STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BANKING AND ) FINANCE, DIVISION OF FINANCE, )
)
Petitioner, )
)
vs. ) CASE NO. 78-1321
)
MARTIN K. ALPERT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, commencing on December 5, 1978, and continuing on February 6, 1979, and April 11, 1979, in Tampa, Florida. The issue for determination at the hearing was whether the mortgage broker license of respondent Martin K. Alport should be suspended, revoked or otherwise disciplined, for the reasons set forth in the administrative complaint, as amended.
APPEARANCES
For Petitioner: Michael A. Gross
Assistant General Counsel Office of the Comptroller The Capitol
Tallahassee, Florida 32301
For Respondent: John W. Hakas and
John W. McWhirter, Jr. Post Office Box 2150 Tampa, Florida 33601
INTRODUCTION
By an administrative complaint filed in late June of 1978, as amended in February, 1979, the Division of Finance charged the respondent Alport with various violations of Chapter 494, Florida Statutes, and the rules and regulations enacted pursuant thereto -- Chapter 3D-40 of the Florida Administrative Code. In general, respondent was charged with:
failing to keep records sufficient to enable the Department to determine whether certain investors received funds due them;
failing to keep records sufficient to reflect the manner in which investors advanced funds for certain loan transactions;
failing to place certain mortgage payments received by him in an escrow account;
failing to place certain funds advanced to him for investment in mortgage loans in an escrow account;
charging and accepting fees on commissions from one mortgagor in excess of the maximum allowable amount;
charging and accepting closing costs from three mortgagors which costs were not supported in fact;
charging and accepting official fees which fees were not supported in fact;
advertising his services without the words "licensed mortgage broker" appearing in the advertisement;
failing to include a mortgagee's title insurance policy or an opinion of title from a licensed attorney without waiver from the lender;
failing to include a statement showing balances owed on existing mortgages and the status thereof; and
advancing funds for certain mortgage loans out of his personal checking account consisting of funds held in trust commingled with his personal funds and other business funds. It was also charged that respondent Alpert had had a previous administrative complaint filed against him in April of 1975, and that a stipulation was entered into by the parties wherein respondent Alpert admitted violations of chapter 494, Florida Statutes and had his mortgage brokerage license suspended for a period of ninety (90) days. It should be noted that Paragraph 14 of the Administrative Complaint was withdrawn as was the name of V. Szymanski in Paragraph 9.
The petitioner submitted its proposed findings of fact, conclusions of law and order on May 29, 1979, and the respondent submitted his on June 7, 1979.
These documents have been carefully considered by the undersigned Hearing Officer. To the extent that the findings of fact submitted by the parties are not set forth in this recommended order, they are rejected as being either irrelevant and immaterial, conclusions of law as opposed to fact and/or not supported by the evidence adduced at the hearing.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times relevant to this proceeding, respondent Martin K. Alpert was a licensed mortgage broker in the State of Florida.
In order to ensure compliance with statutory and regulatory laws, the Division of Finance sends examiners to the offices of licensed mortgage brokers to conduct an examination of the records and to counsel with licensees if deficiencies are found. These examinations are conducted on an annual basis or as close thereto as possible, depending upon manpower. The examiners have accounting degrees and use a checkoff list when making their review. Generally, they review general ledgers, disclosure statements, title insurance policies, closing cost statements, mortgage loan applications and the trust or escrow accounts maintained by the licensed mortgage broker. On seven or eight separate
days in February of 1978, Ms. Diana Evans, a Financial Examiner II with the petitioner's Tampa office, conducted an examination of the respondent' s records.
During her examination, Ms. Evans was unable to determine from the records maintained by respondent whether the investors on ten mortgage transactions received funds due them arising out of early payoffs of their loans. While Mr. Alpert maintained a file for each mortgagor, no separate files were kept for the mortgagee. When Ms. Evans inquired about this Mr. Alpert referred her to his checking account. She could not find checks showing that these investors had been paid off or otherwise determine how these funds were received by the investors. In many of these ten transactions, a loan was paid off by funds reinvested by the same mortgagee. In such cases, a disclosure statement, satisfaction of mortgage and mortgage deed existed to illustrate the transaction. In others, a new investor was involved. In both instances, the new funds were used to satisfy existing mortgages, but Ms. Evans could not substantiate that the original investor was paid off. According to Mr. Alpert, all these documents were maintained in the mortgagor's file. While Ms. Evans testified that these latter documents adequately demonstrated what transpired, her concern was that they merely created an assumption. Ms. Evans would have preferred to have seen a separate check issued to the investor to illustrate that the investors had received the early payoffs of the mortgage loans. It was Ms. Evans' testimony that respondent's record-keeping in this regard was not totally unacceptable, and that the satisfaction of mortgage illustrated that the investor had been paid off, but rather that it "was just not the best way" and a separate check issued to the investor would have made her examination easier.
In three transactions, Ms. Evans was unable to determine from respondent's records the manner in which the investor advanced funds to the mortgagor. She was not able to make this determination from the mortgagor files, the only files maintained by respondent in these three transactions. Ms. Evans would have liked to have seen a separate ledger for each investor showing the separate investments made. This would aid the petitioner in tracing the flow of funds. There was no allegation or showing that any funds invested had been lost. In fact, Mr. Alpert did have account cards on two of his investors but he did not show these to Ms. Evans. In one of three transactions, there was an early payoff and the funds were reinvested.
Respondent Alpert maintained a trust account. Ms. Evans did not find twenty-one monthly payments from mortgagors reflected in said trust account. Rather, said payments were reflected in Mr. Alpert's personal checking account which account included transactions for respondent's personal household and rental business. Respondent explained that he collected these monthly mortgage payments for his investors, deposited them into his personal checking account and remitted the payments to his investors on a weekly basis. Mr. Alpert testified that he performs this collection service at no extra fee and does it as a convenience to his investors. If he were to deposit the payments into an escrow account, there would be a ten day waiting period to validate the checks, according to respondent. By placing the payments in his own account, there is at most only a four day period between the time a payment is received by respondent and remitted to the investor. There has been no allegation to the contrary, and the record demonstrates that Mr. Alpert has maintained a sufficient balance in his personal checking account to make all payments due the investors.
After reviewing the closing cost statements and respondent's personal checking account, Ms. vans determined that on six transactions, respondent
failed to place funds advanced to him for investment in mortgage loans in an escrow account. What occurred on four of these occasions was that respondent advanced his own funds for the loan on closing day, and then the investor would come in either later that day or the next day to bring in the funds. Mr.
Alpert's name was not stated as the mortgagee and Ms. Evans could not determine from the records maintained by respondent whether respondent was advancing his own funds. In these four instances, the deposit and the closing occurred either on the same date or within one day of each other. According to Mr. Alpert, it was to the benefit of both the borrower and the lender to have an immediate transferance of funds. It was respondent's general practice, if it was not convenient for his long-term investors to advance funds ahead of time, to disburse his own funds and then have the investors reimburse him the following day. He felt it useless to place the money received from investors in trust for himself when he had already advanced the funds. On the other two occasions involving a Mr. Peacock, respondent kept in his personal checking account funds deposited by the investor for ten days in one instance and almost thirty days in another before disbursing them to the borrower. According to respondent, this delay was accomplished at the specific request of Mr. Peacock, the mortgagor, and this is the only time such an event has occurred.
Respondent charged and accepted a brokerage fee from mortgagor McSpadden in the amount of $13.82 in excess of the maximum allowable by law.
Mr. Alpert admitted this and explained it as a mathematical error on his part or a clerical error. He testified that he would willingly refund this amount if he could locate Mr. McSpadden.
When Ms. Evans reviewed three mortgagors' files, she was unable to find documentation to support certain items in the closing cost statements. These items included appraisal, credit report and title examination fees, as well as a fee for "preparation of document." In all other files examined by Ms. Evans, she was able to locate documentation to support such fees. One such fee, a
$14.00 credit report fee, has been refunded to the mortgagor. Mr. Alpert admitted that the "preparation of document" fee and the appraisal fee in one instance was an overcharge. One of the disputed title exams was introduced into evidence and Mr. Alpert testified that he found it in the file. As to the remaining appraisal fee, respondent testified that the appraisal was communicated to him by telephone for property located in another city and that he was charged for the appraisal.
In fourteen instances, respondent charged mortgagors as part of the official fee,$2.00 which was not supported in fact. This $2.00 fee was charged for an amortization schedule and should not have been included as a part of the official fee.
Respondent's name appeared in the yellow pages of the St. Petersburg telephone directory, and in a publication entitled "Com-Tel", under the heading of "Mortgages". In neither instance did the word "licensed" appear before "mortgage broker" after his name. Mr. Alpert testified that he did not request a listing in the "Com-Tel" publication and that he instructed the telephone company to list him as a "licensed mortgage broker."
In fifteen instances occuring during the last four months of 1977, respondent failed to include either a mortgagee's title insurance policy, an opinion of title from a licensed attorney or a waiver in writing by the lender. During these same four months he also, in ten instances, failed to include a statement showing the balance owed by the mortgagor on any existing mortgages prior to the investment and the status of such mortgages. Chapter 494.08(8) and
(10) were amended in September of 1977 so as to require such documents. Respondent asserts that he was unaware of the changes in the law in this regard. He now includes these documents. The petitioner introduced into evidence copies of two mailouts made by the Division of Finance to all 4500 registered mortgage brokers in July of 1977. One of the memoranda included a copy of the new legislation which was to become effective on September 1, 1977.
In April of 1976, the Division of Finance filed "Administrative Charges and Complaint" against Alpert alleging, in general, that he charged and accepted fees or commissions in excess of the maximum allowable; that he failed to deliver to borrowers a written disclosure statement; and that he failed to place in escrow funds entrusted to him as a broker. By a Stipulation signed on May 25, 1976 by the Division and Mr. Alpert, Mr. Alpert admitted the violations charged in the complaint, his mortgage brokerage license was suspended for a period of ninety (90) days, refunds of excess fees were agreed upon and the Division agreed to dismiss the Administrative Complaint.
Mr. Alpert has been a licensed mortgage broker in Florida for the past sixteen (16) years. Hie taught mortgage broker courses at St. Petersburg Junior College for five or six years beginning in 1970. These courses were primarily for the purpose of preparing students to take the licensing examination.
Most of the mortgages handled by Mr. Alpert are ten percent, three to five year second mortgages. With the exception of the yellow pages in the telephone directory, he does not advertise. He obtains referrals from banks, borrowers and other mortgage brokers. A majority of his investors have been doing business with him for over fifteen years. Mr. Alpert's general practice is as follows. When a potential borrower contacts him, he has a title examination performed and then contacts an investor. A disclosure statement is generally provided to the borrower on the second visit. At closing, the borrower executes the necessary documents, and he is given the proceeds of the loan by a check issued by Mr. Alpert from his personal account. Generally, the investor is not present at the closing. The mortgage is then sent for recording and the original note and mortgage is sent to the investor, along with an amortization schedule. The investor comes into Alpert's office either on the same day or the following day to bring Alpert the loan funds, which are deposited in Alpert's personal account. Payment cards are set up for each mortgagor. The mortgagors send their monthly payments to Alpert's office. Alpert deposits these payments into his personal checking account and, on Friday of each week, he remits to his investors a check for the collection payments received that week. As noted above, there was no allegation in the complaint nor did the evidence adduced at the hearing show that Alpert did not maintain sufficient funds in his personal checking account to cover either the advanced loans or the payments due his investors. He performed both the collection service and the advancement of his own funds for loans without charge and as a convenience to his investors and borrowers.
CONCLUSIONS OF LAW
The respondent has been charged with numerous violations of Chapter 494, Florida Statutes, and chapter 3D-40, Florida Administrative Code -- the rules regulating mortgage brokerage. The petitioner Division of Finance has satisfied its burden of proving that these violations have occurred. Some of the violations proven are more technical in nature, while others are very serious in nature. After bearing three days of testimony, reviewing the documentary evidence adduced at the hearing and considering the arguments of counsel, it is concluded that the petitioner has sufficiently demonstrated that
the numerous violations alleged did occur on respondent's behalf and that the combined violations warrant a serious penalty.
After seven or eight days of examination of the books and records of the respondent, petitioner's examiner, Ms. Evans, was unable to trace the flow of funds from borrower to investor and from investor to borrower in numerous occasions. Florida Statutes Sec. 494.06, requires mortgage brokers to maintain such books, accounts records, and documents as will enable the Department to determine whether there has been compliance with the mortgage brokerage act. While the Division's promulgated rules do not specify exactly what records must be maintained by the broker, the evidence in this case illustrates noncompliance with Sec. 494.06, Florida Statutes. The records maintained by respondent with respect to instances where there were early payoffs of loans and advancement of funds by Alpert were, while not totally insufficient, very confusing and disorderly. Only a person intimately familiar with the transaction would be able to reconstruct the flow of funds which occurred in these transactions which form the basis for the charges herein. While Mr. Alpert was able to give testimony at the hearing explaining these transactions, this testimony was often confusing and, more importantly, he was not able to provide the necessary documentation at the time his records were examined.
The evidence adduced at the hearing conclusively illustrates that respondent charged and accepted an excessive fee or commission; accepted items as closing costs which were not supported in fact; included an illegal item (amortization schedules) as a portion of the official fee and advertised his services without using the words "licensed mortgage broker " While these more technical violations token by themselves may not be grounds for a severe penalty, taken together and in connection with the other violations charged and proven herein, as well as similar, previous violations in the past, they do establish a pattern of negligence which warrants discipline.
With regard to the failure to provide the documents required by Florida Statutes Sec. 494.08(8) and (10), the undersigned concludes that respondent's claim of ignorance of those requirements is unsupported by the record. The petitioner forwarded notices of the statutory changes to all licensed mortgage brokers. Mr. Alpert admitted that he received one of the two mailouts. This alone is sufficient to put a licensee on notice. Also, a licensee has the duty to keep abreast of changes in the laws and regulations which govern his profession.
The more serious violations charged and proven are those relating to respondent's failure to place funds entrusted to him in a trust or escrow account. The evidence illustrates that Alpert utilized his personal checking account as a depository and mechanism for the receipt and disbursement of collections and funds advanced or provided for investment. It was also used by Alpert to disburse loan proceeds prior to the time he received funds from the investor. In most instances, such funds did not remain for more than several days, but in two instances, they remained there for an extended period of time. This commingling of personal funds, funds held for the benefit of borrowers and funds held for payment to the investors is clearly a violation of the statutes and regulations which govern mortgage brokers. While the respondent nay not have had any ill intent in this commingling of funds and while it was not shown that any investor or borrower was harmed by this practice, it constituted a serious violation of law for which respondent was previously put on notice back in 1976.
A mortgage broker's license may be revoked if the licensee demonstrates by a course of conduct, negligence or incompetence in performing acts for which he is required to be licensed or if he is found guilty for a second time of misconduct which warrants suspension. Section 494.05(2) . The undersigned finds, and so concludes, that the respondent has demonstrated a course of negligence and conduct in the transaction of his mortgage brokerage business for which the penalty of revocation of his license is justified and warranted. It is further concluded that respondent has previously been found guilty and has been disciplined for substantially identical offenses in the past which also warrants revocation under Florida Statutes, Sec. 494.05(2).
Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the mortgage brokerage license and registration of respondent Martin K. Alpert be REVOKED. It is further recommended that the respondent be provided a period of sixty (60) days from the date of the final order entered in this cause within which to close out all pending mortgage loan transactions.
Respectfully submitted and entered this 26th day of June, 1979, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Michael A. Gross Assistant General Counsel Office of the Comptroller The Capitol
Tallahassee, Florida 32301
John W. Bakas and
John W. McWhirter, Jr. Post Office Box 2150 Tampa, Florida 33601
Comptroller Gerald A. Lewis State of Florida
The Capitol
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE
DIVISION OF FINANCE
DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE,
Petitioner,
vs. CASE NO. 78-1321
MARTIN K. ALPERT,
Respondent.
/
FINAL ORDER
The Petitioner, Department of Banking and Finance, Division of Finance (hereinafter Department), filed an Administrative Charges and Complaint and Notice of Intent to Revoke or Suspend License or Registration on June 28, 1978. Respondent, Martin K. Alpert (hereinafter Alpert), was duly served with a copy of the aforementioned pleading on July 5, 1978. Alpert requested a formal hearing on July 20, 1978. On July 25, 1978, the Department elected to request the Division of Administrative Hearings to appoint a hearing officer to hear the matter, and on August 4, 1978, the Department was notified of the hearing officer's appointment. The matter came on for hearing on December 5, 1978, February 6, 1979, and April 11, 1979.
APPEARANCES
For Petitioner: Michael A. Gross, Esquire
Assistant General Counsel Office of the Comptroller The Capitol
Tallahassee, Florida 32301
For Respondent: John W. Bakas, Jr., Esquire
Post Office Box 2150 Tampa, Florida 33601
John W. McWhirter, Jr., Esquire Post Office Box 2150
Tampa, Florida 33601 INTRODUCTION
At the hearing the Department presented the testimony of the following witnesses:
James H. Allen, Jr.
Director, Division of Finance Office of the Comptroller
The Capitol
Tallahassee, Florida 32301
Joseph M. Ehrlich
Administrator, Financial Program Office of the Comptroller
The Capitol
Tallahassee, Florida 32301
Jose A. Torres Area Supervisor
Office of the Comptroller
Regional Service Center, Suite 714 1313 Tampa Street
Tampa, Florida 33602
Diana Carol Evans Financial Examiner
Officer of the Comptroller Regional Service Center, Suite 714 1313 Tampa Street
Tampa, Florida 33602
Respondent, Martin K. Alpert (Adverse) 4139 Fifth Street, North
St. Petersburg, Florida 33713
Exhibits 1 through 12 were received in evidence on behalf of the Department.
In his defense, Alpert produced the testimony of the following witnesses: Respondent, Martin K. Alpert
4139 Fifth Street, North
St. Petersburg, Florida 33713
James H. Allen, Jr.
Director, Division of Finance Office of the Comptroller
The Capitol
Tallahassee, Florida 32301
Exhibits A through R were received into evidence on behalf of Alpert. It should be noted that paragraph 14 of the Administrative Charges and
Complaint was withdrawn as was the name V. Szymanski in paragraph 9.
The Department submitted its Proposed Findings of Fact, Conclusions of Law and Order on May 29, 1979, and Alpert submitted his on June 7, 1979. The Hearing Officer submitted the Recommended Order and the complete record to the Comptroller on June 26, 1979. Alpert submitted Exceptions to the Recommended Order to the Comptroller on July 6, 1979.
The Comptroller, Gerald A. Lewis, as head of the Department of Banking and Finance has reviewed the entire record of the proceedings herein and hereby formally adopts the Hearing Officer's Findings of Fact and Recommended Penalty, but has modified the Hearing Officer's interpretation of administrative rules and conclusions of law.
FINDINGS OF FACT
Upon consideration of the competent substantial evidence in the record, both oral and documentary, the following relevant and material facts are found:
At all times relevant to this proceeding, Alpert was a licensed mortgage broker in the State of Florida.
In order to ensure compliance with statutory and regulatory laws, the Department sends examiners to the offices of licensed mortgage brokers to conduct an examination of the records and to counsel with licenses if deficiencies are found. These examinations are conducted on an annual basis or as close thereto as possible, depending upon manpower. The examiners have accounting degrees and use a checkoff list when making their review. Generally, they review general ledgers, disclosure statements, title insurance policies, closing cost statements, mortgage loan applications and the trust or escrow accounts maintained by the licensed mortgage broker. On seven or eight separate days in February of 1978, Ms. Diana Evans, a Financial Examiner II with the Department's Tampa office, conducted an examination of Alpert's records.
During her examination, Ms. Evans was unable to determine from the records maintained by Alpert whether the investors on ten mortgage transactions received funds due them arising out of early payoffs of their loans. While Alpert maintained a file for each mortgagor, no separate files were kept for the mortgagee. When Ms. Evans inquired about this, Alpert referred her to his checking account. She could not find checks showing that these investors had been paid off or otherwise determine how these funds were received by the investors. In many of these ten transactions, a loan was paid off by funds reinvested by the same mortgagee. In such cases, a disclosure statement, satisfaction of mortgage and mortgage deed existed to illustrate the transaction. In others, a new investor was involved. In both instances, the new funds were used to satisfy existing mortgages, but Ms. Evans could not substantiate that the original investor was paid off. According to Alpert, all these documents were maintained in the mortgagor's file. While Ms. Evans testified that these latter documents adequately demonstrated what transpired, her concern was that they merely created an assumption. Ms. Evans would have preferred to have seen a separate check issued to the investor to illustrate that the investors had received the early payoffs of the mortgage loans. It was Ms. Evans' testimony that Alpert's record-keeping in this regard was not totally unacceptable, and that the satisfaction of mortgage illustrated that the investor had been paid off, but rather that it "was just not the best way" and a separate check issued to the investor would have made her examination easier.
In three transactions, Ms. Evans was unable to determine from Alpert's records the manner in which the investor advanced funds to the mortgagor. She was not able to make this determination from the mortgagor files, the only files maintained by Alpert in these three transactions. Ms. Evans would have liked to have seen a separate ledger for each investor showing the separate investments made. This would aid the Department in tracing the flow of funds. There was no allegation or showing that any funds invested had been lost. In fact, Alpert did have account cards on two of his investors but he did not show these to Ms. Evans. In one of three transactions, there was an early payoff and the funds were reinvested.
Alpert maintained a trust account. Ms. Evans did not find twenty-one monthly payments from mortgagors reflected in said trust account. Rather, said
payments were reflected in Alpert's personal checking account which account included transactions for his personal household and rental business. He explained that he collected these monthly mortgage payments for his investors, deposited them into his personal checking account and remitted the payments to his investors on a weekly basis. Alpert testified that he performs this collection service at no extra fee and does it as a convenience to his investors. According to Alpert, if he were to deposit the payments into an escrow account, there would be a ten day waiting period to validate the checks. By placing the payments in his own account, there is at most only a four day period between the time a payment is received by Alpert and remitted to the investor. There has been no allegation to the contrary, and the record demonstrates that Alpert has maintained a sufficient balance in his personal checking account to make all payments due the investors.
After reviewing the closing cost statements and Alpert's personal checking account, Ms. Evans determined that on six transactions Alpert failed to place funds advanced to him for investment in mortgage loans in an escrow account. What occurred on four of these occasions was that Alpert advanced his own funds for the loan on closing day, and then the investor would come in either later that day or the next day to bring in the funds. Alpert's name was not stated as the mortgagee and Ms. Evans could not determine from the records maintained by him whether he was advancing his own funds. In these four instances, the deposit and the closing occurred either on the same date or within one day of each other. According to Alpert, it was to the benefit of both the borrower and the lender to have an immediate transference of funds. It was Alpert's general practice, if it was not convenient for his long-term investors to advance funds ahead of time, to disburse his own funds and then have the investors reimburse him the following day. He felt it useless to place the money received from investors in trust for himself when he had already advance the funds. On the other two occasions involving a Mr. Peacock, Alpert kept in his personal checking account funds deposited by the investor for ten days in one instance and almost thirty days in another before disbursing them to the borrower. According to Alpert, this delay was accomplished at the specific request of Mr. Peacock, the mortgagor, and this is the only time such an event has occurred.
Alpert charged and accepted a brokerage fee from mortgagor McSpadden, in the amount of $18.82 in excess of the maximum allowable by law. Alpert admitted this and explained it as a mathematical error on his part or a clerical error. He testified that he would willingly refund this amount if he could locate Mr. McSpadden.
When Ms. Evans reviewed three mortgagors' files, she was unable to find documentation to support certain items in the closing cost statements. These items included appraisal, credit report and title examination fees, as well as a fee for "preparation of documents." In all other files examined by Ms. Evans, she was able to locate documentation to support such fees. One such fee, a
$14.00 credit report fee, has been refunded to the mortgagor. Alpert admitted that the "preparation of documents" fee and the appraisal fee in one instance were overcharges. One of the disputed title exams was introduced into evidence and Alpert testified that he found it in the file. As to the remaining appraisal fee, he testified that the appraisal was communicated to him by telephone for property located in another city and that he was charged for the appraisal.
In fourteen instances, Alpert charged mortgagors as part of the official fee, $2.00 which was not supported in fact. This $2.00 fee was charged
for an amortization schedule and should not have been included as a part of the official fee.
Alpert's name appeared in the yellow pages of the St. Petersburg telephone directory and in a publication entitled, "Com-Tel" under the heading of "Mortgages". In neither instance did the word "licensed" appear before "mortgage broker" after his name. Alpert testified that he did not request a listing in the "Com-Tel" publication and that he instructed the telephone company to list him as a "licensed mortgage broker."
In fifteen instances occurring during the last four months of 1977, Alpert failed to include either a mortgagee's title insurance policy, an opinion of title from a licensed attorney or a waiver in writing by the lender. During these same four months he also, in ten instances, failed to include a statement showing the balance owed by the mortgagor on any existing mortgages prior to the investment and the status of such mortgages. Section 494.08(8) and (10) were amended in September of 1977 so as to require such documents. Alpert asserts that he was unaware of the changes in the law in this regard. He now includes these documents. The Department introduced into evidence copies of two mailouts made by it to all 4500 registered mortgage brokers in July of 1977. One of the memoranda included a copy of the new legislation which was to become effective on September 1, 1977.
In April of 1976, the Department filed an "Administrative Charges and Complaint" against Alpert alleging, in general, that he charged and accepted fees or commissions in excess of the maximum allowable; that he failed to place in escrow funds entrusted to him as a broker. By a Stipulation signed on May 25, 1976, by the Department and Alpert, Alpert admitted the violations charged in the complaint, his mortgage brokerage license was suspended for a period of ninety (90) days, refunds of excess fees were agreed upon and the Division agreed to dismiss the Administrative Complaint.
Alpert has been a licensed mortgage broker in Florida for the past sixteen (16) years. He taught mortgage broker courses at St. Petersburg Junior College for five or six years beginning in 1970. These courses were primarily for the purpose of preparing students to take the licensing examination.
Most of the mortgages handled by Alpert are ten percent, three to five year second mortgages. With the exception of the yellow pages in the telephone directory, he does not advertise. He obtains referrals form banks, borrowers and other mortgage brokers. A majority of his investors have been doing business with him for over fifteen years. Alpert's general practice is as follows. When a potential borrower contacts him, he has a title examination performed and then contacts an investor. A disclosure statement is generally provided to the borrower on the second visit. At closing, the borrower executes the necessary documents, and he is given the proceeds of the loan by a check issued by Alpert from his personal account. Generally, the investor is not present at the closing. The mortgage is then sent for recording and the original note and mortgage is sent to the investor, along with an amortization schedule. The investor comes into Alpert's office either on the same day or the following day to bring Alpert the loan funds, which are deposited in Alpert's personal account. Payment cards are set up for each mortgagor. The mortgagors send their monthly payments to Alpert's office. Alpert deposits these payments into his personal checking account and, on Friday of each week, he remits to his investors a check for the collection payments received that week. As noted above, there was no allegation in the complaint nor did the evidence adduced at the hearing show that Alpert did not maintain sufficient funds in his personal
checking account to cover either the advanced loans or the payments due his investors. He performed both the collection service and the advancement of his own funds for loans without charge and as a convenience to his investors and borrowers.
CONCLUSIONS OF LAW
The Department has both personal and subject matter jurisdiction over this proceeding pursuant to Chapter 494, Fla. Stat. Alpert is licensed pursuant to Chapter 494, Fla. Stat., and all of the acts complained of herein were carried out by, under, and through said license pursuant to the conduct of mortgage brokerage transactions in, out of, and from offices in the State of Florida.
Paragraphs 4 and 5 of Administrative Charges and Complaint - Alpert failed to keep records sufficient to enable the Department through its Financial Examiner, Diana Carol Evans, whose competence was unimpeached, to determine the disposition of the funds in the applicable transaction in violation of Sections 494.06(1)(3) and 494.05(1)(g)(h)(2), Fla. Stat., and Rule 3D-40.06(5), Fla. Admin. Code. It is explicit in Chapter 494, Fla. Stat., and Chapter 3D-40, Fla. Adm. Code, and explicit in the Department's official policy and established by the practice among mortgage brokers in Alpert's community that receipts and disbursements must be recorded in an orderly fashion in a ledger or functionally equivalent bookkeeping device to enable the Department to determine compliance with the Act. Section 494.06(1) and (3), Fla. Stat., require, inter alia, that every principal broker shall maintain such books, accounts, records, and documents as will enable the Department to determine whether the business of the licensee is being operated in accordance with the provisions of the Act. Alpert argues that these subsections are "so vague that a mortgage broker of average intelligence must guess at its meaning." However, all that is required of a statute is that the language convey a sufficiently definite warning as to the required conduct when measured by a common understanding and practices.
Section 494.06(1) and (3), Fla. Stat., require that "accounts" be kept. Webster's New Collegiate Dictionary, Copyright 1977, by G. & C. Merriam Co., defines "account" as follows: "a record of debit and credit entries chronologically posted to a ledger page to cover transactions involving a particular item or a particular person or concern." The definition of "account" is a matter of common understanding and practice, as evidenced by the prevailing practice of mortgage brokers in Alpert's community. But for two of the transactions, Alpert did not keep accounts, and he refused or was unable to produce these until the second day of hearing on February 6, 1979, approximately one year after the subject examination. On the contrary, Alpert's records were a hodgepodge of confusion and disorder and were unintelligible to anyone unfamiliar with the underlying transactions. Perhaps most persuasive is the fact that Alpert himself was unable to trace the funds at the time of examination. It was only after a thorough searching of his records and aided by his memory and personal unrecorded familiarity with the transactions that Alpert was able to trace the funds.
Under different circumstances, the Department may not have disciplined Alpert for these violations, but may have simply requested corrective action. But, under the present facts and prior history of violations, the Department considers these deficient records as part of the course of negligence and incompetence underlying all of the violations herein. However, it is the Department's position that a sufficient basis exists to impose the maximum penalty, even without consideration of these particular violations.
Paragraph 6 of the Administrative Charges and Complaint - Alpert failed to place the applicable mortgage payments received by him in an escrow account in violation of Section 494.05(1)(f)(g)(h)(2), Fla. Stat., and Rule 3D-40.06(7), Fla. Adm. Code.
All of the applicable accounts were serviced pursuant and incidental to mortgage loan transactions solicited, negotiated, processed, and closed by Alpert in his capacity as a mortgage broker. Alpert argued that his acts as a servicing agent were separate and apart from his mortgage brokerage business, so as to exempt him from the trust account requirements of the Act. However, his business practice is such that the collections are an integral part of his mortgage business. In the Manus and Chilton transactions, for example, Alpert reinvested their respective collections rather than remitting same to the respective investors. Under these facts, Alpert cannot so easily circumvent the trust account requirements of the Act by simply taking off his mortgage brokerage hat and putting on his servicing agent hat.
Paragraph 7 of the Administrative Charges and Complaint - Alpert failed to place the applicable funds advanced to him for investment in mortgage loans in an escrow account in violation of Section 494.05(1)(f)(g)(h)(2), Fla. Stat., and Rule 3D-40.06(7), Fla. Adm. Code.
Section 494.05(1)(f) contemplates at lest two types of transactions. In many mortgage brokerage transactions, the broker will require an advance deposit from the loan applicant to secure the broker's commission. Normally, a loan application or brokerage agreement is executed which provides, inter alia, that the broker shall have earned his commission at such time as he secures a lender's commitment in accordance with the same terms and conditions as provided in the agreement. If the broker obtains a lender's commitment at variance with the agreement, then he must obtain the borrower's acceptance in writing before the fee is earned. In either event, Section 494.05(1)(f), Fla. Stat., requires the advance deposit to be placed in a trust account to be disbursed to the broker only upon his receipt of a satisfactory lender's commitment. Upon the occurrence of this contingency, the broker has earned his fee even if prior to funding or closing. This type of transaction was not involved in the instant case, but is referenced so that another more relevant type of transaction may be viewed in proper perspective.
In another type of transaction within the scope of Section 494.05(1)(f), Fla. Stat., an advance deposit is not required of the borrower. Rather, the lender deposits the gross loan proceeds with the broker who clears the funds in his trust account. Upon clearance, a closing is held and the net loan proceeds are disbursed to the borrower. Rather, the lender deposits the gross loan proceeds with the broker who clears the funds in his trust account. Upon clearance, a closing is held and the net loan proceeds are disbursed to the borrower, the commission is disbursed to the broker and closing costs are disbursed to third parties. Technically, there is the additional requirement that the mortgage be recorded prior to disbursement for the obvious protection of the lender. This is the type of transaction involved in the instant case.
Alpert's practice has the effect of circumventing the use of a trust account, and at the same time, depriving the lender and borrower of the intended safeguards. The use of a trust account is not an unreasonable or unduly burdensome requirement and although Alpert had been previously advised that the Department disapproved of his practice, he continued nonetheless. Furthermore, in the two Peacock transactions, the funds were clearly held for extended
periods of time in Alpert's personal checking account in flagrant contravention of the Act.
Paragraph 16 of the Administrative Charges and Complaint - Alpert did knowingly and intentionally advance funds out of his personal checking account, consisting of funds held in trust on behalf of mortgage brokerage customers commingled with his personal funds in violation of Section 494.05(1)(f)(g)(h)(2), Fla. Stat., and Rule 3D-40.06(7), Fla. Adm. Code.
The Florida Supreme Court settled conclusively the principle that trust funds are held in a fiduciary capacity only and must be kept segregated from the general funds of the trustee. Smith v. Reddish, 151 So. 273, 275 (1933). Such commingling amounts to a misappropriation of trust funds. Myers v. Matusek, 125 So. 360, 361 (1929). The policy underlying these principles was succinctly stated by the Florida Supreme Court in the case of Voorhis v. Blook, 173 So.
750, 709 (1937):
The authorities generally agree that the duty to label trust property is required in aid of matters of proof. It prevents a trustee from substituting a less attractive or a more attractive investment, it puts the world on notice as to the status of the fund and prevents the manipulation of trust properties.
Paragraph 8 of the Administrative Charges and Complaint - Alpert charged and accepted fees or commissions from mortgagor, W. McSpadden, in a sum of $18.82 over and above the maximum allowable, under and in violation of Sections 494.08(4) and 494.05(1)(g)(h)(2), Fla. Stat., and Rule 3D-40.08, Fla. Adm. Code.
Paragraph 9 of the Administrative Charges and Complaint - Alpert charged and accepted closing costs from the applicable mortgagors which closing costs were not supported in fact in violation of Section 494.05(1)(b)(g)(h)(2), Fla. Stat., and Rule 3D-40.09, Fla. Adm. Code.
The Department finds that the $50 charge for preparation of documents is a charge which is absolutely forbidden under any circumstances under the Act.
Considering Alpert's experience, education, and prior inconsistent statement under oath, the Department finds that Alpert knowingly misrepresented this charge to the injury of Mr. McSpadden.
Paragraph 10 of the Administrative Charges and Complaint - Alpert charged and accepted official fees from the applicable mortgagors which official fees were not supported in fact, in violation of Section 494.05(1)(g)(h)(2), Fla. Stat., and Rule 3D-40.09, Fla. Adm. Code.
The $2.00 charges were imposed and identified as official fees. There were no official fees in this amount. Therefore, the charges for official fees were not supported in fact. Alpert misrepresented these fees as official fees which, by definition, are fees required by law and are not negotiable. A charge for an amortization schedule is subject to arms length negotiation if properly disclosed. The misrepresentation precluded any such negotiation.
Paragraph 11 of the Administrative Charges and Complaint - Alpert did advertise his services in the St. Petersburg yellow pages and Greater Pinellas
Com-Tel directory, without the words, "licensed mortgage broker" appearing therein in violation of Rule 3D-40.10(5), Fla. Adm. Code, and Section 494.05(1)(g)(h)(2), Fla. Stat.
Paragraph 12 of the Administrative Charges and Complaint - Alpert did negotiate the applicable mortgages and did fail to include with a copy delivered to the lender a mortgagee's title insurance policy or an opinion of title from an attorney who is licensed to practice law in this state, without waiver in writing by the lender on the land which is described in the mortgage in violation of Sections 494.08(8) and 494.05(1)(g)(h)(2), Fla. Stat.
Paragraph 13 of the Administrative Charges and Complaint - Alpert failed to include a statement with respect to the applicable mortgage showing the balance owed by the mortgagor on any existing mortgages prior to the applicable investment and the status of such existing mortgages in violation of Sections 494.08(10) and 494.05(1)(g)(h)(2), Fla. Stat.
Alpert admitted the conduct alleged in paragraphs 12 and 13 of the Administrative Charges and Complaint, but testified that he had no notice of the change in the law and had not received the advisory mailout from the Department which was sent to all mortgage brokers. The mailout referred to the change of the law and included a copy of the new law. During impeachment, Alpert admitted receiving the mailout, but denied receiving the attachment. Hence, he contradicted prior testimony made under oath. At the very least, the notice he received alerted him to the change in the law, and his retreating denial that he did not receive the attachment is devoid of credibility. Furthermore, every mortgage broker is under an affirmative duty to keep up with the changed in the law.
The Stipulation entered into between Alpert and the Department dated May 25, 1976, constitutes a finding of guilt of misconduct warranting suspension within the meaning of Section 494.05(2), Fla. Stat. Guilt imports the fact of having committed a breach of conduct. In the Stipulation, Alpert admitted the violations and, hence, the underlying breaches of conduct. Such a stipulation in an administrative proceeding is tantamount to a negotiated plea in a criminal proceeding. A conviction resulting from a plea of guilty in a criminal proceeding has the same legal affect as a conviction resulting from a trial on the merits. The same principle applies to a negotiated plea in an administrative proceeding.
RULINGS ON PROPOSED FINDINGS OF FACT
The Department's Proposed Findings of Fact are adopted herein to the extent that they are not inconsistent with the Hearing Officer's Findings of Fact adopted herein.
The rulings on Alpert's Proposed Findings of Fact are as follows:
A. Findings on Marting K. Alpert and general procedures of his office
- These findings of fact are accepted except to the extent that it is stated that Ms. Evans understood certain of the transactions upon explanation by Mr. Alpert. She was confused and correct herself in her subsequent testimony.
B. Findings on examination procedures of the Division - These findings are accepted to the extent that they coincide with the Hearing Officer's and the Department's findings adopted herein. They are otherwise rejected as unsupported by competent substantial evidence in the record, subordinate,
cumulative, irrelevant, immaterial, unnecessary, and otherwise constituting conclusions of law and legal argument as opposed to findings of fact.
C. Findings on paragraph 4 - These findings are accepted to the extent that they coincide with the Department's and the Hearing Officer's findings adopted herein. They are otherwise rejected as unsupported by competent substantial evidence in the record, subordinate, cumulative, irrelevant, immaterial, and otherwise constituting conclusions of law and legal argument as opposed to findings of fact.
D. Findings on paragraph 5 - These findings are accepted to the extent that they coincide with the Department's and the Hearing Officer's findings adopted herein. They are otherwise rejected as unsupported by competent substantial evidence in the record, subordinate, cumulative, irrelevant, immaterial, and otherwise constituting conclusions of law and legal argument as opposed to findings of fact.
E. Findings on paragraph 6 - These findings are accepted to the extent that they coincide with the Department's and the Hearing Officer's findings adopted herein. They are otherwise rejected as unsupported by competent substantial evidence in the record, subordinate, cumulative, irrelevant, immaterial, and otherwise constituting conclusions of law and legal argument as opposed to findings of fact.
F. Findings on paragraph 7 - These findings are accepted to the extent that they coincide with the Department's and the Hearing Officer's findings adopted herein. They are otherwise rejected as unsupported by competent substantial evidence in the record, subordinate, cumulative, irrelevant, immaterial, and otherwise constituting conclusions of law and legal argument as opposed to findings of fact.
G. Findings on paragraph 8 - These findings are accepted to the extent that they coincide with the findings of the Department and the Hearing Officer as adopted herein. They are otherwise rejected as unsupported by competent substantial evidence in the record and as constituting legal argument as opposed to findings of fact.
H. Findings on paragraph 9 - These findings are accepted to the extent that they coincide with the findings of the Department and the Hearing Officer as adopted herein. They are otherwise rejected as unsupported by competent substantial evidence in the record, immaterial, and irrelevant.
I. Findings on paragraph 10 - These findings are accepted except for the next to the last sentence which constitutes a conclusion of law.
J. Findings on paragraph 11 - The first sentence of these findings is accepted. The second sentence is rejected on the basis of lack of credibility. The balance is rejected as unnecessary.
K. Findings on paragraph 12 - These findings are rejected as unsupported by competent substantial evidence in the record, irrelevant, immaterial, and as otherwise constituting legal argument as opposed to findings of fact.
L. Findings on paragraph 13 - These findings are rejected as unsupported by competent substantial evidence in the record, irrelevant,
immaterial, and otherwise constituting legal argument as opposed to findings of fact.
M. Findings on paragraph 15 - See ruling on Exception to paragraph
12.
N. Findings on paragraph 16 - These findings are rejected as
unnecessary, immaterial, irrelevant, and unsupported by competent substantial evidence in the record.
RULINGS ON ALPERT'S EXCEPTIONS TO RECOMMENDED ORDER
Exception to paragraph 3 - Alpert has requested that certain of the Hearing Officer's Findings of Fact be rejected as inconsistent. The Department's findings numbers 4, 5, 6, 7, and 8 adopted herein clarify the apparent inconsistency. It was only months after the examination and after searching his records that Alpert was able to trace the disposition of the issuable funds with a reasonable degree of probability. At this late date, the disposition of the funds became apparent to Ms. Evans upon Alpert's explanation. Her testimony at the hearing must be considered in this context and it then becomes clear that the Hearing Officer's findings are not inconsistent.
Exception to paragraph 4 - It is true that Ms. Evans' preferences do not necessarily determine Departmental policy. A ledger is but one of a variety of bookkeeping devices which are acceptable if they reflect receipts and disbursements in an orderly fashion. The Hearing Officer found only that Ms. Evans could not trace the receipts and disbursements.
Exception to paragraph 6 - While the Department defers to the Hearing Officer's finding, Alpert's suggested finding would not in any event alter any of the conclusions of law. Obtaining a satisfactory lender's commitment gives the broker the right to disburse a borrower's advance fee deposit from trust, but the money must first be placed in trust. The transactions herein involved no advance fees. Alpert's practice had the effect of circumventing the use of a trust account, and at the same time depriving the lender and borrower of the intended safeguards.
Exception to paragraph 9 - There is competent substantial evidence in the record to support the Hearing Officer's finding that the charges for amortization schedules were improperly listed as official fees.
Exception to paragraph 11 - The Department's mail-out advised Alpert of the changes in the law, and there was competent testimony that a copy of the new legislation was attached as indicated in the mailout.
Exception to paragraph 12 - The characterization of the violations as technical or serious in the present action contemplates a conclusion of law and not a finding of fact. In any event, the fact that Alpert admitted to "technical violations" in a prior proceeding does not preclude a finding that the violations in the present action are more serious than Alpert is willing to admit.
First Exception to Conclusions of Law - Alpert is correct in that the violation is specifically directed to subsections (1) and (3) of Section 494.06, Fla. Stat. Alpert argues that these subsections are, "so vague that a mortgage broker of average intelligence must guess at its meaning." But, it is noted
that Alpert himself could not trace the flow of funds at the time of the examination. A competent mortgage broker does not have to guess at what records he must keep to enable himself to trace the flow of funds. Even after searching his records and his memory, Alpert was only able to show records which created inferences as to the disposition of the funds.
A competent mortgage broker would devise a record-keeping system which would enable him to determine the flow of funds and then presumably could demonstrate the flow of funds to a competent examiner. The Department's objection is that Alpert's records were so disorderly as to render the examiner's job unreasonably difficult at the very least, and in fact, impossible at the time of the examination.
All that is required of a statute is that the language convey a sufficiently definite warning as to the required conduct when measured by common understanding and practices. It is clear by common understanding and practice that any orderly recordation of receipts and disbursements will satisfy the statute. The Department's finding is simply that the state of disorder and confusion of Alpert's records constitutes an element of the negligence and incompetence underlying all of the violations cited in the Administrative Charges and Complaint.
Second Exception to Conclusions of Law - The record supports the Hearing Officer's reasoning that Alpert was unable to document the flow of funds at the time of the examination. This statement is not a conclusion of law in itself but is an element of the underlying conclusions of law discussed above.
Third Exception to Conclusions of Law -
As to the fee overcharge, guilt imports the fact of having committed a breach of conduct. The statute makes no suggestion that an intentional or wilful breach is essential to a finding of guilt. In fact, a license may be revoked pursuant to Section 494.05(2), Fla. Stat., for negligence or incompetence. Furthermore, Section 494.08(4), Fla. Stat., is sufficiently definite in that the record reflects that Alpert calculated the correct fee and then admitted the precise amount of the overcharge.
The argument in 9(a) applies to items accepted as closing costs which were not supported in fact.
The $2.00 charges were imposed for official fees. There were no official fees in this amount. Therefore, the charges for official fees were not supported in fact. Alpert misrepresented the fee as an official fee which is a fee required by law and is not negotiable. A charge for an amortization schedule is subject to arms length negotiation if properly disclosed. The misrepresentation precluded any such negotiation.
Paragraph 10 of the Hearing Officer's Findings of Fact merely restates Alpert's testimony regarding the subject advertisements. However, the Hearing Officer concluded in her Conclusions of Law that Alpert's advertisements constituted a violation of the Act. Therefore, the Hearing Officer necessarily rejected the credibility of or gave little weight, if any, to Alpert's testimony in this regard.
Fourth Exception to Conclusions of Law - The Department finds as a matter of law that Alpert's collection practices were sufficiently connected to
his mortgage brokerage business to fall within the scope of the trust account requirement.
Fifth Exception to Conclusions of Law - Alpert has misconstrued Section 494.05(1)(f), Fla. Stat., in section 11 of his Exceptions. Obtaining a satisfactory commitment permits disbursement of an advance brokerage fee out of trust when the contract between the borrower and mortgage broker expressly so provides. This provision in the statute contemplates a borrower who has made an advance deposit to secure the broker's fee and has agreed to disbursement of the fee upon receipt of a satisfactory commitment and prior to closing and disbursement of the loan proceeds. This was not the case in the instant transactions. Here there were no advance deposit agreements. In any event, obtaining a commitment simply authorizes disbursement of an advance fee from trust, but does not excuse the broker from the requirement of using a trust account.
The violation concerns the fact that the funds were not deposited in trust in the required chronological sequence prior to closing. Alpert's practice had the effect of circumventing the use of a trust account and depriving the lender and borrower of the intended safeguards. Furthermore, in two of the transactions, trust funds were clearly held for extended periods of time in Alpert's personal checking account. In these two transactions, Alpert did not advance his own funds and receive the lender's funds after closing. Hence, there can be no argument that the funds were not entrusted to him. Furthermore, the deposits were not exempted from the trust account requirement on the basis that a commitment had been obtained, as these were not advance deposit transactions.
Sixth Exception to Conclusions of Law - Alpert argues that the Department "admitted" in the previous Stipulation that escrow infractions were merely "technical" as opposed to serious violations. To the contrary, a close reading of the Stipulation of May 25, 1976, reveals that the Department "agreed", inter alia, that if Alpert admitted that certain technical violations occurred, it would dismiss the administrative charges and complaint. Such is substantially different from the Department agreeing or admitting that such violations are technical. The Department only agreed by compromise that a certain admission constituted sufficient consideration to dismiss the administrative charges and complaint under the attendant circumstances.
However, to continue this reasoning is to miss the point. A violation can be both technical and serious. Failure to give Miranda Warnings during custodial interrogation may cause a conviction to be thrown out on a technicality. Nonetheless, the technicality is considered serious enough to throw out the conviction. To carry this semantic dialectic further, a technical violation is sometimes characterized as one resulting in no injury, but which may be, as in the case of trust account violations, serious in terms of the risk of injury to which depositors are exposed.
Alpert next argues that the Department is estopped to criticize his practice of depositing mortgage collections in his personal checking account as opposed to a trust account, because the Department did not allege such a violation in the 1976 Administrative Charges and Complaint. A review of said Complaint and the underlying examination report reflects many serious violations of the Act, including trust account violations.
In any event, application of the principle of estoppel to the Department would be misplaced in this instance. If the practice does constitute a
violation, it is at the risk of injury to the public and not to the Department. To estop the Department from proscribing illegal conduct would only benefit Alpert at the expense of the rights of the public. Different reasoning may or may not apply in a dispute between private litigants where the rights of the public are not in issue.
To carry Alpert's argument to its logical conclusion is to hold that since he did not get caught the first time, he cannot be punished the second time.
Such reasoning is patently absurd.
Seventh Exception to Conclusions of Law - Alpert's argument relative to the legal effect of the previous Stipulation is an attempt to elevate form over substance. Guilt here is the fact of having committed a breach of conduct involving a penalty. That Alpert admitted the violations and agreed to the penalty is tantamount to a finding of guilt. Alpert's claim of deprivation of due process is without merit. An Administrative Charges and Complaint was filed and Alpert was advised of his right to a hearing in the previous as well as the instant action. In the first action, the right to hearing was knowingly and voluntarily withdrawn pursuant to his Stipulation.
ORDER ON MOTION TO DISMISS COMPLAINT
Alpert's Motion to Dismiss Complaint is denied for reasons stated in the Conclusions of Law and rulings on Exceptions.
PENALTY
Section 494.05(2), Fla. Stat., provides:
The license of a licensee may be revoked, if the application for the license is found to contain a material misstatement, or the licensee demonstrates by a course of conduct, negligence or incompetence in performing any act for which he is required to hold a license under this act, or if the licensee for a second time, shall be found guilty of any misconduct which warrants his suspension under subsection (1).
The Department finds that Alpert's violations of Section 494.05(1)(b)(f)(g)(h), Fla. Stat., when taken together with the previous finding of guilt warranting suspension, form a sufficient basis for revocation of his license pursuant to Section 494.05(2), Fla. Stat., to wit: that Alpert has, for a second time, been found guilty of misconduct warranting suspension of his license.
Secondly, when all of the acts of misconduct are considered cumulatively, they demonstrate a course of negligence and/or incompetence in performing material acts for which Alpert is required to hold a license under this Act.
Hence, two out of the three bases for revocation have been met. The Department has also considered that Alpert's present violations are identical to or substantially similar to the violations for which he was previously cited.
Therefore, it is the Department's finding that, among other wilful violations cited herein, the present trust account violation in particular was committed wilfully and constitutes an aggravating circumstance such as to form an additional basis for the maximum penalty within the permissible range of statutory authority.
FINAL ORDER
Therefore, it is ORDERED AND ADJUDGED:
That mortgage brokerage license number 123 and registration number 90- 3188, which was heretofore issued to Respondent, Martin K. Alpert, be and the same is hereby REVOKED and execution shall issue FORTHWITH without STAY.
That Respondent, Martin K. Alpert, shall be allowed forty-five (45) days from the date of this Order in which to close out and wind up all pending mortgage loan transactions.
That Respondent, Martin K. Alpert, shall surrender his license FORTHWITH to James H. Allen, Jr., Director, Division of Finance, Office of the Comptroller, The Capitol, Tallahassee, Florida, 32301.
DONE AND ORDERED at Tallahassee, Florida, on this 24th day of September, 1979.
GERALD A. LEWIS
Comptroller of the State of Florida The Capitol
Tallahassee, Florida 32301
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original of the foregoing was filed with the Clerk of the Department of Banking and Finance, Division of Finance and a true and correct copy of the foregoing was furnished by U.S. Mail to John W. Bakas, Jr., Esquire, Post Office Box 2150, Tampa, Florida, and hand delivered to Diane
D. Tremor, Esquire, Hearing Officer, Division of Administrative Hearings, Carlton Building, Tallahassee, Florida, and Michael A. Gross, Esquire, Assistant General Counsel, Office of the Comptroller, The Capitol, Tallahassee, Florida, this 24th day of September, 1979.
Michael A. Gross
| Issue Date | Proceedings |
|---|---|
| Sep. 24, 1979 | Final Order filed. |
| Jun. 26, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 24, 1979 | Agency Final Order | |
| Jun. 26, 1979 | Recommended Order | Respondent's license should be revoked after close-out period for numerous violations of the statutes. |
