STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 77-449

)

MELVIN HABER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in the above styled cause in Room 104, Collins Building, Tallahassee, Florida, on April 22, 1977, at 10:00 A.M. before Delphene C. Strickland, Hearing Officer, Division of Administrative Hearings, Department of Administration.

APPEARANCES

For Petitioner: Richard E. Gentry, Esquire

Assistant General Counsel Office of the Comptroller Legal Annex

Tallahassee, Florida 32304 For Respondent: No appearance

ISSUE

Whether the application of the Respondent Melvin Haber for a mortgage broker's license should be approved or denied.

FINDINGS OF FACT

1. Respondent Melvin Haber applied for registration as a mortgage broker by filing an application for registration as a mortgage broker on December 20, 1976.

   
   

2. On January 14, 1977, Petitioner issued to Respondent its Notice of Intent to Deny Respondent's Application for registration as a mortgage broker. The reasons for such denial were set forth in an accompanying document entitled "Administrative Charges and Complaint." Petitioner Division of Finance had determined that Respondent Melvin Haber did not meet the proper qualifications necessary to be licensed as a mortgage broker and that he had, through Guardian Mortgage and Investment Corporation, charged and received fees and commissions in excess of the maximum allowable fees or commissions provided by the Florida Statutes; and although he had stated otherwise on his application, Respondent in fact had been charged in a pending lawsuit with fraudulent and dishonest dealings; and had demonstrated a course of conduct which was negligent and or

   incompetent in the performance of acts for which he was required to hold a license.

   
   

3. By letter dated January 19, 1977, to Mr. Joseph Ehrlich of the Comptroller's Office, Tallahassee, Florida, Petitioner received a request from the Respondent Melvin J. Haber in which he acknowledged receipt of his rejection for mortgage broker's license and stated,

   
   

   "I received notice today of my rejection for my mortgage broker's license. I would, therefore, withdraw my application and re- quest return of $75.00 as I will not answer the rejection as I can't afford an attorney at this time."

   
   

4. A Special Appearance to Dismiss Complaint was entered on February 11, 1977. The grounds are as follows:

   
   

   "1. The Department of Banking and Finance does not have jurisdiction over this Respondent.

   1. There is no jurisdiction in any administrative proceeding over this Respondent.

   2. There is no pending application for any mortgage broker's license by this Respondent.

   3. The application originally filed for the mortgage broker's license was withdrawn on January 19, 1977. A copy of the letter withdrawing application is attached hereto as Exhibit A.

   4. The proceedings are moot and would serve no useful purpose.

   5. Permitting this tribunal to proceed on a non-existent request for broker's license would deny to the Respondent due process of law, equal protection of the law, and his rights under the State and Federal Constitutions applicable thereto."

      
      

5. On March 4, 1977, the Division of Administrative Hearings received a letter from Eugene J. Cella, Assistant General Counsel, Office of the Comptroller, State of Florida, requesting a hearing in this cause be set at the earliest practical date, and enclosed in the letter requesting a hearing was a copy of the Division of Finance's Administrative Complaint and a copy of the Respondent's Special Appearance to Dismiss the Complaint.

   
   

6. A hearing was set for April 22, 1977, by notice of hearing dated March 30, 1977. A letter was sent by Irwin J. Block, Esquire, informing the attorney for the Petitioner that the Respondent "intends to permit the matter to proceed solely upon the written Special Appearance to Dismiss Complaint heretofore filed." Evidence was submitted to show that between May 29, 1973 and continuing through November 25, 1976, Guardian Mortgage and Investment Corporation and Melvin Haber as Secretary/Treasurer charged and received fees and commissions in excess of the maximum allowed fees or commissions in violation of the Florida Statutes and the Florida Administrative Code.

7. Respondent's application for registration as a mortgage broker indicated that Petitioner was not named in a pending lawsuit that charged him with any fraudulent or dishonest dealings. However, on August 5, 1976, a suit was filed in Dade County, Florida, which charged the Petitioner and others with fraud in violation of the Florida Securities Law.

   
   

8. The application was filed by Respondent, was processed by Petitioner and a Notice of Intent to Deny Respondent's Application for Registration was filed together with Administrative Charges and Complaint. The Division of Administrative Hearings has jurisdiction upon request of a party for a hearing once an application has been received and the Division has investigated and fully considered the application and issued its Notice of Intent to Deny and filed a Complaint on the applicant. In this cause the question of whether the applicant is entitled to a refund of fees also must be resolved. An orderly procedure to finalize the resolution of the issues is desirable and necessary.

   
   

9. The Proposed Order filed by the Petitioner has been examined and considered by the Hearing Officer in the preparation of this order.

   
   

   CONCLUSIONS OF LAW

   
   

10. Florida Statutes, Section 494.05(4), provides that the Petitioner may refuse a license if it determines that an applicant does not meet all of the requirements of Florida Statutes, Section 494.04. One of the requirements of Section 494.04 is that the Petitioner inquire into the experience, background, honesty, truthfulness, integrity and competency of the applicant as to financial transactions involving primary or subordinate mortgage financing.

    
    

11. Section 494.08(4) outlines the maximum fees or commissions which may be charged for any mortgage loans. Guardian Mortgage and Investment Corporation violated Section 494.08(4) by overcharge on the brokerage fee as shown by Petitioner's "Exhibit A."

    
    

12. The misrepresentation on the application for license failed to meet the standards of honesty, truthfulness and integrity required pursuant to Section 494.04(4).

    
    

13. There is no provision for the assessment or return of the Seventy-Five Dollar ($75.00) fee Respondent Melvin Haber was required to pay at the time he filed his application for a mortgage broker's license under Section 494.04, Florida Statutes, but Florida Administrative Code Rule 3D-40.03(2)(a) states: "License fees paid by applicants who fail to qualify for registration will be refunded."

RECOMMENDATION

Deny the application of applicant Melvin Haber for a mortgage broker's license. Refund the Seventy-Five Dollar ($75.00) fee Respondent paid upon filing the application.

DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Richard E. Gentry, Esquire Assistant General Counsel Office of the Comptroller Legal Annex

Tallahassee, Florida 32304

Irwin J. Block, Esquire

Fine, Jacobson, Block, Goldberg & Semet, P.A.

2401 Douglas Road

Miami, Florida 33145

Docket for Case No: 77-000449

Orders for Case No: 77-000449