STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BANKING AND FINANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2971

)

ASPEC, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on December 9, 1986, in Fort Lauderdale, Florida. The parties waived the time requirement that a Recommended Order be entered herein within thirty (30) days following conclusion of the hearing. Additionally, Petitioner's counsel, by letter dated March 23, 1987, advised the undersigned that Petitioner was not ordering a transcript based on a joint decision made by counsel to the effect that neither party would submit a Proposed Recommended Order.

APPEARANCES

For Petitioner: Miles J. Gopman, Esquire

Assistant General Counsel Office of Comptroller

401 Northwest 2nd Avenue, Suite 870 Miami, Florida 33128-1796

For Respondent: Ronald P. Glantz, Esquire

320 Southeast Ninth Street Fort Lauderdale, Florida 33316

ISSUE PRESENTED

The issue presented for decision herein is whether or not Respondent unlawfully refused to honor a subpoena issued by Petitioner as is more particularly set forth hereinafter in detail.

FINDING OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, and documentary evidence received including the deposition testimony of Kevin J. C. Gonzalez (Petitioner's Exhibit 1), I hereby make the following relevant factual findings.

1. Respondent, ASPEC, Inc., is a Florida Corporation engaged in the business of Mortgage Brokeraging in Florida. Shanker S. Agarwal is President of

   ASPEC, Inc. Mr. Agarwal has been licensed by Petitioner as a Mortgage Broker since May 24, 1985, and currently holds License No. HB-0016435 which expired, by its terms, August 31, 1986.

   
   

2. On February 14, 1986, Petitioner received a consumer complaint about ASPEC, Inc., and pursuant to its investigation of Respondent's brokerage activities, Petitioner sent a certified letter to ASPEC, Inc., on March 21, 1986, to the attention of President Agarwal requesting that an appointment be scheduled with its Area Financial Manager, Division of Finance, Paul Richman. The returned service of the referenced letter was postmarked April 14, 1986.

   
   

3. President Agarwal, or an officer from Respondent failed to schedule an appointment with Paul Richman as requested.

   
   

4. On May 22, 1986, Petitioner served Respondent a subpoena duces tecum on May 23, 1986, by its then Financial Examiner Analyst I, Kevin J. C. Gonzalez. (Petitioner's Exhibit 1, pp 9-10.)

   
   

5. The subpoena issued to President Agarwal requested that the custodian of records, an officer, director, employee or member of ASPEC, Inc., appear before Paul Richman on May 30, 1986, at 9:00 a.m. at Petitioner's Miami office and produce all books, papers and documents (of ASPEC, Inc.) from its inception to April 29, 1986, so that Petitioner could determine ASPEC's compliance with Chapter 494, Florida Statutes.

   
   

6. President Agarwal, or a representative on behalf of ASPEC, Inc., failed to appear at the date and time specified on the subpoena, or thereafter, at the designated place to produce the requested documents.

   
   

7. Respondent has challenged on constitutional and other procedural grounds, the Petitioner's authority to conduct an investigation of Respondent as a licensee under the Mortgage Brokerage Act. Respondent's challenges were determined to be either beyond the authority of the undersigned or lacked merit, and rulings to this effect were made during the course of the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

9. The parties were duly noticed pursuant to notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the Petitioner, Department of Banking and Finance, is derived from Chapter 494, Florida Statutes.

    
    

11. Section 494.05(1), Florida Statutes (1985), authorizes the Petitioner to conduct investigations of Respondent as a licensee under the Mortgage Brokerage Act.

    
    

12. Section 494.06(5), Florida Statutes (1985), provides in pertinent part that:

The department may, at intermittent periods, make such investigations and examinations of any licensee . . . as its deems necessary to

determine compliance with this act. For such purposes, it may examine the books, account records and other documents or matters of

any licensee . . . it shall have the power

to compel its production of all relevant books, records and other documents and material relevant to an examination or investigation.

Respondent's failure to produce the documents sought by Petitioner in the subpoena served upon Respondent on May 23, 1986, amounts to proscribed conduct within the purview of Section 494.05(1)(g), Florida Statutes. Respondent thereby failed to comply with a lawful order, rule or regulation made or issued under the provisions of the Mortgage Brokerage Act.

Based thereon, it is concluded that Respondent engaged in conduct within the purview of Sections 494.05(1)(g) and (3), Florida Statutes (1985).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

Petitioner enter a Final Order suspending the Mortgage Brokers License No.

HB-0016435 issued to Respondent for a period of (1) year.

RECOMMENDED this 8th day of May 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of May 1987.

COPIES FURNISHED:

Miles J. Gopman

Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399

Mr. Shanker S. Agarwal, President

ASPEC, INC

6912 Stirling Road

Hollywood, Florida 33024

Ronald P. Glantz, Esquire

320 Southeast 9th Street

Fort Lauderdale, Florida 33316

Hon. Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0305

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AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DIVISION OF FINANCE DEPARTMENT OF BANKING AND FINANCE

Petitioner,

ADMINISTRATIVE

vs. PROCEEDING NO:

659-F-5/86

ASPEC, INC., DOAH CASE NO:

86-2971

Respondent.

/

FINAL ORDER

This matter has come before the Comptroller of the State of Florida, as head of the Department of Banking and Finance, Division of Finance, pursuant to Section 20.12, Florida Statutes, for the issuance of a Final Order as provided in Sections 120.57(1) and 120.59, Florida Statutes, after a duly noticed Administrative Hearing before James E. Bradwell, Hearing Officer with the Division of Administrative Hearings held on December 9, 1986 in Fort Lauderdale, Florida; and pursuant to the authority vested in the Department of Banking and Finance, Division of Finance (hereinafter DEPARTMENT), to administer and enforce the provisions of the Mortgage Brokerage Act, Chapter 494, Florida Statutes.

Having considered the recommended order of the Hearing Officer that was duly issued as provided by Section 120.57(1)(b)8 on May 8, 1987; having noted that no exceptions, as authorized by Section 120.57(1)(b)8 Florida Statutes, have been received; and after a careful review of the record before the Hearing Officer as required by Section 120.57(1)(b)9 Florida Statutes, the undersigned, as Comptroller of the State of Florida, being duly authorized and empowered to do so, does herewith adopt the Hearing Officer's recommended order as the Final Order of the Department, on the basis of the following Findings Of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Respondent, ASPEC, Inc., is a Florida Corporation engaged in the business of Mortgage Brokerage in Florida. Shanker S. Agarwal is President of ASPEC, Inc. Mr. Agarwal has been licensed by the Department as a Mortgage Broker since May 24, 1985 and currently holds License No. HB-0016435 which expired, by its terms, August 31, 1986.

   
   

2. On February 14, 1986, the Department received a consumer complaint about ASPEC, Inc., and pursuant to its investigation of Respondent's brokerage activities, the Department sent a certified letter to ASPEC, Inc., on March 21, 1986, to the attention of President Agarwal requesting that an appointment be scheduled with its Area Financial Manager, Division of Finance, Paul Richman. The returned service of the referenced letter was postmarked April 14, 1986.

   
   

3. President Agarwal, or an officer from Respondent failed to schedule an appointment with Paul Richman as requested.

   
   

4. On May 22, 1986, the Department served Respondent a subpoena duces tecum on May 23, 1986, by its then Financial Examiner Analyst I, Kevin J.C. Gonzales. (Petitioner's Exhibit 1, pp 9-10.)

   
   

5. The subpoena issued to President Agarwal requested that the custodian of records, an officer, director, employee or member of ASPEC, Inc. appear before Paul Richman on May 30, 1986, at 9:00 a.m. at the Department's Miami Office and produce all books, papers and documents (of ASPEC, Inc.) from its inception to April 29, 1986, so that the Department could determine ASPEC's compliance with Chapter 494, Florida Statutes.

   
   

6. President Agarwal, or a representative on behalf of ASPEC, Inc., failed to appear at the date and time specified on the subpoena, or thereafter, at the designated place to produce the requested documents.

   
   

7. Respondent has challenged on constitutional and other procedural grounds, the Department's authority to conduct an investigation of Respondent as a licensee under the Mortgage Brokerage Act. Respondent's challenges were determined to be either beyond the authority of the Hearing Officer or lacked merit, and rulings to this effec were made during the course of the hearing.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings had jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

2. The parties were duly noticed pursuant to notice provisions of Chapter 120, Florida Statutes.

   
   

3. The authority of the Petitioner, Department of Banking and Finance, is derived from Chapter 494, Florida Statutes.

   
   

4. Section 494.05(1), Florida Statutes (1985), authorizes the Department to conduct investigations of Respondent as a licensee under the Mortgage Brokerage Act.

5. Accordingly, based upon the foregoing, the Respondent has engaged in conduct for which the Department is empowered to suspend its license pursuant to Section 494.05(1)(g) and (3), Florida Statutes (1985).

WHEREFORE, it is hereby ordered that the mortgage brokerage license number HB-0016435 heretofore issued to the Respondent, ASPEC, INC., shall be suspended for a period of one year, effective immediately, during which time said Respondent shall remain subject to the requirements of Chapter 494, Florida Statutes, regarding the production of books and records, and its failure to abide by any future order, request and/or subpoena from the Department to produce books and records shall subject its license to revocation.

DONE AND ORDERED this 29th day of June, 1987, in Tallahassee, Leon County, Florida.

GERALD LEWIS, COMPTROLLER OF THE STATE OF FLORIDA, AND AS HEAD OF THE DEPARTMENT OF BANKING AND FINANCE

COPIES FURNISHED:

James E. Bradwell Hearing Officer,

Division of Administrative Hearings The Oakland Building,

2009 Apalachee Parkway

Tallahassee, Florida 32301

Mr. Shanker Agarwal, president ASPEC, INC.

6912 Stirling Road

Hollywood, Florida 33024

Ronald P. Glantz, Esquire

320 S.E. 9th Street

Ft. Lauderdale, Florida 33316

Walter W. Wood, Esquire Deputy General Counsel

Department of Banking and Finance The Capitol

Suite 1302

Tallahassee, Florida 32399-0305

Randall A. Holland, Director Department of Banking and Finance Division of Finance

Fuller-Warren Building, Second Floor

202 Blount Street

Tallahassee, Florida 32399-0350

NOTICE OF RIGHTS

Notice is hereby provided in accordance with Section 120.59(4), Florida Statutes, that judicial review of the accompanying Final Order of Suspension may be sought within 30 days of its rendition in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes, by filing a Notice of Appeal with the clerk of the Department of Banking and Finance, Suite 1302, The Capitol, Tallahassee, Florida 32399-0350, and at the same time filing a copy of such notice together with the prescribed filing fees with the Clerk of the First District Court of Appeals, in Tallahassee, Florida or with the Clerk of the District Court in whose jurisdiction you reside.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order of Suspension was served by U.S. Mail upon the Respondent, ASPEC, INC., and its attorney of record, Ronald P. Glanz, at their respective above described addresses, this 30th day of June, 1987.

WALTER W. WOOD

Deputy General Counsel Department of Banking and Finance,

The Capitol, Room 1302 Tallahassee, Florida 32399-0350

(904) 488-9896

Docket for Case No: 86-002971

Orders for Case No: 86-002971