STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 76-2210

)

JAY ATEN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above styled cause on April 3, 1978 commencing at 10:00 a.m. in Room 103, Collins Building, Tallahassee, Florida, before Delphene C. Strickland, State Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Franklyn J. Wollett, Esquire

Office of the Comptroller The Capitol

Tallahassee, Florida 32304

For Respondent: No Appearance on behalf of Respondent ISSUE

Whether the registration as salesman of securities of Respondent should be revoked or suspended.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing the following facts are found:

1. On or about November 24, 1976, the Petitioner, Department of Banking and Finance, Division of Securities, filed and served a Notice of Intent to Suspend or Revoke License and accompanying Administrative Charges and Complaint on Respondent.

   
   

2. The Notice of Intent and Administrative Charges and Complaint were received by Respondent on November 26, 1976. Thereafter, Respondent, by and through his counsel, timely requested a Section 120.57 hearing. The Petitioner referred the Respondent's request for hearing to the Division of Administrative Hearings and the undersigned Hearing Officer was assigned to conduct the hearing.

3. On or about March 17, 1978, Petitioner filed a Motion to Amend Administrative Charges and Complaint seeking to withdraw the prior allegations contained in the complaint and substituting paragraphs eight (8) and nine (9) which respectfully alleged that Respondent was adjudicated guilty on or about March 6, 1978, to the felony charges of two (2) counts of sale of unregistered securities, and that such adjudication of guilt is prima facie evidence of unworthiness to transact a business of a securities salesman in the State of Florida. Petitioner's Motion to Amend was granted without objection by Respondent.

   
   

4. Counsel for Petitioner introduced into evidence certain "admissions" of Respondent to certain questions propounded to Respondent by the Petitioner's Request for Admissions filed on or about March 21, 1977. The two "admissions" admitted into evidence were number 1 and number 2, which admitted that Respondent was registered as a security salesman on or about July 30, 1971 and that he held license no. 64590 as a salesman at the time the Administrative Charges and Complaint was filed.

   
   

5. The supervisor for the licensing and registration of securities dealers and agents testified that Respondent was registered as a securities salesman on or about July 30, 1971 and that Respondent did hold license no. 64590 as a securities salesman at the time the Administrative Complaint was filed.

   
   

6. Counsel for Petitioner introduced into evidence a certified copy of Judgment of Guilt/Order of Probation of Respondent, which had been filed with the Hearing Officer on or about March 27, 1978, pursuant to a proper Notice of Filing. The certified copy of the Judgment of Guilt of the Respondent concerned the case of State of Florida v. Jay Aten, Jr., in the Circuit Court of Lee County Florida, Case No. 76-239 CF. According to that document on or about March 6, 1978, Respondent tendered to the court a plea of nolo contendere to the offense of sale of unregistered securities. Respondent was adjudicated guilty, and the imposition of a five (5) year prison sentence was withheld and the Respondent placed on a five (5) year period of probation. Respondent was required to pay the sum of $5,000 fine within six (6) months.

   
   

7. Counsel for Petitioner requested the Hearing Officer to take official recognition of Section 517.16(1)(h), Florida Statutes, and Rule 3E-30.10(1), Florida Administrative Code, pursuant to Rule 221-2.25 of the Model Rules. The Hearing Officer officially recognized the statute and rule cited above.

   
   

   CONCLUSIONS OF LAW

   
   

8. Section 517.16(1), Florida Statutes, provides in part:

   
   

   517.16 Revocation or suspension of dealers' and salesmen' s registration.

   (1) Registration under s. 517.12 may be refused or any registration granted may be revoked or suspended by the department if after a reasonable notice and a hearing the department determines that such applicant

   or registrant so registered: (a) Has violated any provision of this part or any regulation made hereunder;

   * * *

   (h) Has demonstrated his unworthiness to transact the business of dealer or salesman;

9. Rule 3E-30.10(1), Florida Administrative Code, provides in part:

   
   

   3E-30.10 Prima Facie Evidence of Unworthiness. Prima facie evidence of unworthiness to transact the business of a dealer, investment adviser, executive officer or salesman in

   the State of Florida shall include, but shall not be limited to:

   1. A conviction of any felony or first degree misdemeanor which relates to license being sought;. . .

      
      

10. Respondent has violated the foregoing statute and rule. The criminal conviction for sale of unregistered securities relates to his license as a security salesman. A certified copy of the Judgment of Guilt and placement of Respondent on probation was entered into evidence. No objection was made to the introduction into evidence of the Judgment of Guilt and Respondent did not appear to defend himself although he had retained counsel in the matter and matters leading up to this administrative hearing. Respondent made no explanation of his plea of "nolo contendere".

RECOMMENDATION

Revoke the license no. 64590 held by the Respondent as a securities salesman.

DONE AND ENTERED this 22nd day of June, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Franklyn J. Wollett, Esquire Jay Aten, Jr. Office of the Comptroller 4178 Erindale Drive

The Capitol North Ft. Myers, Florida Tallahassee, Florida 32304

M. W. Schryver, Esquire

600 Fifth Avenue South, Suite 306

Naples, Florida 33940

Docket for Case No: 76-002210

Orders for Case No: 76-002210