STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL A. DALTON, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2987

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 12 February 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: Michael A. Dalton, pro se

11826 North Armenia Street Tampa, Florida 33612

For Respondent: Walter W. Wood, Esquire

Office of the Comptroller The Capitol

Tallahassee, Florida 32301

By Petition for Public Hearing filed 18 November 1981 Michael A. Dalton, Petitioner, seeks a hearing on the Department of Banking and Finance's, Respondent's, denial of his application for licensure as a mortgage solicitor. By Final Order dated 5 November 1981 Respondent denied Petitioner's application based upon Findings of Fact and Conclusions of Law which preceded the Final Order. Respondent's prehearing motion that the Hearing Officer take official recognition of all arrest records, police department records, and court records involving Petitioner was denied by Order entered 18 January 1982. In that Order Respondent was advised that certified copies of "records will be deemed self- authenticating as provided in Section 90.902, Florida Statutes."

At the hearing Petitioner called two witnesses, including himself, and five exhibits were offered into evidence. Objection to Exhibit 3, a composite of six statements regarding Petitioner's good character, on grounds of hearsay, was sustained. All other exhibits were admitted.

FINDINGS OF FACT

1. By application dated 20 June 1980 Petitioner seeks licensure as a mortgage solicitor. The mortgage broker for whom Petitioner works recommended the application be approved.

2. In the application Petitioner answered Question 5, which asks if he had ever been arrested or indicted for crime, "Yes." He did not attach a notarized statement with his application, but by letter dated July 18, 1981, Petitioner submitted his version of his arrest in October 1976 and conviction by Mexican authorities for possession of marijuana. This included the information that two other Americans who were arrested with Petitioner were able to post $5,000 bail and leave the country while Petitioner, who could not post bail, received a sentence of six years imprisonment.

   
   

3. By letter dated August 10, 1981, Respondent advised the Petitioner that a report of earlier arrests of Petitioner had been received from the FBI and Petitioner was directed to submit a certified statement as to the facts and circumstances concerning those arrests. This letter was never received by Petitioner and the certified statement was never submitted.

   
   

4. In Respondent's findings of fact leading to the order denying Petitioner's application, Respondent found Petitioner untruthful in failing to disclose numerous traffic and DWI offenses from 1974, when Petitioner was a minor, through 1981. In Petitioner's explanation of his failure to fully disclose, Petitioner testified he did not understand he was to include traffic offenses or those offenses occurring while he was a juvenile. His latest arrest for DWI occurred July 18, 1981, subsequent to the filing of his application.

   
   

5. Respondent further found Petitioner not qualified for licensure by reason of perjuring himself by claiming, in answer to Question 13, that he was engaged in the export business during part of the time Petitioner was in jail in Mexico. Petitioner testified that while in the Mexican prison he was allowed to organize some of the prisoners to sew leather goods, make macrame handbags and other handmade items which he shipped to his stepfather in the United States for resale. Petitioner's mother provided him with funds while in the Mexican jail to conduct this business. Exhibit 4 constitutes evidence of one such shipment to corroborate Petitioner's testimony.

   
   

6. Respondent further found that, after Petitioner had been released on parole following a Mexican-American prisoner exchange, he failed to disclose that he had been arrested by U.S. officials for violation of his parole and imprisoned for six months. Petitioner's testimony that he did not understand this to be criminal arrest is corroborated by letter dated January 13, 1982, from the U.S. Probation Office that a parole violation is an administrative procedure rather than a criminal offense, that the basis for Petitioner's revocation was a technical violation by failure to report a change in residence to his probation officer within two days and failure to report to his probation officer as directed (Exhibit 2). The outstanding warrant for Petitioner's arrest for parole violation was discovered when he was arrested by the Bradenton police on a traffic offense in 1980 and the U. S. Marshal was notified.

   
   

7. Respondent further found that Petitioner had answered Question 9, whether his license of any kind had ever been denied, revoked or suspended, "No," when, in fact, his driver's license had been revoked. Question 8 asks if applicant has ever been licensed in any state as a real estate broker or salesman, or as an insurance agent or solicitor, or as a mortgage broker or solicitor, or as a security salesman, or broker; to which Petitioner answered "No." Petitioner and his mother, a college graduate who has done social work for twenty-five years and helped him with his application, testified that Question 9 was believed to refer to the type licenses named in Question 8, and not to driver's licenses. This is not an unreasonable interpretation of the meaning of Question 9.

8. When the examination for mortgage broker was given in the summer of 1981, Petitioner passed the examination with a grade of 85.

   
   

9. At the time of his application and at the time of the hearing Petitioner was employed by Gulf West Financial Corporation in St. Petersburg as office manager. As such he supervises the work of licensed mortgage brokers, assembles the necessary documents for a mortgage application file and has general supervision of the office and reports emanating therefrom. Gulf West financing is primarily engaged in brokering second mortgages.

   
   

10. Following his release on parole in 1978 Petitioner started in a management training program for Family-Mart and, upon completion, was employed by Family-Mart. He supervised some sixty cashiers, was responsible for opening the store each day and had the responsibility of accounting for a considerable sum of cash on a daily basis. No reason for terminating his employment with Family-Mart in February 1979 was given but, thereafter, petitioner did construction work and odd jobs until his arrest on a traffic offense in June 1980 which, in turn, led to his arrest for Parole violation and incarceration until December 19, 1980. From June 1981 to the present time Petitioner worked for Gulf West Financial Corporation.

    
    

11. Petitioner is thirty-one years old, has completed three years of college and, but for the Mexican arrest and conviction, has committed no offense more serious than driving while intoxicated. He has held numerous jobs and, unless disqualified by reason of his arrest record, is qualified for licensure.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Section 494.04(4), Florida Statutes, in establishing the requirements for licensing mortgage solicitors, provides in pertinent part:

    
    

    The department shall require such informa- tion with regard to the applicant as it may deem desirable, with due regard to the para- mount interests of the public, as to the experience, background honesty, truthfulness, integrity and competence of the applicant as to financial transactions involving primary or subordinate mortgage financing. . . .

    
    

14. Petitioner has demonstrated sufficient experience and background to qualify as a mortgage solicitor. No evidence reflecting adversely on his honesty, truthfulness, integrity or competency to perform the functions of a mortgage solicitor was presented. The most serious accusation against Respondent is that he was untruthful in not fully disclosing his arrest record involving traffic offenses and DWI offenses. He did report the more serious offense for which he was arrested and Sentenced to six years in a Mexican prison. His testimony that he never received the August 10, 1981, letter from Respondent asking for details of all his arrests was corroborated by the testimony of his mother, that she picked up all of Petitioner's mail and that he

    did not receive the August 10, 1981, letter from Respondent. While such testimony could be self-serving, the demeanor of these witnesses is such that this testimony is believed. Licenses referred to in Question 9 relate to the licenses enumerated in Question 8 and licenses of a similar nature. Drivers' licenses are not in the same category as brokers' or salesmen's licenses.

    Accordingly, Petitioner's answer to Question 9 in the application was not false.

    
    

15. Having a record of arrest for traffic offenses and DWI's does not demonstrate Petitioner to be a sterling applicant. On the other hand, those offenses do not relate to Petitioner's honesty, integrity or competency to serve as a mortgage solicitor, or reflect adversely thereon.

    
    

16. It is noted that Petitioner was not represented by counsel and that he did not present testimony, other than by himself and his mother, regarding his reputation for honesty and his qualifications as a mortgage solicitor.

    Testimony of such witnesses is inherently suspect as being self-serving. Had he been adequately represented, testimony of persons unrelated to petitioner obviously would have been presented.

    
    

17. Respondent's objection to Exhibit 3 was sustained on grounds of hearsay. A reading of that exhibit indicates these were letters prepared for the probation officer prior to the revocation of his parole and his incarceration for six months. None of those letters relate specifically to his qualification for licensure as a mortgage solicitor.

    
    

18. Any finding of fact herein made which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is adopted as a finding of fact.

From the foregoing it is concluded that Petitioner did not fully disclose his arrest record in his application but that his failure to do so stemmed from lack of understanding and was not due to a nefarious nature. It is, therefore,

RECOMMENDED that Petitioner be allowed to submit amended answers to Questions 5 and 13, in which all of his arrests and jobs held during the times indicated are listed and that, upon receipt of this information, his application for licensure as a mortgage solicitor be approved.

ENTERED this 4th day of March, 1982, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 4th day of March, 1982.

COPIES FURNISHED:

Walter W. Wood, Esquire Michael A. Dalton

Assistant General Counsel 11826 North Armenia Office of the Comptroller Tampa, Florida 33612 The Capitol

Tallahassee, Florida 32301

Gerald A. Lewis, Comptroller State of Florida

The Capitol

Tallahassee, Florida 32301

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

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

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DIVISION OF FINANCE

IN RE:

MICHAEL A. DALTON, Application Administrative Proceeding for Mortgage Solicitor License, Number 81-12-DOF (MS)

DOAH CASE NO. 81-2987

Respondent.

/

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order of the Hearing Officer, K. N. Ayers, dated January 18, 1982, a copy of which Order is attached hereto and incorporated herein, are adopted as the Findings of Fact of the Department.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Conclusions of Law set forth in the Recommended Order of the Hearing Officer, K. N. Ayers, dated January 18, 1982, a copy of which Order is attached hereto and incorporated herein, are adopted as the Conclusions of Law of the Department.

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is the decision of the Department that the application of the Respondent, Michael A. Dalton, for a mortgage solicitor license under the provisions of Chapter 494, Florida Statutes, should be granted.

DONE AND ORDERED at Tallahassee, Florida, this 29th day of March, 1982.

GERALD LEWIS, as Comptroller and Head of the Department of Banking and Finance, Division of Finance

COPIES FURNISHED:

James H. Allen, Director Division of Finance

The Capitol, Suite 1401 Tallahassee, Florida 32301

K. N. Ayers, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Michael A. Dalton 11826 North Armenia

Tampa, Florida 33612

Walter W. Wood

Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301

Docket for Case No: 81-002987

Orders for Case No: 81-002987