STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BANKING )

AND FINANCE, )

)

Petitioner, )

)

vs. ) CASE No. 86-0329

)

PHILIP DENNIS, an individual, ) and MEDI FUND, INC., a )

Florida Corporation, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to Noticed this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 19, 1986, in Coral Gables Florida.

Petitioner Department of Banking and Finance was represented by Deborah Hoffman Esquire, Miami Florida. Respondents Philip Dennis, an individual, and Medi Fund Inc. a Florida corporation, did not appear and were not represented although notice of the final hearing was properly given.

Petitioner issued a Cease and Desist Order and Notice of Rights alleging that Respondents had committed violations of the Florida Mortgage Brokerage Acts and Respondents timely requested a formal hearing on the allegations contained within that Order. Accordingly, the issue for determination herein is whether Respondents are guilty of the allegations contained within that charging document.

Petitioner presented the testimony of John Kennedy, William E Kickliter Robert N. Goldstein, and Bryan Miller. Additionally, Petitioner's Exhibits numbered 1-14 were admitted in evidence.

Petitioner submitted posthearing proposed findings of fact in the form of a proposed recommended order. Petitioner's proposed findings of fact numbered 3- 11, 13-21, 23-26, 29, and 30, have been adopted in substance. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 1, 2, 27, and 28 as being subordinate, 12 and 22 as being immaterial, and 31 as not constituting a finding of fact.

FINDINGS OF FACT

1. During 1984 Philip Dennis on his own behalf and on behalf of Medi Fund Inc. negotiated in Florida with William Kickliter for the purpose of arranging a mortgage loan. During those negotiations Respondent Dennis represented to Kickliter that both he and Respondent Medi Fund, Inc., were mortgage brokers licensed by the State of Florida. In his stated capacity as a mortgage broker, Respondent Dennis drafted and entered into an agreement with Kickliter whereby

   Kickliter would obtain a mortgage loan from Respondent Medi Fund, Inc., for financing an ongoing business. Respondent Dennis signed the agreement between Kickliter and Respondent Medi Fund, Inc., pursuant to which Kickliter gave to Respondent Dennis a refundable advance fee of $1,500 by check made payable to Respondent Medi Fund, Inc.

   
   

2. No mortgage loan was ever consummated. When Kickliter made demand on Respondent Dennis for the return of his monies, Respondent Dennis sent to Kickliter a post-dated check for only $850 with a notation on that check that it was allegedly for full payment of the refundable advance fee. When Kickliter deposited that check, the check "bounced." Respondent Dennis then stopped payment on the check. Kickliter's refundable advance fee has never been refunded to him by either Respondent Dennis or Respondent Medi Fund, Inc.

   
   

3. In 1983 Respondent Dennis negotiated in Florida with Robert N. Goldstein to secure financing so that Goldstein's company Hospitality Consultants, Inc., could acquire a hotel. Respondent Dennis drafted and presented to Goldstein and Goldstein's partner Thomas Palumbo an agreement between Respondent Dennis and Hospitality Consultants, Inc., whereby Respondent Dennis would seek mortgage funding for the corporation. In that agreement Respondent Dennis designated himself as "the broker", a designation which matched his oral representations to Goldstein that he was a mortgage broker licensed in the State of Florida. Respondent Dennis executed that agreement on March 11, 1983, on his own behalf.

   
   

4. In 1985 Respondent Dennis negotiated in Florida with Bryan Miller of Deco Redevelopment Corp. to secure real estate mortgage loan financing for hotels located in Miami Beach. Respondent Dennis on behalf of Respondent Medi Funds Inc., drafted an agreement whereby Respondent Medi Funds Inc. would secure financing for real estate renovation and new construction of a hotel complex to be built in Miami Beach. Respondent Dennis entered into that agreement on behalf of Respondent Medi Fund Inc. Pursuant to, that agreement, Miller paid to Respondent Dennis on behalf of Respondent Medi Funds Inc., the sum of $5,000 as a refundable advance fee.

   
   

5. Neither Respondent Dennis nor Respondent Medi Funds Inc. has arranged any mortgage loan to Deco Redevelopment Corp. Furthers the $5,090 Refundable advance fee paid to Respondents Dennis and Medi Fund Inc. has never been refunded.

   
   

6. In 1985 Respondent Dennis while in Florida negotiated with Millie Bulkeley of Arizona for mortgage loan financing for a mobile home park in Arizona. Thereafter Respondent Dennis drafted and entered into an agreement with Bulkeley whereby Respondent Medi Fund Inc., would secure real estate financing for her. Pursuant to that agreement Bulkeley deposited into Respondent Dennis's bank account in New York $20,000 as a refundable advance fee.

   
   

7. No financing was ever secured for the project by Respondent Dennis or Respondent Medi Fund Inc. and the refundable advance fee has never been refunded.

   
   

8. During 1983, 1984, and 1985 Respondent Dennis represented himself as being an officer of Respondent Medi Fund Inc. and misrepresented to persons both orally and in writing that both Respondent Dennis and Respondent Medi Fund, Inc., were mortgage brokers licensed by the State of Florida. During the time

   period of December 1982 up to and including May 2, 1986, neither Respondent Dennis nor Respondent Medi Fund, Inc., has been a licensed mortgage broker.

   
   

9. By Order entered April 16, 1986, in this cause Petitioner was awarded certain costs against Respondent Medi Funds Inc., as a result of Medi Fund, Inc.'s, refusal to engage in discovery. Those reasonable costs are $45 for the attendance of the court reporter, $318.10 for the travel expense incurred by Petitioner's attorney, and $1,275 as an attorney's fee for Petitioner's attorney.

   
   

10. The Order of April 16, 1986, also required Respondent Medi Funds Inc. to return to Petitioner the witness fee and mileage fee paid to it before its non-appearance at its scheduled deposition.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1); Florida Statutes.

    
    

12. Respondents Dennis and Medi Fund, Inc. have held themselves out to be and have acted as mortgage brokers in Florida without first obtaining a Florida license, in violation of Section 494.04(1), Florida Statutes. Similarly, both Respondents Dennis and Medi Funds Inc. have charged and received advanced fees in connection with arranging or negotiating a mortgage loan although not licensed Florida mortgage brokers in violation of Section 494.O8(4)(a); Florida Statutes. By uncontroverted evidence, petitioner has clearly sustained its burden of proving that both Respondents Dennis and Medi Fund, Inc. have violated the provisions of the Florida Mortgage Brokerage Act, Chapter 494; Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondents Philip Dennis and Medi Fund, Inc., guilty of the allegations contained within the Cease and Desist Order filed herein ordering Respondents Dennis and Medi Fund, Inc. to forthwith and immediately cease and desist from any further violations of Chapter 494, Florida Statutes, requiring Medi Funds Inc. to return to the State of Florida the witness fee and mileage paid to it pursuant to the April 16, 1986 Order entered herein and requiring Respondent Medi Funds Inc. to pay to the State of Florida the sum of $1,638.10, as further required by the April 16, 1986 Order entered herein.

DONE and RECOMMENDED this 29th day of August 1986 at Tallahassee Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1986.

COPIES FURNISHED:

Gerald Lewis, Comptroller State of Florida

The Capitol

Tallahassee, Florida 32301

Deborah Hoffman, Esquire Thomas E. Glick Esquire Office of Comptroller

401 N.W. 2nd Avenue, Suite 870 Miami Florida 33128

Philip Dennis

2124 Northeast 167 Street

North Miami Beach, Florida 33160

Medi Funds Inc., a Florida Corporation c/o Philip Dennis

2124 Northeast 167 Street

North Miami Beach, Florida 33160

Docket for Case No: 86-000329

Orders for Case No: 86-000329