STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE CASTRO, )

)

Petitioner, )

)

vs. ) CASE NO. 81-037

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 359, Ernest R. Graham Building, 1350 N. W. 12th Avenue, Miami, Florida, commencing at 9:30 A.M., March 26, 1981.

APPEARANCES

For Petitioner: Peter Kutner, Esquire

3628 N. E. 2nd Avenue Miami, Florida 33137

For Respondent: Douglas R. Gardner, Esquire

Assistant General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32301

ISSUE

This concerns the question of the Petitioner, George Castro's entitlement to be granted a mortgage solicitor's license by the Respondent, State of Florida, Department of Banking and Finance. See Chapter 494, Florida Statutes.

FINDINGS OF FACT

1. The Petitioner in this action is an individual who desires to be licensed as a mortgage solicitor in the State of Florida. The Respondent in this cause, State of Florida, Department of Banking and Finance, is an agency within the State of Florida, which has, among other functions, the licensure and regulation of those persons who would practice as a mortgage solicitor.

   
   

2. At the commencement of the hearing in this cause, it was stipulated to between the parties that all requirements for the licensure of the Petitioner as a mortgage solicitor in the State of Florida related to the application form for registration have been met, with the exception that the answer to question (5) on the mortgage solicitor's application executed by the Petitioner, by its terms, would allegedly cause the denial of the application premised upon the

   requirements and conditions of Subsections 494.04(4) and 494.05(4), Florida Statutes. 1/ In particular, the Respondent contends that the initial answer to question (5), given under oath by the Petitioner contains substantive omissions or misstatements of material facts demonstrating that the Petitioner was engaging in the course of conduct which exhibits a lack of honesty, truthfulness and integrity, within the meaning of Subsection 494.04(4), Florida Statutes, and that the eventual correct answer to question (5) relating to arrest and indictments for crimes were, by their substance, such that it would cause the rejection of Petitioner as an applicant for licensure as mortgage solicitor, premised upon his alleged lack of honesty, truthfulness and integrity, again within the meaning of Subsection 494.04(4), Florida Statutes.

   
   

3. In an effort to obtain a mortgage solicitor's license, the Petitioner, George Castro, executed an application form provided by the Respondent, and through that action answered question (5) in the affirmative. He also indicated that an affidavit was attached. Question (5) makes the inquiry, "Have you ever been arrested or indicted for crime?" It goes on to request "If your answer is in the affirmative, attach complete signed notarized statement of the charges and facts, together with the name and location of the court in which the proceedings were held or are pending."

   
   

4. The Petitioner reviewed this question and further requirement and sought the assistance of his probation officer in an effort to comply with question (5). After placing next to question (5), the word "yes," and the words "affidavit attached," which words were found in parentheses, he went to the probation office in Dade County, Florida, in view of his probation and parole status arising out of a conviction in the Superior Court of Lumokin County, Georgia, to the charges of violation of the Georgia Controlled Substance Act, dating from an arrest in late 1976, or early 1977. His entry of a guilty plea was made on June 15, 1977, and he was adjudged guilty by the Georgia court and sentenced to confinement for a period of ten (10) years, five years to be served and the balance to be probated. On June 25, 1979, an amended order of the court was entered reducing the sentence which was imposed on June 15, 1977, to allow service of the balance of his sentence on probation and parole supervision through a transfer arrangement with the State of Florida. The Petitioner actually served approximately seven (7) months in prison. After June 28, 1979, he was under probation and parole supervision in the State of Florida and is still in their charge.

   
   

5. Castro's intentions on, arriving at the probation and parole office was to have his probation and parole supervisor complete question (5) by making out an affidavit over the signature of the supervisor. The supervisor was not available and the application form and request was left with Castro's supervising officer's superior. Castro then operated on the assumption that the official would know how to respond to question (5), in view of the fact that Castro was of the opinion that a "rap sheet" containing his prior arrest history would be available to the probation and parole official in completing the affidavit.

   
   

6. An affidavit was made by Lester R. Brandt, Supervisor, Probation and Parole Services within the State of Florida, Department of Corrections. That affidavit may be found as part of the Joint Composite Exhibit No. 1, admitted into evidence at the hearing. That exhibit also contains a copy of the application form. By the affidavit, Brandt alludes to the Georgia conviction in a general way but fails to make mention of any other offenses for which the Petitioner had been arrested.

7. Once the affidavit had been completed, the affidavit and application form were placed in a preaddressed and stamped envelope provided by the Petitioner and sealed. The Petitioner returned to the office of the Probation and Parole Services and picked up that envelope containing the application and affidavit and mailed those items without examining the attached affidavit.

   
   

8. When the application and affidavit form were received by the Respondent's office in Tallahassee, Florida, and compared with a "rap sheet" provided by the State of Florida, Department of Law Enforcement, it was determined that the affidavit failed to speak to certain items found on that "rap sheet."

   
   

9. The "rap sheet" may be found as Respondent's Exhibit No. 1, admitted into evidence. On that sheet are arrests dating from January 1, 1976, related to a reckless driving matter which lead to a fine against the Petitioner. The next item dated April 9, 1976, related to driving offenses and other matters set forth, lead to a fine placed upon a plea to being guilty of public intoxication. An arrest from January 30, 1977, in St. Lucie County, Florida, lead to dismissals of those actions by Nolle Prosse. The arrest in Georgia as related herein brought about the judgment and sentence referred to above. Concerning a May 11, 1979, arrest for driving while intoxicated, the disposition was not clear in terms of the testimony presented at the hearing. It was, however, revealed that the Petitioner has had his driver's license privilege suspended due to an accumulation of adverse points and now may only drive to school and work by special permission of the Florida Department of Highway Safety and Motor Vehicles.

   
   

10. When confronted with the failure to mention the other related matters found in the "rap sheet," aside from the Georgia experience, the Petitioner stated that he did not intend to omit or misstate his answer to question (5), instead it was a matter of oversight.

    
    

11. Nonetheless, in Administrative Proceeding No. 80-19DOF (MB) the State of Florida, Department of Banking and Finance, offered a proposed final order which would deny the application of George Castro premised upon alleged substantive omissions or misstatements of material facts which put at issue the Petitioner's honesty, truthfulness and integrity as required by Subsection 494.04(4), Florida Statutes. This proposed order was entered on December 4, 1980, and contemporaneously the Petitioner was afforded a right to hearing on the question of his application and through the present hearing processes, availed himself of that opportunity. The proposed order and notice of right to hearing may be found in the Joint Composite Exhibit No. 1, admitted into evidence.

    
    

12. Persons who have known the Petitioner for a period of two to two and one half years, one of which was a former Federal Bureau of Investigation Agent and the other a Senior Personnel Officer in the City of Miami, Florida, gave testimony at the hearing and spoke positively of the Petitioner's present propensity for truthfulness, honesty and integrity. Those persons have familiarity with the Petitioner's family, the former FBI Agent who is now a consultant in real estate type pursuits, having business relationships with the Petitioner's father by way of receiving advice from the Petitioner's father on real estate matters and the personnel officer being a family friend of the father's of long standing duration. The City official has indicated willingness to give an accounting position to the Petitioner in the City of Miami if that position were available. Neither of these individuals has seen the petitioner under the influence of any form of drug, be it alcohol or narcotics, within the

    time that they have known him. The former FBI Agent has seen the Petitioner approximately thirty (30) times in the two and one half years he has known him and the City official sees the Petitioner twice a week on an average.

    
    

13. The Petitioner, while serving his probation and parole responsibility has been found to be a model probationer as stated in the affidavit.

    
    

14. Castro is now employed as a runner for a mortgage broker, and that mortgage broker would be willing to hire the Petitioner as a mortgage solicitor if he is entitled to be granted a mortgage solicitor's license, to include passage of the mortgage solicitor's test.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

16. While it is obvious that the Petitioner failed to answer question (5) completely, and by inappropriately relying on officials within the probation and Parole Services to be responsible for his application, evidenced a certain degree of irresponsibility, this omission and resulting misstatement of material fact was not intentional and did not reach the level of exhibiting a lack of honesty, truthfulness and integrity required by Subsection 494.04(4), Florida Statutes. Therefore, this error in judgment should not lead to the Department's refusal to license this applicant per Subsection 494.05(4), Florida Statutes.

    
    

17. Likewise, the compilation of violations committed by the petitioner which are in close proximity of time and at a period when the Petitioner was eighteen or nineteen years old, should not, by their substance, cause the petitioner to be rejected as a license applicant. He was fined for reckless driving and public intoxication in 1976. The series of charges in St. Lucie County, Florida, were dismissed. The drug arrest and conviction and service of prison time which came about through the Georgia conviction while serious, must be considered in the face of Petitioner's attempts to rehabilitate himself. He has been found to be a model probationer and it would not appear to be in the best interest of the citizens of the State of Florida whom the Respondent is charged with protecting through Chapter 494, Florida Statutes, or in the best interest of the petitioner who through this circumstance is at a turning point in his life which either leads to his participation in society as a productive employee in an honorable profession or possibly to return to the mistaken and destructive conduct of his youth. It is, therefore,

RECOMMENDED:

That the petitioner, George Castro, be granted the opportunity to be licensed as a mortgage solicitor in the State of Florida, subject only to the satisfactory completion of the mortgage solicitor's examination and the payment of necessary fees.

DONE and ENTERED this 14th day of April, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1981.

ENDNOTE

1/ Section 494.04

(4) Each application for a license or for a renewal thereof, shall be made in writing, on such forms and in such manner and accompanied by such evidence in support of such application as prescribed by the department. An investigation fee of $50, which shall not be subject to refund, shall be paid by each new applicant, other than for a branch office. The department shall require such information with regard to the applicant as it may deem desirable, with due regard to the paramount interests of the public, as to the experience, background, honesty, truthfulness, integrity, and competency of the applicant as to financial transactions involving primary or subordinate mortgage financing, and where the applicant is a person other than an individual, as to the honesty, truthfulness, integrity, and competency of any officer or director of such corporation, association, or other group, or the members of such partnership. For examination purposes, the department may prepare a handbook for mortgage brokers and distribute same on request to applicants, provided a reasonable charge shall be made therefor. Each applicant, including designated officers or members as otherwise provided in this section, shall file a complete set of fingerprints taken by an authorized law enforcement officer. Said fingerprints shall be submitted to the Department of Law Enforcement or the Federal Bureau of Investigation for state and federal processing. Section 494.05 (4) The department may refuse a license if it determines that an applicant does not meet all requirements of s. 494.04 or has violated any provision of this chapter.

COPIES FURNISHED:

Peter Kutner, Esquire 3628 N.E. 2nd Avenue Miami, Florida 33137

Douglas R. Gardner, Esquire Assistant General Counsel Department of Banking and

Finance

Room 1302, The Capitol Tallahassee, Florida 32301

Docket for Case No: 81-000037

Orders for Case No: 81-000037