by uncontradicted evidence and sufficient grounds therefore.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for registration as a mortgage solicitor be DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of April, 1977.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1977

COPIES FURNISHED:

Mr. David L. Pierce 891 West Tropical Way

Plantation, Florida 33317

Richard E. Gentry, Esquire Assistant General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32304

Joseph M. Ehrlich Deputy Director Division of Finance

Department of Banking and Finance

335 Carlton Building Tallahassee, Florida 32304

Comptroller Gerald A. Lewis The Capitol

Tallahassee, Florida 32304

Docket for Case No: 76-001753

Orders for Case No: 76-001753