STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF FINANCE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-008

)

MARTIN E. KULOK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in Room 210, Crane Building, 1515

1. Seventh Street, Miami, Florida, at 11:00 a.m. on March 26, 1976, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   This case arose upon the Notice to Show Cause and Administrative Complaint filed by the Division of Finance on Mr. Martin E. Kulok denying his application for licensure as a mortgage broker solicitor and alleging that Mr. Martin E. Kulok had sold a mortgage while unlicensed and therefore had demonstrated deficiencies in qualities of experience, integrity, and competency essential to licensure as a mortgage solicitor. Mr. Martin E. Kulok petitioned for a formal hearing and this cause was referred to the Division of Administrative Hearings to conduct the formal hearing by the Division of Finance.

   
   

   APPEARANCES

   
   

   For Petitioner: James M. Barclay

   Assistant General Counsel Office of the Comptroller Legal Annex

   Tallahassee, Florida 32304

   
   

   For Respondent: Martin E. Kulok, appeared

   for and represented himself

   150 Southeast 25th Road, No. 14F Miami, Florida 33129

   
   

   FINDINGS OF FACT AND CONCLUSIONS OF LAW

   
   

   1. The facts in this case are clear and uncontroverted. On or about February 5, 1975, Martin E. Kulok terminated his employment as a mortgage solicitor with ABC Investment Corporation. ABC Investment Corporation wrote and advised the Division of Finance on February 10, 1975, that Kulok had left his employ. On February 5, 1975, Kulok applied for licensure as a mortgage solicitor with Financial Resources Corporation On February 12, 1975, the Division of Finance cancelled Kulok's registration as a mortgage solicitor with ABC. On February 20, 1975, the Division of Finance issued Kulok's license as a

      mortgage solicitor with Financial Resources Corporation. On February 13, 1975, while unlicensed, Kulok sold what purports to be a first mortgage to Lincoln H. Evans in behalf of Financial Resources Corporation. Kulok has applied for licensure as a mortgage solicitor with Joseph Maddlone, and said application is at issue because the Division of Finance asserts that Kulok's sale to Evans while he was unlicensed between February 12 and February 20 "demonstrates deficiencies in qualities of experience, integrity, and competency" which are essential to the issuance of a mortgage solicitor's license.

      
      

   2. It is clear that in issuing licenses, the Division of Finance issues licenses to the broker, in this case Financial Resources, and that nothing is forwarded to the mortgage solicitor. Kulok was physically located in Miami, Florida and his broker's office was located in Fort Lauderdale, Florida. Kulok stated that he called his broker frequently to determine what the status of his license was. On February 13, 1975, some eight days after completing his application, his broker advised him that he could go out and sell. On February 13, 1975, Kulok's application was received by the Division of Finance.

      
      

   3. The apparent basis for requiring issuance of licenses to brokers and requiring brokers to delicense solicitors is that they are more responsible than solicitors. See Subsection 498.04(9)(10), F.S. It appears that in the instant case Financial Resources Corporation was not as responsible as many people, including Mr. Kulok and the Division, thought it was.

      
      

   4. Fortunately, the issue presented here is not Mr. Kulok's status when his application for licensure had been received but had not been granted by the Division. Under the procedures adopted by the Division of Finance the solicitor is dependent upon the good faith representations of his broker, to whom the Division also looks for control. By inquiring of and being told by his broker that he was able to sell, Kulok did what he could do to determine his status. Certainly he could have done more, but he had no basis to mistrust his broker. Under the facts presented here, there is no evidence that Kulok lacks the "experience, integrity, and competency" to be licensed as a mortgage solicitor, and that is the issue.

RECOMMENDATION

Based upon the foregoing conclusions of law and findings of fact, the Hearing Officer recommends that Kulok's license be granted.

DONE and ORDERED this 6th day of April, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James M. Barclay, Esquire Assistant General Counsel Office of the Comptroller The Capitol

Tallahassee, Florida 32304

Martin B. Kulok

150 S.E. 25th Road, No. 14F Miami, Florida 33129

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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF FINANCE,

Petitioner,

vs. CASE NO. 76-008

MARTIN E. KULOK,

Respondent.

/

FINAL ORDER

A public hearing was held, pursuant to notice, in Room 210, Crane Building, 1515 N. W. Seventh Street, Miami, Florida, at 11:00 a.m. on March 26, 1976, before Stephen F. Dean, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James M. Barclay

Assistant General Counsel Office of the Comptroller Legal Annex

Tallahassee, Florida 32304

For Respondent: Martin E. Kulok,

appeared for and represented himself

150 Southeast 25th Road, No. 14F Miami, Florida 33129

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The facts in this case are clear and uncontroverted. On or about February 5, 1975, Martin E. Kulok terminated his employment as a mortgage solicitor with ABC Investment Corporation. Accordingly, ABC Investment Corporation wrote and advised the Division of Finance on February 10, 1975, that Kulok had left its employment and on that date it returned Kulok's mortgage solicitor's license to the Division for cancellation. On February 13, 1975, Kulok's application for licensure as a mortgage solicitor with Financial Resources Corporation was received by the Division. In the meantime, on February 12, 1975, the Division cancelled Kulok's registration as a mortgage solicitor with ABC. On February 20, 1975, the Division issued Kulok's license as a mortgage solicitor with Financial Resources Corporation. Thus, from February 12, 1975, until February 20, 1975, Kulok was not licensed as a mortgage solicitor in the State of Florida. Regardless, on February 13, 1975, while so unlicensed, Kulok sold a first mortgage to Lincoln H. Evans on behalf of Financial Resources Corporation. Kulok's application for licensure as a mortgage solicitor with Joseph Maddlone is at issue because the sale to Evans while Kulok was unlicensed between February 12 and February 20, 1975, violated Chapter 494, F.S., the Mortgage Brokerage Act.

   
   

2. Subsection (1) of Section 494.04, F.S., provides that, "No person shall act as a mortgage broker or mortgage solicitor in, out, of or from offices in this state without a license as provided by the Mortgage Brokerage Act. The negotiation of a mortgage instrument by Kulok to Evans on or about February 13, 1975, was a violation of Section 494.04(1), F.S., because Kulok acted as a mortgage solicitor without being so licensed.

   
   

3. Kulok sought to escape the consequences of such unauthorized sale by claiming that he inquired of and was told by his broker that he was able to sell. The examiner correctly noted that "certainly he could have done" but Kulok's contention that he had no basis to mistrust his broker was misplaced.

   
   

4. Under the facts, Kulok violated subsection (1) of Section 494.04, F.S., as alleged. The Department, having reviewed the complete record herein and upon the foregoing conclusions of law and findings of fact, denies the application for licensure as a mortgage solicitor of Martin E. Kulok with Joseph Maddlone or any licensed mortgage solicitor in the State of Florida, until August 12, 1976 after which date Kulok may file such applications as he deems fit, without prejudice.

DONE AND ORDERED at the Capitol, Tallahassee, Leon County, Florida, this 29th day of April, 1976.

GERALD A. LEWIS

Comptroller of Florida The Capitol

Tallahassee, Florida 32304

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Final Order was sent by regular U.S. Mail to James M. Barclay, Assistant General Counsel, Office of the

Comptroller, Legal Annex, Tallahassee, Florida 32304 and Martin E. Kulok, 150

S. E. 25th Road, No. 14F, Miami, Florida 33129, this day of April, 1976.

Docket for Case No: 76-000008

Orders for Case No: 76-000008