STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD LIAKOS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6445

)

DEPARTMENT OF BANKING AND )

FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on April 22, 1994 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Ronald R. Liakos (pro se)

788 Americana Boulevard, North East Palm Bay, Florida 32907

For Respondent: Bridget L. Ryan, Esq.

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

Tallahassee, Florida 32399-0350 STATEMENT OF THE ISSUES

Whether Petitioner is qualified to be registered as an associated person of Securities America, Inc., pursuant to the provisions of Chapter 517, Florida Statutes.

PRELIMINARY STATEMENT

This matter began when Petitioner applied to be registered as an associated person of Securities America, in accordance with the provisions of the Florida Securities and Investor Protection Act. Respondent denied the application and a formal administrative proceeding was requested by Petitioner. This hearing followed.

Respondent presented four evidentiary exhibits at hearing and one witness testified. Petitioner presented six letters of reference as evidentiary exhibits and testified in his own behalf. The transcript of the proceedings was not ordered. Proposed findings of fact submitted by Respondent are addressed in the appendix to this recommended order. Petitioner did not submit proposed findings of fact.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On March 3, 1993, the Petitioner submitted an application to the Department for registration as an associated person of Securities America, Inc.

   
   

2. Previously, on May 1, 1989, the Petitioner had filed an application with the Department for registration as an associated person of Integrated Resources Equity Corporation.

   
   

3. On July 25, 1989, the Department denied the Petitioner's application for registration as an associated person of Integrated Resources Equity Corporation.

   
   

4. Petitioner requested an informal hearing and on November 28, 1989, a hearing took place regarding the Department's intent to deny the Petitioner's application for registration with Integrated Resources Equity Corporation.

   
   

5. On January 30, 1990, a Final Order was entered by the Department denying the Petitioner's registration of Integrated Resources Equity Corporation.

6. The grounds for denial contained in the January 30, 1990 Final Order included the Petitioner's guilty plea to delivery of a controlled substance in the state of Wyoming in 1982, and the Petitioner's failure to disclose the guilty plea to the Department on the Petitioner's U-4 form (Uniform Application to Act as a Securities Dealer) on two occasions in 1987 and 1988. In addition, subsequent to the filing of his application, Petitioner was arrested on January 4, 1989 for the second degree felony of possession of cocaine to which he plead nolo contendere in the circuit court for Pinellas County, Florida on September 27, 1989. Petitioner did not amend his application and disclose this arrest and conviction.

   
   

7. The Petitioner did not file an appeal regarding the January 30, 1990 Final Order issued by the Department.

   
   

8. Additionally, on December 30, 1992, the Department again denied an application, submitted by Petitioner, for registration by issuing a Notice of Denial of Registration as an Associated Person under Chapter 517, Florida Statutes.

   
   

9. The December 30, 1992, Notice of Denial was based upon the Petitioner's failure to timely respond to the Department's request for additional information, which failure amounted to a violation of Rule 3E-301.002(3), Florida Administrative Code. The denial was issued without prejudice to Respondent's right to reapply upon the submission of a new application and payment of the fee.

   
   

10. The Petitioner did not file a petition for hearing in response to the Department's Notice of Denial of Registration dated December 30, 1992.

    
    

11. In 1982, Petitioner was arrested for delivery of a controlled substance in the state of Wyoming. Petitioner plead guilty to this charge, adjudication of guilt was withheld and Petitioner was placed on probation by the court. That probation was terminated by court order.

    
    

12. In 1989, Petitioner was arrested for possession of a controlled substance in Pinellas County, Florida. Petitioner plead nolo contendere to this charge, adjudication of guilt was withheld and Petitioner was placed on probation by the court. The record is unclear whether probation has been terminated by the court.

    
    

13. At present, Petitioner is married. He and his wife have three children. In 1990, he and his family moved to Brevard County, Florida where he has been self-employed as a life and health insurance salesman for several companies. He has not been the subject of disciplinary action in this field.

    
    

14. Petitioner denied he had ever sold cocaine; instead he insisted that his role was limited solely to that of being a delivery boy for other drug salespersons. He stated he has undertaken no specific drug rehabilitation program other than to discontinue involvement with controlled substances. In addition to his own testimony acknowledging and explaining his criminal record, he presented testimony regarding his character. Letters from character witnesses consisted of Petitioner's wife, mother, pastor and three other individuals. The pastor and other individuals wrote that they had known Petitioner only since 1991, or some point in time since the occurrence of his last criminal offense in 1989. Each of the individuals was impressed with Petitioner and believed him to be of good character, and indicated some knowledge, absent specific details, of his criminal background.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 517.161(1)(m) provides as follows:

    
    

    1. Registration under 517.12 may be denied or any registration granted may be revoked, restricted, or suspended by the department if the department determines that such applicant or registrant:

       . . .

       (j) Has been convicted of or has entered a plea of guilty of nolo contendere to a crime against the laws of this state or any other state . . . which involves moral

       turpitude or fraudulent or dishonest dealing;

       (m) Has been the subject of any decision finding, injunction, suspension, prohibition,

       revocation, denial, judgement, or administrative order by any court of competent jurisdiction, administrative law judge, or by any sate or federal agency, national securities, commodities, or options

       exchange, or national securities, commodities, or option association, involving a violation of any federal or state securities or commodities law or any rule or regulation promulgated thereunder, or any injunction or adverse administrative order by a state or federal agency regulating banking, insurance, finance or small loan companies, real estate, mortgage brokers, or other related or similar industries. For purposes of this subsection, the department may not deny registration to any applicant who has been continuously registered with the department for 5 years from the entry of such decision, finding, injunction, suspension, prohibition, revocation, denial, judgement, or administrative order provided such decision, finding, injunction, suspension, prohibition, revocation, denial judgment, or

       administrative order has been timely reported to the department pursuant to the department's rules and regulations.

       
       

17. The Petitioner has been the subject of two previous denials entered by the Department involving violations of Chapter 517, Florida Statutes and the rules promulgated pursuant to Chapter 517, Florida Statutes.

    
    

18. The Department may deny an application for registration if the applicant has been convicted or found guilty of a crime involving moral turpitude. Moral turpitude has been defined as anything done contrary to justice, honesty, principle or good morals. It involves the idea of inherent baseness or depravity in the private social relations or duties owned by man to man, or by man to society. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933).

    
    

19. In view of the foregoing definition, the delivery of a controlled substance and possession of cocaine are offenses involving moral turpitude.

20. Petitioner bears the burden of proof with regard to establishment of his rehabilitation and qualifications for registration. Although there has been a period of four years time that has elapsed since Petitioner's last criminal offense, Petitioner offered only his own testimony in support of his entitlement to registration. There was a distinct lack of evidence offered to corroborate Petitioner's claim of rehabilitation. In addition, his initial arrest was on very serious drug charges. Further, Petitioner's explanation of his conduct in 1989 at the time of his second arrest was not credible. The evidence presented at hearing is insufficient to show that Petitioner is presently of good moral character.

    
    

21. Petitioner has failed to meet his burden to show his entitlement to registration as a associated person.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered denying Petitioner's application for registration as an associated person, submitted on March 3, 1993.

DONE and ENTERED this 27th day of May, 1994, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 27th day of May, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Petitioner did not submit proposed findings.

Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1-10.

COPIES FURNISHED:

Bridget L. Ryan, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Ronald Liakos

788 Americana Boulevard, N.E. Palm Bay, Florida 32907

Honorable Gerald Lewis Comptroller

Department of Banking & Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350

William G. Reeves General Counsel

Department of Banking & Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency

that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DIVISION OF SECURITIES AND INVESTOR PROTECTION

RONALD LIAKOS,

Petitioner, Administrative Proceeding No. 1922a-S-8/93

vs. DOAH Case No. 93-6445

DEPARTMENT OF BANKING AND FINANCE,

Respondent.

/

FINAL ORDER

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 the above-referenced proceeding. On May 27, 1994, a Hearing Officer from the Division of Administrative Hearings submitted his Recommended Order, a copy of which is attached hereto as Exhibit "A". None of the parties have filed exceptions to the Recommended Order.

Upon review and consideration of the Recommended Order and the complete record of this proceeding, it is accordingly ORDERED:

1. The Hearing Officer's Findings of Fact are hereby adopted and incorporated herein as the Findings of Fact of this Final Order;

   
   

2. The Hearing Officer's Conclusions of Law are hereby adopted and incorporated herein as the Conclusions of Law of this Final Order, EXCEPT:

   
   

   1. As to paragraph (19), which states:

      
      

      19. In view of the foregoing definition, the delivery of a controlled substance and possession of cocaine are offenses involving moral turpitude.

      
      

   2. It is well-established that delivery or sale of a controlled substance (e.g., opium, morphine, or "drugs for non- medical use") is a crime of "moral turpitude"; however, "mere possession of a controlled substance is not such) a crime." Pearl v. Florida Board of Realtors, 394 So. 2d 189, 192 (Fla. 3d DCA 1981) (citations omitted).

      
      

   3. An agency may, in its final order, "reject or modify the conclusions of law and interpretation of administrative rules in the recommended order." Sec. 120.57(1)(b)10, Florida Statutes (1993); University Community Hospital v. Department of Health and Rehabilitative Services, 610 So. 2d 1342, 1346-47 (Fla. 1st DCA 1992).

      
      

   4. THEREFORE, the Department MODIFIES the Hearing Officer's Conclusion of Law as stated in paragraph (19) of the Recommended Order as follows:

   
   

   19. In view of the foregoing definition, the delivery of a controlled substance is an offense involving moral turpitude

   
   

   and,

   
   

3. Petitioner's, Ronald Liakos, application for

registration as an associated person of Securities America, Inc., is hereby DENIED.

DONE and ORDERED this 15th of June, 1994, 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 to:

Daniel M. Kilbride Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Don B. Saxon, Director, Division of Securities and Investor Protection

Bridget L. Ryan

Assistant General Counsel

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 COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL MUST BE FILED WITHIN 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 Final Order and Notice of Rights has been furnished by regular U.S. mail to Ronald R. Liakos, 788 Americana Boulevard, N.E., Palm Bay, Florida 32907, this 15th day of June, 1994.

J. STRATIS PRIDGEON Certified Legal Intern

H. RICHARD BISBEE Deputy General Counsel

Prepared by: J. Stratis Pridgeon

Certified Legal Intern

Docket for Case No: 93-006445

Orders for Case No: 93-006445