STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CLIFF J. GUERRIERI, )
)
Petitioner, )
)
vs. ) CASE NO. 91-4440
)
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 formal hearing in the above- styled case on October 10, 1991, at Tampa, Florida.
APPEARANCES
For Petitioner: Cliff J. Guerrieri, pro se
4201 North "A" Street Apartment 14
Tampa, Florida 33609
For Respondent: J. Ashley Peacock, Esquire
Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350
STATEMENT OF THE ISSUES
Whether Petitioner is qualified for registration as an associated person.
PRELIMINARY STATEMENT
By letter dated June 11, 1991, the Department of Banking and Finance, Respondent, denied the application of Cliff J. Guerrieri, Petitioner, for registration as an associated person. As grounds for denial, the letter alleges that Petitioner failed to disclose various criminal convictions on his application; and this failure to disclose and the convictions themselves both constitute grounds for denial of registration. Petitioner requested a formal hearing to challenge this denial, and these proceedings followed.
At the hearing, Petitioner testified in his own behalf, Respondent called one witness and eight exhibits were admitted into evidence. Proposed findings have been submitted by Respondent. Those proposed findings are generally accepted. Those proposed findings not included herein were deemed unnecessary to the conclusions reached. After fully considering all evidence presented, I submit the following:
FINDINGS OF FACT
On December 6, 1990, Cliff J. Guerrieri submitted a Uniform Application for Securities Industry Registration (Form U4) to the National Association of Securities Dealers (NASD) for registration as a securities dealer in Florida. A copy of this form was forwarded to the Department of Banking and Finance by NASD.
On this Form U4, Petitioner answered "No" to Question 22A relating to having been convicted of or plead guilty of nolo contendere to:
a felony or misdemeanor involving: fraud, false statements, or omissions, wrongful taking of property, or bribery, forgery, counterfeiting or extortion?
gambling?
any other felony?
A check by NASD revealed that Petitioner had pleaded nolo contendere to two charges of petit theft in the County Court, Pinellas County, Criminal Division, on March 10, 1986 (Exhibits 3 and 4); pleaded nolo contendere to exposure of sexual organs in the County Court, Hillsborough County, Criminal Division, on September 7, 1989 (Exhibits 5 and 6).
Petitioner's employer was notified of these omissions, and on March 7, 1991, Petitioner submitted an Amended Form U4 on which he again checked "No" to Item 22A, but checked "Yes" to Item 22B, which asks if he had ever been charged with any felony or misdemeanor specified in Questions A(1) or (2).
Additionally, Petitioner submitted court records admitted here as Exhibits 3, 4,
5 and 6.
Although Petitioner testified that he sent Exhibits 3, 4, 5 and 6 with his amended U4, Respondent acknowledged receipt of Exhibits 3, 4, 5 and 6, but denied receiving a copy of the amended U4 dated March 7, 1991.
Petitioner testified that the petit theft charges involved license plates in or on his brother's car, which Petitioner was driving when he was stopped and charged with these violations. No further explanation was provided from which the degree of Petitioner's culpability could be ascertained.
With respect to the exposure charge, Petitioner stated that he was changing clothes in an open convertible when he was apprehended. Again, no further explanation was provided from which Petitioner's culpability could be ascertained.
With respect to the failure to note his criminal conviction on his initial application, Petitioner testified that his initial reading of Item 22 on the U4 led him to conclude erroneously that all of Items 22A through N involved securities violations and since he had never committed such a violation, his sworn answers to Item 22 was correct.
Respondent's sole witness testified that Petitioner's application would have been denied even if he had initially submitted a correct application based solely on his convictions. The convictions plus the failure to disclose constituted the given reason for denial of Petitioner's application.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 517.161(1), Florida Statutes, provides in pertinent part that registration [as an associated person] may be denied if the Department determines that the applicant:
(b) Has made material false statements in the application for registration;
(j) Has been convicted of, or has entered a plea of guilty or nolo contendere to, a crime against the laws of this state or any other state or if the United States . . . which involves moral turpitude or fraudulent or dishonest dealing.
By failure to truthfully answer Question 22A on his original U4, Petitioner violated Section 517.161(1)(b), above quoted, and this constitutes grounds for denying the application as it indicates dishonesty on the part of the applicant, and honesty is a primary requisite for registration as an associated person. Petitioner's explanation of his failure to disclose a criminal conviction is rational; however, on an application of this nature it is essential that the applicant carefully read the questions and answer them properly.
With respect to the offenses of which Petitioner has pleaded nolo contendere, the charges of petit theft involve dishonesty; although, had Petitioner fully described the incident leading to his arrest in this charge it could had been found that this offense was lacking in moral turpitude. No evidence was submitted from which it could be found that moral turpitude was not involved.
Similarly, with the offense of exposure of sexual organs. Normally this is considered to be an offense involving moral turpitude. A more complete description of the circumstances surrounding this incident could result in a conclusion that moral turpitude was not involved. Again no evidence was submitted from which a determination could be made that this offense did not involve moral turpitude.
Absent evidence describing the circumstances surrounding Petitioner's arrests and convictions on the charges of petit theft and indecent exposure, it cannot be determined that moral turpitude was not involved.
All petit thefts do not involve moral turpitude and, therefore, do not constitute automatic grounds for disqualification from registration.
If, in fact, these disqualifying incidents do not involve moral turpitude, there should be no proscription to Petitioner reapplying for registration as an associated person, submitting an accurate and complete Form U4 and presenting evidence of the true nature of these offenses. Since such evidence was not submitted at this hearing, Petitioner has failed to demonstrate his qualifications for registration.
Accordingly, it is recommended that the application of Cliff J. Guerrieri for registration as an associated person be denied.
RECOMMENDED this 19th day of November, 1991, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1991.
COPIES FURNISHED:
Cliff J. Guerrieri 4201 North "A" Street Apartment 14
Tampa, FL 33609
Honorable Gerald Lewis Comptroller
Department of Banking and Finance
Suite 1302, The Capitol Tallahassee, FL 32399-0350
Ashley Peacock, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, FL 32399-0350
William G. Reeves General Counsel Department of Banking
and Finance
Suite 1302, The Capitol Tallahassee, FL 32399-0350
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
DIVISION OF SECURITIES AND INVESTOR PROTECTION
CLIFF J. GUERRIE,
Petitioner, DOAH Case No. 91-4440 Administrative Proceeding
vs. No. 1482-5-4/91
DEPARTMENT OF BANKING AND FINANCE,
Respondent.
/
FINAL ORDER AND NOTICE OF RIGHTS
This matter has come before the undersigned as head of the Department of Banking and Finance, Division of Securities and Investor Protection, ("Department,) , for the entry of a Final Order in this proceeding. On November 19, 1991, a hearing officer from the Division of Administrative Hearings submitted his Recommended Order in this proceeding, a copy of which is attached hereto as Exhibit "A". On or about Septem- ber 27, 1991, the Petitioner, Cliff J. Guerrieri (the "Peti- tioner") , filed his Exceptions to Recommended Order, a copy of which is attached hereto as Exhibit "B".
This matter arose when the Department, by letter dated June 11, 1991, advised the Petitioner that his application for registration as an associated person with Chatfield Dean & Company, Inc., in Florida was being denied on grounds more particularly stated in this letter.
The Department timely received the Petitioner's Petition for Formal Proceeding. By letter dated July 16, 1991, the matter was transferred to the Division of Administrative Hearings ("DOAH") for the assignment of a hearing officer to conduct a formal administrative hearing. Thereafter, the parties responded to the Initial Order entered by DOAH on July 24, and July 30, 1991. By Notice of Hearing dated August 5, 1991, Hearing Officer K.N. Ayers set the case for hearing in Tampa on October 10, 1991. On October 10, 1991, the formal hearing was held in this matter in Tampa before hearing officer K.N. Ayers.
The Hearing Officer's November 19, 1991, Order recom- mends that the Department issue a Final Order denying the Petitioner's Application for Registration as an associated person of Chatfield Dean & Company, Inc., in Florida.
RULINGS ON EXCEPTIONS BY PETITIONER
First Exception: The Petitioner takes exception to the Recommended Order's Findings of Fact Paragraph 5 wherein the Hearing Officer concluded that, "Respondent . . . denied receiving a copy of the Amended U4 dated March 7, 1991.
In Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla.
1st DCA 1985) , the district court of appeal explained the respective roles of hearing officers and state agencies in deciding factual issues as follows:
Factual issues susceptible of ordinary methods of proof that are not infused with policy considera- tions are the prerogative of the hearing officer as the finder of fact. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). It is the hearing officer's function to consider all the evidence presented, resolve con- flicts, judge credibility of witnesses, draw per- missible inferences from the evidence, and reach ultimate findings of fact based on competent, sub- stantial evidence. State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3d DCA 1959). If,
as is often the case, the evidence presented supports two inconsistent findings, it is the hear- ing officer's role to decide the issue one way or the other. The agency may not reject the hearing officer's finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authori- zed to weigh the evidence presented, judge credibi- lity of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.
The Department concurs with the Hearing Officer's Finding of Fact since it was based on competent substantial evidence. See Heifetz, supra.
Furthermore, the Petitioner asserts that the Department received the amended page 3 before the denial letter was mailed. Whether the Department did or did not receive the amended page 3, (and the testimony is not conclusive) the Hearing Officer apparently weighed this evidence in reaching his finding.
See Heifetz, supra. Therefore, Petitioner's first exception is rejected.
Second Exception: The Petitioner takes exception to the Hearing Officer's Finding of Fact, Paragraph 6, which states that no "further explanation was provided from which the degree of Petitioner's culpability could be ascertained." The Petitioner argues that since then he was appearing pro se, evidence was overlooked or further explanation should have been asked, and, as a result, the Petitioner did not have a fair hearing.
However, the Petitioner has the burden of proof in a licensing denial action to show why he should be granted registration as an associated person. Rule 3E-301.002(4), Florida Administrative Code. Hence, it is up to the Peti- tioner, and not the Respondent, to explain a given fact or exhibit.
Also, the Department may not overrule a Hearing Offi- cer's finding of fact when it was supported by competent, substantial evidence. See Heifetz, supra.
As a result, the Department concurs with the Hearing Officer's Finding of Fact since it was based on competent, substantial evidence. Therefore, the Petitioner's second exception is rejected.
Third Exception: The Petitioner takes exception to the Hearing Officer's Finding of Fact, Paragraph 7, which states that "no further explanation was provided from which Petitioner's culpability could be ascertained."
As stated previously, it is the hearing officer's, not the agency's or the Petitioner's, function to evaluate the evidence in reaching ultimate findings of fact. See Heifetz, supra. Since there is competent, substantial evidence with which the Hearing Officer reached his Finding of Fact, the Department concurs with it and the Petitioner's third exception is rejected.
Fourth Exception: The Petitioner appears to take exception to paragraph 9 of the Hearing Officer's Findings of Fact. However, the exceptions concerning the "unusual recess" and "the leading question" are ambiguous as to paragraph 9. Nevertheless, these exceptions should have been objected to at the hearing. Since there was no objection in the record, the Department concurs with the Hearing Officer and the Petitioner's fourth exception is rejected.
Fifth Exception: The Petitioner takes exception to the Hearing Officer's Conclusion, "by the Petitioner's failure to answer truthfully Question 22A on his original U4, he violat- ed Section 517.161(1) (b) and this constitutes grounds for denying the application as it indicates dishonesty. The Petitioner argues there was no material false statement since the Petitioner amended his U4 form.
In the instant case, the Petitioner was afforded an opportunity to present such evidence at the hearing concerning the material false statement, which the Hearing Officer weighed in reaching his conclusions. As stated above, Heifetz provides that it is the hearing officer's function to evaluate the evidence in reaching ultimate findings of fact based upon the evidence presented, if such evidence is substantial and competent. The Hearing Officer observed the credibility and demeanor of the Petitioner when he testified at the hearing, as well as that of the other witnesses. Therefore,
the Department rejects the Petitioner's fifth exception. See Heifetz, supra.
Sixth Exception: The Petitioner takes exception to the Hearing Officer's conclusion that petit theft involves dishonesty and that the Petitioner did not submit evidence which would lead to the conclusion that it was not moral turpitude. As stated previously, the Hearing Officer weighed the evidence and made these conclusions based upon competent substantial evidence. See Heifetz, supra. For this reason the Department concurs with the Hearing Officer's conclusion and rejects the Petitioner's sixth exception.
Seventh Exception: The Petitioner takes exception to the Hearing Officer's conclusion that the offense of sexual exposure is normally considered to be an offense involving moral turpitude. The Petitioner presumes that the Hearing Officer's conclusion was based upon a case cited by the Department in its Proposed Recommended Order; however, the Hearing Officer did not cite any authority upon which he based this conclusion. Therefore, it must be assumed that he based this conclusion upon the competent, substantial evidence entered at the formal hearing.
In addition, the Petitioner's reliance upon Ricketts v. State, 436 A.2d 906 (Md. 1981) , in this excep- tion, is incorrect. This case distinguishes Brun v. Lazzell, 196 A.240 (Md. 1937) which was cited by the Department, but it does not refute or overturn it. Ricketts, held that for purposes of impeachment the crime of indecent exposure is not a crime involving moral turpitude. The basis for this holding is that for impeachment purposes, indecent exposure, as a crime of moral turpitude, would be too prejudicial for its entry into the hearing. In the instant case, the Peti- tioner's offense of indecent exposure is introduced as a basis for denial and not for impeachment purposes.
Therefore, the Petitioner's reliance upon Ricketts is without merit.
Based upon the foregoing, the Department concurs with the Hearing Officer's Recommended Order and the Petitioner's seventh exception is rejected.
Eighth Exception: The Petitioner takes exception to the proceedings to date as an alleged denial of the Petitioner's rights to due process of law.
The Petitioner bases this exception on the foregoing exceptions and that he was not given enough time to enter his proposed recommended order. This exception is also without merit. First, it is the Petitioner's (and not the Departments') responsibility to obtain or order his copy of the transcript.
Second, the date on which the Petitioner receives the Department's Proposed Recommended Order is irrelevant, in so far as it is the date on which the Hearing Officer receives his copy. Third, while Rule 3-7.003, Florida Administrative Code, does provide five full days for mailing, this rule is inapplicable here. This Rule is only applicable, "(w)hen a person has the right or is required to do some act or take some act or take some pro- ceeding within a prescribed period . . ." with the Depart- ment. The Petitioner does not have a right or a requirement to file the proposed recommended order with the Department but with the Division of Administrative Hearings and so rule 3-7.003, Florida Administrative Code, is inapplicable.
While the Petitioner incorrectly argues that Rule 3-7.003, Florida Administrative Code, grants him 5 days for mailing, Rule 221-6.002, Florida Administrative Code, which the Petitioner failed to cite as a basis for this exception, does allow these 5 days for mailing to DOAH. However, the Petitioner likewise failed to file his Motion for Future Hearing, or Rehearing or for Extension of Time to Argue and to File Proposed Order, Findings of Fact and Conclusions of Law ("Motion") timely under this rule. The parties were given ten (10) days in which to file proposed recommended orders from the date the transcript was filed with DOAH. (T.p.79). The transcript was filed with DOAH on November 5, 1991, as indicated by the date stamp thereon. The Hearing Officer filed his Recommended Order on November 19, 1991, which was fourteen (14) days after the transcript was filed at DOAH. The Petitioner states that he mailed, via overnight mail, his Motion on November 20, 1991, which means that it would have been received by DOAH on November 21, 1991, or sixteen (16) days after the transcript was filed at DOAH. As a result, even taking into consideration Rule 221-6.002, Florida Administrative Code, which the Petitioner did not rely upon, the Motion was filed after the 10 days allowed by the Hearing Officer plus the 5 days allowed for mailing.
Finally, the Hearing Officer stated that a party's failure to file a proposed recommended order would not be viewed a penalty, since he would not modify his findings of fact based upon a proposed recommended order, unless there was evidence presented at the hearing to substantiate the findings of fact contained in the proposed recommended order. (T.p.78). As a result, the Petitioner was not penal- ized by the Hearing Officer for his failure to file a proposed recommended order.
For the foregoing reasons, and the reasons set forth in the Hearing Officer's Recommended Order, the Department concurs with the Hearing Officer's Conclusion and the Petitioner's eighth exception is rejected.
FINAL ORDER
Having ruled on the exceptions filed by the Petitioner to the Recommended Order, it is hereby ordered:
Except to the extent such are modified hereafter, the Hearing Officer's Findings of Fact and Conclusions of Law in the Recommended Order, attached hereto, are hereby adopted and incorporated by reference herein as the Findings of Fact and Conclusions of Law of this Final Order.
The Hearing Officer proposed the following recommended Conclusion of
Law:
All petit thefts do not involve moral turpitude and, therefore, do not constitute automatic grounds for disqualification from registration.
This recommended Conclusion of Law is hereby rejected as being unnecessary and gratuitous as to the issues herein and Findings of Fact previously made.
The Hearing Officer proposed the following recommended Conclusion of
Law:
If, in fact, these disqualifying incidents do not involve moral turpitude, there should
be no proscription to Petitioner reapplying for registration as an associated person, submitting an accurate and complete Form U4 and presenting evidence of the true nature of these offenses.
This recommended Conclusion of Law is hereby rejected. The Hearing Officer has made his findings of fact as to the nature of these offenses and their application under the existing laws, based upon the substantial and competent evidence presented at the hearing. To allow the Petitioner the opportunity to relitigate these same issues, as is evidently suggested in the foregoing recommended Conclusion of Law, would violate the principle of res judicata. To this extent, the above Recommended Conclusion of Law is rejected.
Petitioner's application for registration as an associated person with Chatfield Dean & Company, Inc., is hereby DENIED.
DONE and ORDERED this 2 day of January, 1992, in Tallahassee, Leon County, Florida.
GERALD LEWIS as Comptroller of the State of Florida and Head of the Department of Banking and Finance
Copies Furnished:
K.N. Ayers, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Don B. Saxon, Director
Division of Securities and Investor Protection Office of the Comptroller
The Capitol
Tallahassee, FL 32399-0350
Anthony F. DiMarco Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32399-0350
J. Ashley Peacock Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302
Tallahassee, FL 32399-0350
NOTICE OF RIGHTS
Applicants are advised that within thirty (30) days of the date of this Final Order an Applicant may seek judicial review of the same by filing a Notice of Appeal with the Clerk of the Department of Banking and Finance, Room 1302, The Capitol, Tallahassee, Florida 32399-0350 and by filing a second copy of such Notice of Appeal together with the proper filing fee with the Clerk of the District Court of Appeal, First District, Martin Luther King Jr. Boulevard at Pensacola and West Jefferson Streets, Tallahassee, Florida 32301 or with the District Court of Appeal wherein Applicants reside.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was mailed by U.S. Mail to Raymond E. LaPorte, Attorney for Pettioner, P.O. Box 955, Tampa, Florida 33601-0955, this 2 day of January, 1992.
ANTHOMY F. DEMARCO
Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32399-0350
(904) 488-9896
Florida Bar # 0827789
| Issue Date | Proceedings |
|---|---|
| Jan. 03, 1992 | Final Order and Notice of Rights filed. |
| Dec. 02, 1991 | Petitioner`s Exceptions to Recommended Order w/Motion for Further Hearing, or Re-Hearing or for Extension of time to Argue and to File Proposed Order, Findings of Fact and Conclusion of Law filed. |
| Nov. 27, 1991 | Order Denying Motion for Further Hearing or Re-hearing or for Extension of Time to Argue and to File Proposed Order, Findings of Fact and Conclusions of Law and Granting Extension of Time to File Exceptions to Recommended Order; Order Denying Motion for |
| Nov. 21, 1991 | (Petitioner) Motion for Further Hearing, or Re-Hearing or for Extension of Time to Argue and to File Proposed Order, Findings of Fact and Conclusion of Law; Motion for Extension of Time filed. |
| Nov. 19, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 10/10/91. |
| Nov. 15, 1991 | Respondent`s Proposed Recommended Order filed. |
| Nov. 07, 1991 | Letter to KNA from J. Ashley Peacock (re: submitting PRO) filed. |
| Nov. 05, 1991 | Transcript filed. |
| Oct. 07, 1991 | CC Letter to Cliff J. Guerrieri from J. Ashley Peacock (re: Change in hearing time) filed. |
| Oct. 04, 1991 | Amended Notice of Hearing (As to Time Only) sent out. (hearing set for 10/10/91; 9:00am; Tampa) |
| Oct. 02, 1991 | Respondent`s Responses to Petitioner`s First Request for Admissions filed. |
| Sep. 27, 1991 | Second Notice of Taking Deposition filed. (From J. Ashley Peacock) |
| Sep. 26, 1991 | cc: (Respondent) Notice of Taking Deposition w/Cover Letter from J. Peacock filed. |
| Sep. 17, 1991 | cc: (Respondent) Notice of Taking Deposition w/Cover Letter from J. Peacock filed. |
| Sep. 12, 1991 | Notice of Appearance filed. (From J. Ashley Peacock) |
| Sep. 03, 1991 | (Petitioner) In Response to Request for Production; Request for Production filed. |
| Sep. 03, 1991 | Notice of Service of Respondent Florida Department of Banking and Finance`s Interrogatories to Petitioner, Clifford J. Guerrieri; Respondent`s First Set of Interrogatories to Petitioner Cliff J. Guerrieri filed. |
| Sep. 03, 1991 | (Petitioner) In Response to First Requests for Admission; First Requests for Admission filed. |
| Aug. 30, 1991 | Petitioners First Request for Official Recognition. filed. |
| Aug. 16, 1991 | (Respondent) First Request for Admissions w/Exhibit-1; Request for Production; Notice of Service of Respondent Florida Department of Banking and Finance`s Interrogatories to Petitioner, Cliff J. Guerrieri; Respondent`s First Set of Interrogatories to Peti |
| Aug. 15, 1991 | Respondent`s First Request for Official Recognition & attachments filed. (From R. Beth Atchison) |
| Aug. 05, 1991 | Notice of Hearing sent out. (hearing set for Oct. 10, 1991; 1:00pm; Tampa). |
| Aug. 01, 1991 | Ltr. to KNA from Cliff J. Guerrieri re: Reply to Initial Order filed. |
| Jul. 29, 1991 | (ltr form) Response to Initial Order filed. (From R. Beth Atchison) |
| Jul. 22, 1991 | Initial Order issued. |
| Jul. 16, 1991 | Agency referral letter; Request for Administrative Hearing; Denial of Registration filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 02, 1992 | Agency Final Order | |
| Nov. 19, 1991 | Recommended Order | Failure to disclose criminal convictions on application for licensure constitutes grounds for denying application. Evidence insufficient to determine moral turpitude |
