STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

In the Matter of: )

)

Application for Authority )

to Organize Pine Banking ) CASE NO. 90-2997 Corporation, Miami, Dade County, )

Florida (Proposed New Bank). )

)

REPORT OF PUBLIC HEARING

Pursuant to Section 120.60(5)(d), Florida Statutes, a public hearing was conducted by Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 5, 1990, in Miami, Florida.

APPEARANCES

For the Applicants: Raul J. Valdes-Fauli, Esquire

Robert S. Turk, Esquire

Suite 3400, One Biscayne Tower

2 South Biscayne Boulevard Miami, FL 33131-1897

For Respondent: Albert T. Gimbel

Chief Banking Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32399-0350

PRELIMINARY STATEMENT

In February, 1990, an Application to the Florida Department of Banking and Finance for Authority to Organize a Bank Pursuant to Chapter 658, Florida Statutes (hereinafter referred to as the "Application"), was received by the Department of Banking and Finance, Division of Banking (hereinafter referred to as the "Department"). Pursuant to the Application, authority was sought to organize Pine Banking Corporation as a bank in the State of Florida. Three foreign nationals (hereinafter referred to as the "Applicants") are associated with the Application.

On May 17, 1990, the Department referred the matter to the Division of Administrative Hearings by letter from counsel for the Department. Accompanying the letter was a copy of an Administrative Notice of Public Hearing issued by the Department on May 17, 1990, and a copy of the Application.

The matter was assigned to the undersigned to conduct a public hearing pursuant to Section 120.60(5)(d), Florida Statutes. Toward this end, the parties were contacted by telephone to determine an acceptable date and place for the public hearing. It was agreed that the public hearing would be conducted on October 5, 1990, in Miami, Florida. Notice of the public hearing was provided by the Applicants as required by Section 120.60(5)(d), Florida Statutes.

The public hearing convened on October 5, 1990. No member of the public indicated any desire to present evidence during the public hearing. The Applicants were prepared to present a prima facie case to support their entitlement to approval of the Application. The undersigned explained to the parties that the purpose of the public hearing was to allow members of the public to present evidence concerning the Application and not to require the Applicants to present a prima facie case. The undersigned did, however, allow the Applicants to present a brief case.

The Applicants presented the testimony of Francisco Pinheiro, Alberto Espinosa and David Starke. The Applicants offered two exhibits which were accepted into evidence without objection. The Applicants were present at the public hearing. The Department did not call any witnesses or offer any exhibits.

Both parties were given an opportunity to file a proposed report. Both parties declined to file a proposed report.

A copy of the transcript of the public hearing was filed with the Division of Administrative Hearings on November 20, 1990, by counsel for the Applicants. The official transcript was filed November 28, 1990.

FINDINGS OF FACT

1. The Application involves the proposed organization of a new bank in the State of Florida, Pine Banking Corporation (hereinafter referred to as the "Proposed Bank").

   
   

2. The Applicants, Francisco Jaime Pinheiro, Nelson Pinheiro and Noberto Pinheiro, are citizens of Brazil.

   
   

3. Francisco Pinheiro has been in the banking business for 20 year. Francisco Pinheiro has been the president of BMCSA, a wholesale bank in Brazil, for 14 years. Francisco Pinheiro is a vice-president of the Federation of Brazilian Banks.

   
   

4. BMCSA has been in operation for 51 years. It has branches in 15 of the most important capitols of Brazil. It has capital equity of approximately 100 million dollars and assets of approximately 700 million dollars.

   
   

5. During the past 5 years, BMCSA has been cited by a financial magazine in Brazil as having the best development and performance in Latin America.

   
   

6. There are approximately 300 banks in Brazil. BMCSA ranks between the 18th and 22nd largest bank in Brazil.

   
   

7. The Applicants desire to form a bank in Florida in order to support small and medium sized export companies.

   
   

8. The Applicants have worked in the international market since 1982, mainly through United States' banks in New York.

   
   

9. The proposed president and chief executive officer of the Proposed Bank is Alberto Espinosa. Mr. Espinosa has been in the banking business in the United States for approximately 22 years. For the past 17 years Mr. Espinosa has been involved in international banking.

10. Mr. Espinosa was the general manager for the Bank of New England International, the Edge Act Bank of New England.

    
    

11. Mr. Espinosa worked in Miami, Florida, from 1976 through 1979, and during the past five years. He is, therefore, familiar with the community that the Proposed Bank will serve.

    
    

12. The proposed board of the Proposed Bank will consists of people in the community with a variety of backgrounds: a CPA, a banking attorney, exporters, freight forwarders and bankers. At least six members have banking experience.

    
    

13. The head of credit of the Proposed Bank will be Maria Justo, who occupied a similar position at the Bank of New England, the Edge Act Bank of New England. The Proposed Bank will have a credit committee on the board responsible for every credit the bank proposes.

    
    

14. One officer will be hired to insure compliance with the Community Reinvestment Act.

    
    

15. Initial capital for the Proposed Bank will be $5,000,000.00.

    
    

16. The economic study used to determine public convenience and necessity was prepared by David Starke, president of Financial Institution Consultants, Inc. Financial Institution Consultants, Inc., is engaged in activities as a consultant to financial institutions. The company provides services involving banking charters, branching, mergers, acquisitions and regulatory matters.

    
    

17. Mr. Starke opined that the primary service area of the Proposed Bank, which consists of all of Dade County, Florida, was drawn in accordance with Chapter 3C-9, Florida Administrative Code, the Proposed Bank will enhance public convenience and advantage, there is a reasonable probability of success without undue injury to any other existing financial institution and the proposed capital is adequate.

DONE and ENTERED this 4th day of December, 1990, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1990.

COPIES FURNISHED:

Raul J. Valdes-Fauli, Esquire Robert S. Turk, Esquire

Suite 3400, One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131-1897

Albert T. Gimbel Chief Banking Counsel

Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0350

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DIVISION OF BANKING

IN RE:

Application for Authority to

Organize a State Chartered Bank Administrative Proceeding to be located at 100 South Bayshore Number: 2770-B

Drive, Miami, Dade County, Florida DOAH Case Number: 90-2997 (Pine Banking Corporation)

/

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

Having considered the facts and information contained in the application for authority to organize and operate Pine Banking Corporation (Applicant), I have determined that the Applicant has met all seven (7) statutory criteria set forth in Section 658.21, Florida Statutes, or can meet those criteria by complying with the specific conditions set forth below.

Accordingly, the application is approved, subject to the conditions specified herein.

FINDINGS OF FACT

The pertinent facts relating to the application are accepted by the Department as set forth by the Applicant. Approval of the application is based upon the following factual circumstances:

1. Application to organize Pine Banking Corporation was filed with the Department on February 7, 1990.

   
   

2. Application for insurance of accounts was approved by the Federal Deposit Insurance Corporation on January 17, 1990.

   
   

3. The corporate name proposed and reserved with the Department of State is Pine Banking Corporation.

   
   

4. The proposed address is 100 South Bayshore Drive, Brickell Bay Office Tower, Miami, Dade County, Florida 33131.

5. The proposed Board of Directors is as follows: Miriam Cabeza Edward Novakoff

   Miami, Florida Key Biscayne, Florida

   
   

   Heberto R. C. Espinosa Francisco Jamie N. Pinheiro Coral Gables, Florida Sao Paulo, Brazil

   
   

   Frank D. Garcia Nelson N. Pinheiro Miami, Florida Sao Paulo, Brazil

   
   

   Maria L. Justo William D. Rodriguez

   Miami, Florida Coconut Grove, Florida

   
   

   Thomas D. Lumpkin, II Marcelino Vazguez Miami, Florida Miami, Florida

   
   

   Jose A. Maruri Miami, Florida

   
   

6. The proposed President/Chief Executive Officer is Heberto R. C. Espinosa.

   
   

7. Applicant proposes to sell 100,000 shares of common stock for $50.00 per share, producing $5,000,000 from proceeds of the sale. After payment of net organization expenses of $100,000; Applicant proposes to allocate net capital funds of $4,900,000 as follows:

   
   

   Paid-in Capital $2,500,000

   (100,000 shares of $25.00 par value)

   Paid-in Surplus

   (at least 20 percent of Common Stock) 2,000,000 Undivided Profits

   (at least 5 percent of Common Stock) 400,000 Total Capital Accounts $4,900,000

   
   

8. Jose A. Maruri has direct financial institution experience within three

   (3) years of the date of the subject application, as required by Subsection 658.21(5), Florida Statutes.

9. Total shares authorized to be issued is 200,000 shares.

   
   

10. Of the 100,000 shares of common stock proposed to be sold by Applicant, Francisco Jaime N. Pinheiro intends to purchase 50 percent, Nelson N. Pinheiro 25 percent, and Noberto N. Pinheiro at least 10 percent.

    
    

11. The Findings of Fact set forth in the Report of Public Hearing, dated October 5, 1990, issued by Larry J. Sartin, are attached as Exhibit "A" and incorporated herein by reference.

    
    

    CONCLUSIONS OF LAW

    
    

12. The statutory criteria set forth in Chapter 658, Florida Statutes, are the standards which govern this application. Chapter 3C-10, Florida Administrative Code, contains the rules under which this application was considered. As set forth in Rule 3C-10.0051, Florida Administrative Code, when an application for authority to organize and operate a new state bank is filed, it is the applicant's responsibility to prove that the statutory criteria which warrant the granting of authority are met. The Department shall conduct an investigation pursuant to Section 658.20, Florida Statutes, and then in the exercise of its discretion approve or deny the application. This discretion is neither absolute nor unqualified, but is instead conditioned upon a consideration of the seven (7) criteria listed in Section 658.21, Florida Statutes. If, in the opinion of the Department, any one (1) of the seven (7) criteria has not been met and cannot be remedied by the applicant, it cannot approve the application. A more particularized statement of the Department's policy is set forth at length in Rule 3C-10.0051, Florida Administrative Code.

    
    

13. Section 658.21, Florida Statutes, provides that the Department shall approve the application if it finds that the following seven (7) criteria are met: (1) public convenience and advantage will be promoted by the establishment of the proposed bank; (2) local conditions indicate reasonable promise of successful operation for the proposed bank and those financial institutions already established in the primary service area; (3) the proposed capital structure is adequate; (4) the proposed capital structure is in such form as the department may require; (5) the proposed officers have sufficient financial institution experience, ability, standing, and reputation and the proposed directors have sufficient business experience, ability, standing, and reputation to indicate reasonable promise of successful operation; (6) the corporate name of the proposed bank is reserved with the Department of State; and (7)

    provision has been made for suitable quarters at the location specified in the application.

    
    

    FINAL ORDER

    
    

    Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered that the application referenced herein is approved subject to the following conditions:

    
    

14. The Board of Directors shall be composed of those members cited in this Order. Any changes in the composition of this Board of Directors shall be submitted to the Department for its prior approval. The addition of any new directors will require submission of biographical and financial data and should be submitted to the Department at least ninety (90) days prior to the bank's intended opening date.

15. The President (Chief Executive Officer) shall be Heberto R. C. Espinosa.

    
    

16. The name of the proposed bank shall be Pine Banking Corporation.

    
    

17. After the payment of all organization and pre-opening expenses and allowance for accounts payable and deferred expenses, the bank shall have total capital accounts of not less than $4,900,000 on opening day, of which not less than $2,500,000 shall be allocated to paid-in capital and other capital accounts of not less than $2,400,000 (allocated in accordance with Subsection 658.21(4)(a), (b) and (c), Florida Statutes), unless a reduction of these amounts has been specifically approved by the Department. All capitalized expenses must be supported by a statement from the bank's accountants of their eligibility for capitalization under generally accepted accounting principles and practices. If applicable, authorized but unissued shares shall be issued in compliance with Subsection 658.34(4), Florida Statutes.

    
    

18. No later than three (3) months from this date, Applicant shall submit to the Department the original executed Articles of Incorporation, in the form prescribed by the Department, together with the filing fee due to the Department of State under Section 607.0122, Florida Statutes.

    
    

19. The bank shall open within six (6) months after filing of the Articles of Incorporation with the Department of State. This requirement may be subject to one six-month extension upon written request to the Department, as provided by Subsection 658.25(1), Florida Statutes.

    
    

20. No later than six (6) months from commencement of corporate existence, and at least 30 days prior to the issuance of stock, Applicant shall file with the Department a complete and final list of subscribers to all of the stock, as provided in Subsection 658.235(1), Florida Statutes, together with a copy of the stock subscription agreement executed by each subscriber.

    
    

21. Any person who, together with related interests, subscribes to 10 percent or more of the stock, shall submit biographical and financial data to the Department for approval, as provided by Subsection 658.235(2), Florida Statutes. Any approved director or officer not previously approved to acquire

    10 percent or more of the stock will also have to be approved, however, new biographical and financial data will not generally be required.

    
    

22. At such time as subscriptions for stock have been fully paid and stock certificates issued, but no later that thirty (30) days prior to its intended opening date, Applicant shall file with the Department a certification that the entire capital accounts have been fully and unconditionally paid in cash and that valid assets representing such total capital accounts are held by the bank, as provided by Subsection 658.235(3), Florida Statutes.

    
    

23. An accounting of the organization expenses be provided to the subscribers and to the Department when the call for payment of stock subscriptions is made, as provided in Rule 3C-10.0041(1), Florida Administrative Code.

    
    

24. Evidence must be submitted at least thirty (30) days prior to the bank's opening confirming that the bank has obtained fidelity insurance protection which includes coverage of active officers and directors and excess employee dishonesty.

25. At least thirty (30) days prior to the intended opening date, Applicant shall notify the Department of its proposed opening date and confirm its compliance with all conditions imposed in the order or orders issued by the Department relating to Applicant.

    
    

26. A shareholder's meeting must be held after the stock has been issued, but no less than thirty (30) days prior to the intended opening date, and within ten (10) days of such meeting the minutes of such meeting must be submitted to the Department, as provided in Section 658.24, Florida Statutes.

    
    

27. Until the conditions herein specified and other reasonable requirements of the Department are met, or if any interim development is deemed by the Comptroller to warrant such action, the Comptroller shall have the right to alter, suspend, or withdraw this ORDER.

    
    

28. In taking this action, the Department has relied on the representations and commitments made by Applicant in its application. Every effort should be made to meet such representations and commitments.

    
    

29. Subsequent to the Applicant's compliance with all of the above conditions and at least thirty (30) days prior to the desired opening date, the Department shall be given notice of the proposed opening date. Upon receipt of such notice, the Department shall take the necessary steps to authorize opening of the bank.

DONE AND ORDERED this 28th day of January , 1991, in Tallahassee, Leon County, Florida.

GERALD LEWIS

Comptroller

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one (1) copy of a Notice of Appeal first with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Findings of Fact, Conclusions of Law, Final Order, and Notice of Rights has been docketed with the Clerk of the Department and served by U. S. Mail Postage Prepaid, Return Receipt Requested, to Raul J. Valdes-Fauli, Esquire, Valdes-Fauli, Cobb, Petrey & Bischoff, P.A., Suite 3400 - One Biscayne Tower, 2 South Biscayne Boulevard, Miami, Florida 33131 this 30th day of January , 1991.

Albert T. Gimbel Chief Banking Counsel

Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

(904) 488-9896

cc: CERTIFIED MAIL - RETURN RECEIPT REQUESTED (P 675 581 326)

Raul J. Valdes-Fauli, Esquire

Valdes-Fauli, Cobb, Petrey & Bischoff, P.A. Suite 3400 - One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

Federal Deposit Insurance Corporation Atlanta, Georgia

Bureau of Bank Examinations

Bureau of Research, Planning and Staff Development Miami Area Financial Manager

Clerk, Division of Banking

Docket for Case No: 90-002997

Orders for Case No: 90-002997