STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAROLD SELIGMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4623

)

OFFICE OF COMPTROLLER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 27, 1988, in Fort Lauderdale, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth S. Sandler, Esquire

4700 B Sheridan Street Hollywood, Florida 33021

For Respondent: Charles E Scarlett, Esquire

Office of the Comptroller Department of Banking and Finance The Capitol

Tallahassee, Florida 32399-0350 ISSUE

Whether Petitioner may be granted a certificate as an associated person of a securities firm.

BACKGROUND AND PROCEDURE

On September 17, 1987, the Office of the Comptroller issued a Letter of Denial and Notice of Rights to Petitioner regarding his application for registration as an associated person of a named securities firm. That Letter of Denial was based upon findings of the Court in a Temporary Restraining Order (Injunction) and upon a Stipulation for Preliminary Injunction and upon the accompanying Final Order of Preliminary Injunction entered against Petitioner in State of Florida ex rel. v. First Fidelity Financial Services, Harold Seligman, et al., Case No. 82-5568CT, drawing there from the conclusion that Petitioner had exhibited untrustworthiness to transact business as an associated person pursuant to Rule 3E-600.011, Florida Administrative Code. Petitioner timely requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, and this proceeding ensued.

Petitioner, both in his application for licensure and in supporting documentation had represented to the agency that the Order of Preliminary

Injunction was never signed by the Circuit Judge and therefore was of no force and effect. Subsequent to the original Letter of Denial and in the course of preparation for formal hearing, the agency became aware that such an Order had, indeed, been signed. Therefore, Respondent moved, 13 days prior to formal hearing, for leave to amend the Agency's Letter of Denial so as to reflect that its denial of licensure was now additionally based upon Petitioner's alleged misrepresentation in the application process which the agency viewed as constituting further "unworthiness" under Rule 3E-600.011, Florida Administrative Code, and a "material false statement" forming additional basis for denial under Section 517.161(1) (b), Florida Statutes. The Motion was opposed.

After oral argument immediately prior to the commencement of formal hearing, it was determined that Petitioner would not be prejudiced by the amendment inasmuch as the additional cause for denial was based upon documents provided to Petitioner in discovery and currently in his possession. The motion was granted.

Petitioner presented the oral testimony of Hugh Hawes Bowers, Jr., and testified on his own behalf. Petitioner had two exhibits admitted in evidence, one of which was the deposition of Michael Huberman. Respondent presented no oral testimony but had admitted four out of five exhibits offered.

A transcript of formal hearing was filed May 19, 1988, and proposed findings of fact and conclusions of law were timely filed by the parties within a stipulated time frame. The respective proposed findings of fact have been ruled upon in the Appendix to this Recommended Order pursuant to Section 120.59(2), Florida Statutes.

FINDINGS OF FACT

1. On July 5, 1987, Petitioner, Harold Seligman, filed with the Respondent Office of the Comptroller an application for registration as an associated person of Huberman, Margaretten, and Strauss, a securities firm.

   
   

2. By Letter of Denial of September 17, 1987, Respondent denied Petitioner's application. Thereafter, pursuant to Motion and Order, Respondent filed an amended denial letter. The grounds alleged for denial were:

   
   

   1. The entry of a Temporary Restraining Order dated March 30, 1982, and an Injunction dated July 9, 1982 against the Petitioner, enjoining him from the sale of securities, constituting trima facie evidence of unworthiness under Rule 3E-600.011(2), Florida Administrative Code; and

      
      

   2. An alleged material misrepresentation In Petitioner's U-4 Application since he had represented therein that the July 9, 1982 Order of Preliminary Injunction was null and void and attached a certified signed copy of the July 2, 1982, Stipulation for Preliminary Injunction and a certified copy of the July 9, 1982 Order of Preliminary Injunction which was not executed by the Circuit Judge.

      
      

3. On March 30, 1982, a Temporary Restraining Order (TRO) was entered in State of Florida ex rel. v. First Fidelity Financial Services, et al., Case No. 82-556CT in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, ex parte and without notice, to Petitioner and his corporation, Franklin Capital Corp., among other defendants. Petitioner was operating as a mortgage broker. The TRO contains specific preliminary findings

   of fraud, misrepresentation, misappropriation of funds, and false advertising by all the defendants. By the very nature of a TRO, the findings of fact therein are preliminary and subject to being revisited subsequent to its entry, at a time and place when the party or parties restrained will have an opportunity to rebut the allegations of the verified Complaint for Injunctive Relief upon which the TRO is initially issued. The pertinent language of decretal paragraph 10 of that TRO reads:

   
   

   This Order shall expire within ten (10) days from the date and time set forth below unless otherwise ordered by this Court.

   Hearing on this is . . . set before the

   Court in Chambers on April 6, 1982 at 2:00 p.m.

   
   

   The TRO was, however, not dissolved on April 6, 1982.

   
   

4. On July 2, 1982, a Stipulation of Preliminary Injunction was entered into between the Office of the Comptroller and Franklin Capital Corp. and Respondent Seligman. That Stipulation provided that it was entered into upon certain grounds and representations, in pertinent part:

   
   

   Without prejudice to the aforementioned appeal, and without this Stipulation constituting any evidence or admission by the Defendants with respect to any issue of law or fact arising from the allegations of the Plaintiff's Complaint and/or any other papers filed by the Plaintiff herein, FRANKLIN CAPITAL CORP. and HAROLD SELIGMAN,

   their agents, servants, employees and other persons in concert with them are hereby preliminarily enjoined until further order of this Court . . .

   
   

5. The foregoing Stipulation was also conditioned upon entry by the Circuit Court of an Order approving and adopting it. This was thereafter accomplished on July 9, 1982, when Circuit Court Judge Tedder entered an Order of Preliminary Injunction prohibiting Petitioner from:

   
   

   1. Selling or offering for sale securities, specifically notes, evidence of indebtedness or investment contracts in the form of whole or fractionalized interests in promissory notes or any other securities within the State of Florida which have not been registered with the Plaintiff pursuant to Chapter 517, Florida Statutes;

   2. Selling or offering for sale securities in or from offices in this State or selling securities in this State to persons thereof from offices outside the state, by mail or otherwise, through a dealer, associated person or issuer of securities who have not been registered with Plaintiff pursuant to Section 517.12, Florida Statutes;

   3. In connection with the offer, sale or

      purchase of a security, violating the provisions of Section 517.301, Florida Statutes, or any other provision of Chapter 517, Florida Statutes; and,

   4. In any practice, transaction or course of business relating to the sale, purchase, negotiation, promotion, advertisement or hypothecation or mortgage transactions, violating the provisions of Section 494.093, Florida Statutes, or any other provision of Chapter 494, Florida Statutes.

   
   

6. On January 31, 1983, Franklin Capital Corporation and Seligman appealed to the Fourth District Court of Appeal a January 5, 1983 Circuit Court Order denying their Motion requesting that the Preliminary Injunction be dissolved for lack of subject matter jurisdiction.

   
   

7. On October 12, 1983, the Fourth District Court of Appeal in Franklin Capital Corporation, Harold Seligman v. State of Florida ex rel. Gerald Lewis,

   441 So.2d 659 (Fla. 4th DCA 1983), held that subject matter jurisdiction under Chapter 517, existed to prosecute Seligman and others for violations of securities laws and per curiam affirmed the Circuit Court order denying dissolution of the Preliminary Injunction. (See Conclusions of Law).

   
   

8. At formal hearing, Petitioner testified that he understood that final resolution of the foregoing appeal regarding the Order of Preliminary Injunction was that, "a 'mortgage' was a 'security' and you needed a securities license.

   
   

9. On his licensure application Seligman disclosed that he had previously been enjoined by a Court from the sale of securities and that an Order had been entered against him in connection with investment related activity. However, Petitioner also submitted a copy of the July 2, 1982 Stipulation for Preliminary Injunction, and a copy of the July 9, 1982 Order of Preliminary Injunction. The latter copy of the July 9, 1982 Circuit Court Order of Preliminary Injunction submitted by Seligman was, however, an unsigned copy. Each copy submitted by Seligman bears a certification of May 2, 1987 by a Broward County Circuit Court Deputy Clerk that each is a "true and correct copy of the original as it appears on record." Seligman, in reliance on that certification, represented on his application to Respondent that "The Preliminary Injunction was not signed by the Judge as he ordered me released" and was "null and void." The date of certification by the Circuit Court Deputy Clerk and the hand- lettered page numbering on these copies submitted by Seligman with his application strongly militate against any suggestion of manipulation or alteration of these documents by Mr. Seligman and concomitantly suggest clerical error has occurred in the Office of the Circuit Court Clerk.

   
   

10. Petitioner Seligman presented the testimony of the Receiver, Hugh Hawes Bowers, Jr., who had been appointed by Circuit Court Judge Tedder under the initial TRO. Bowers affirmatively testified that throughout his administration of the receivership, he had found no irregularities with the business of either Seligman or his corporation and that all of the findings of fact of improper, illegal, or nefarious dealings set forth in the March 30, 1982 TRO were false with regard to Petitioner and his corporation, although the allegations/facts found in the TRO had proved to be true with regard to other unconnected defendants named in the same lawsuit. Bowers opined that all funds and mortgages handled by Franklin Capital Corp. and by Petitioner had been properly administered. During the course of his receivership, which involved an

    accounting, Bowers discovered no misrepresentations attributable to Petitioner. His testimony, however, could best be described as "guarded" and not revelatory of what may have occurred before he assumed the receivership. Bowers' receivership was terminated and control of the corporation was returned to Petitioner without any objection by Bowers, but it is not clear exactly when the corporation was returned to Seligman's control or under what conditions, if any.

    
    

11. Petitioner holds a real estate brokerage license active since 1964 and an inactive mortgage brokerage license. Petitioner has never had disciplinary action taken with regard to either license.

    
    

12. Petitioner's application is for a certificate of registration as an associated person with Huberman, Margaretten and Strauss, with whom he has had a securities account for approximately four years. Michael Huberman, president of that firm, testified by deposition as to his high opinion of Petitioner with regard to honesty and Petitioner's personal dealings with Mr. Huberman.

    However, Mr. Huberman did not personally handle Petitioner's account, was unknowledgable about Petitioner's pending application, and had no real knowledge of Petitioner's reputation among others in the community but outside his firm for truth and veracity or honest dealing. Basically, Mr. Huberman's testimony could be summarized that Petitioner and his present wife are valued customers.

    Huberman's testimony is therefore neutral, and detailed discussion of the many discrepancies in his testimony, which either evidence a remarkably poor memory or lack of credibility, is unnecessary.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to section 120.57(1), Florida Statutes.

    
    

14. Section 517.161, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. Registration under section 517.12 may be denied . . . by the department if the department determines that such applicant or registrant:

       * * *

       (b) Has made a material false statement in the application for registration;

       * * *

       (h) Has demonstrated his unworthiness to transact the business of dealer, investment adviser or associated person;

       * * *

       Rule 3E-600.011, Florida Administrative Code, further provides as follows:

       
       

       Rule 3E-600.011. Prima facie evidence of unworthiness to transact the business of a dealer, investment adviser, principal, or agent of the State of Florida shall include, but shall not be limited to

       * * *

    2. Any injunction, suspension, prohibition, revocation, denial or administrative order by any state or

    federal agency, national securities exchange or national securities association, involving a violation of any federal or state securities law or any rule or regulation promulgated thereunder, and 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, or any court of competent jurisdiction. [Emphasis supplied].

    
    

15. Petitioner's representation with regard to the certified but unsigned copy of the July 9, 1982 Order of Preliminary Injunction is a natural error for a layman and cannot legitimately be characterized as a material misrepresentation in light of his otherwise full disclosures on his application together with his attachment of the Stipulation for Preliminary Injunction and the unsigned Order of Preliminary Injunction. Certainly, Petitioner's misunderstanding of the situation in light of receiving in 1987 an unsigned copy from the Circuit Court Deputy Clerk and the return of his business into his control in 1982 or 1983 is hardly tantamount to a material misrepresentation, because having made his disclosures it would be contrary to reason for him to believe the agency would not, as it in fact did, eventually discover that the Order of Preliminary Injunction actually had been entered by Circuit Judge Tedder.

    
    

16. Black's Law Dictionary defines a "material fact" as that to which "a reasonable man would attach importance in determining his choice of action in the transaction in question." The fact of entry of the July 9, 1982 Preliminary Injunction is certainly material, but "misrepresentation" requires knowledge of the truth with the intent to mislead to a patent and material untruth. That intent is lacking in this fact situation. Because of the return of his business to him, Petitioner's confusion is understandable and I reject Respondent's assessment that because Petitioner knew there had been an unsuccessful appeal upon grounds of subject matter jurisdiction of a January 5, 1983 Order denying dissolution of the July 9, 1982 Order, Petitioner consequently had to have knowingly misrepresented the status of the July 9, 1982 Order of Preliminary Injunction on his application made five years later in 1987.

    
    

17. As to the charges regarding Rule 3E-600.011 and the prima facie case of "unworthiness," it is a different matter.

    
    

18. In a licensure proceeding, the burden to prove eligibility is upon Petitioner. That burden is by a preponderance of the evidence. See, Rule 28- 6.08, Florida Administrative Code, Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981), Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

19. At formal hearing, the parties concentrated on the March 30, 1982 TRO. Indeed, that TRO is an "injunction" which establishes the prima facie case of "untrustworthiness." Petitioner then attempted to overcome, by the use of parol evidence from Mr. Bowers, the findings of fact contained in that TRO/injunction, particularly as they regard misappropriation of funds and fraud. Normally, parol evidence may not be used to contradict, vary, or affect the construction of the terms of a written document. See, Carlton, Inc. v. Southland Diversified Company, 381 So.2d 291 (Fla. 4th DCA 1980) However, Mr. Bowers' testimony can

    be considered as character testimony, to demonstrate final disposition of the assets of Petitioner's corporation, to show the final outcome of the TRO, or as it has bearing on the issue of misrepresentation in the application; therefore, it was admitted. Having considered same, however, even if parol variance of the TRO were permissible, once the July 9, 1982 Order of Preliminary Injunction was entered, the TRO is of only minimal significance. For resolution of the issues at bar, it is not necessary to address either the facts as found in the TRO or whether or not the TRO was dissolved.

    
    

20. The prohibitions contained in the July 9, 1982 Order of Preliminary Injunction, as set out in Finding of Fact 5, supra, remain in full force and effect as a result of the per curiam appellate decision thereon in Franklin Capital Corp. v. State of Florida, supra. The special concurring opinion therein is relevant:

    
    

    Appellants were charged with violations of the statutory registration requirements, fraudulent business practices and false and misleading advertising. Appellants' business involved the investment of money, by private individuals, in a common enterprise on the expectation of profits derived from the efforts of the promoters. In my view these activities fit within the classic definition of an investment contract . . . Just as clearly, an investment contract is a security under Section 517.021(15), Florida Statutes, (1981). Hence, in my view, the business activities of appellants fall within the purview of Chapter 517 and, since none of the statutory exemptions apply, appellants are subject to prosecution of violations of the act.

    
    

21. Petitioner has not demonstrated that the July 9, 1982 Order of Preliminary Injunction has ever been dissolved or set aside. The law of that case is that Petitioner was subject to prosecution in connection with Chapter 517, Florida Statutes violations. The evidence of reform, good character, and current trustworthiness presented at formal hearing in this licensure proceeding fell short of establishing Mr. Seligman's current worthiness to conduct similar business activity. Petitioner has therefore failed to bear his burden to overcome the prima facie case against his unworthiness to be certified as an associated person.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the Comptroller enter a final order denying Petitioner's application for a certificate as an associated person.

DONE and RECOMMENDED this 28th day of July, 1988, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4623

The following constitutes specific rulings upon Petitioner's Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes.

Petitioner's PFOF

1-5 Accepted, although it is noted none have the mandatory references to exhibits or transcript citations and some are not adopted as either not FOF or because they are subordinate and" unnecessary.

6 Accepted in FOF 3.

7-10 Accepted in FOF 10.

11-13 Except as not supported by the record or as a mere characterization of counsel, covered in FOF 4-5.

14 Accepted in FOF 9.

15-16 Except as conclusions of law contained therein, accepted in FOF 9.

17-18 Accepted in FOF 11.

19-21 Rejected as not PFOF but PCOL. See COL.

1-3 Are deemed to be proposed decretal paragraphs and as such require no ruling as would a PFOF.

Respondent's PFOF 1-4 Accepted.

5-9 Rejected as not representative either of the exhibits,

the testimony, or the state of the law re TROs or the burden of proof in the instant case. See FOF 3, COL.

10-11 Accepted in FOF 4.

12-13 Accepted in FOF 5.

14-16 Accepted in FOF 6-7.

1. Accepted in FOF 8.

2. Accepted in FOF 9.

1. Except as subordinate and unnecessary, accepted in FOF 12.

   COPIES FURNISHED:

   
   

   Gerald Lewis, Comptroller Department of Banking and Finance The Capitol

   Tallahassee, FL 32399-0810

   
   

   Kenneth S. Sandler, Esquire 4700 B Sheridan Street Hollywood, FL 33021

   
   

   Charles E Scarlett, Esquire Office of the Comptroller Department of Banking and Finance The Capitol

   Tallahassee, FL 32399-0350

   
   

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

   AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

   DIVISION OF SECURITIES AND INVESTOR PROTECTION

   
   

   
   

   HAROLD SELIGMAN,

   
   

   Petitioner,

   DOAH Case No.: 87-4623

   vs. Administrative Proceeding

   No.: 768-S-9/87

   OFFICE OF COMPTROLLER,

   
   

   Respondent.

   /

   
   

   FINDINGS OF FACT, CONCLUSIONS OF LAW

   AND FINAL ORDER

   
   

   The STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE, DIVISION OF

   SECURITIES AND INVESTOR PROTECTION (hereinafter "Department"), authorized and directed to administer the provisions of Chapter 517, Florida Statutes, the Florida Securities and Investor Protection Act after due consideration of the subject matter hereof, hereby DENIES the application of Petitioner HAROLD SELIGMAN ("Seligman") to be registered as an associated person in the State of Florida. The grounds for the issuance of this FINAL ORDER are as follows:

   FINDINGS OF FACT

   
   

   1. The Department received an application for registration from Seligman on June 23, 1987. By letter dated September 17, 1987, the Department denied the application of Seligman to be an associated person of Huberman, Margaretten and Straus, Inc., a registered broker-dealer.

      
      

   2. Kenneth Sandler, Esquire, Hollywood, Florida, petitioned on behalf of Seligman for a formal administrative hearing which was subsequently held on April 27, 1988. Following the hearing, both parties submitted proposed orders to the Hearing Officer for her review and consideration. On July 28, 1988, the Hearing Officer issued her Recommended Order to the Department containing her recommended findings and fact and conclusions of law and recommended that the application of Seligman be denied.

      
      

   3. The Department hereby adopts in this Order those findings of fact as contained in the Hearing Officer's Recommended Order dated July 28, 1988.

      
      

      CONCLUSIONS OF LAW

      
      

   4. In the Recommended Order dated July 28, 1988, the Hearing Officer concluded as a matter of law that both the March 30, 1982 Temporary Restraining Order and the July 9, 1982 Order of Preliminary Injunction, both entered against Seligman constituted prima facie evidence of untrustworthiness pursuant to Rule 3E-600.011, Florida Administrative Code. The Hearing Officer further concluded as a matter of law that the Petitioner failed to bear his burden in overcoming the prima facie case against his unworthiness and as a consequence recommended that the Comptroller enter a final order denying Seligman's application as an associated person.

      
      

   5. The Department hereby adopts in this Order those conclusions of law contained in the Hearing Officer's Recommended Order dated July 28, 1988.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it is hereby ordered that he application of Seligman for registration as an associated person of Huberman, Margaretten and Straus, Inc., is hereby DENIED.

DONE AND ORDERED this 12th day of September, 1988.

GERALD LEWIS as Comptroller of the State of Florida and Head of the Department of Banking and Finance

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 governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one (1) copy of a Notice of Appeal with the Clerk, Department of Banking and Finance, The Capitol, Legal Section, Tallahassee, Florida 32399-0350 and a second copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First District, Martin Luther King Jr. Boulevard at Pensacola and West Jefferson Streets, Tallahassee, Florida 32301 or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed.

Copies furnished to:

Don Saxon, Director Division of Securities

Charles E. Scarlett Assistant General Counsel

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies of the foregoing have been furnished by U.S. Mail to: Kenneth S. Sandler, Esquire, Attorney for Petitioner, 4700 B Sheridan Street, Hollywood, Florida 33021; Harold Seligman, Petitioner, C/O Huberman, Margaretten and Straus, 1380 Miami Gardens Dr. Suite 245, North Miami Beach, Florida 33179; and to Harold Seligman, Petitioner, 18151 N.E. 31st Court, #1401, N. Miami Beach, Florida 33160, this 12th day of September, 1988.

CHARLES E. SCARLETT

Assistant General Counsel Office of the Comptroller

Department of Banking and Finance Legal Section, The Capitol Tallahassee, Florida 32399

(904) 488-9896

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

HAROLD SELIGMAN, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARSING AND

Appellant, DISPOSITION THEREOF IF FILED.

v. CASE NO.: 88-2617

DOAH CASE NO.: 87-4623

OFFICE OF COMPTROLLER,

Appellee.

/ Opinion filed February 13, 1990.

An Appeal from an order of the Department of Banking and Finance, Division of Securities and Investor Protection.

Guy J. Seligman, Fort Lauderdale, for Appellant.

Stephen M. Christian, Assistant General Counsel, Office of Comptroller, Tampa, for Appellee.

PER CURIAM.

This is an appeal from a final administrative order denying an application for registration as an associated person of a securities firm. Denial was based upon the existence of a circuit court injunction, which under Rule 3E- 600.011(2), Florida Administrative Code, constitutes prima facie evidence of unworthiness for registration. We affirm.

In March 1982, appellant and his company, Franklin Capital Corp., were prohibited by a temporary injunction entered by the Circuit Court, Seventeenth judicial Circuit, Broward County, from (among other things) selling unregistered securities, selling securities through a person not registered with the State, obtaining money by means of untrue statements of material fact, and acting as a mortgage broker. In July 1982, a stipulation of preliminary injunction was entered into by appellant, his company and the appellee prohibiting appellant from selling unregistered securities, selling securities through a person not registered with the State, violating the provisions of section 517.301 or any other provision of Chapter 517, F.S., in connection with the sale or purchase of securities, and from engaging in any course of business relating to mortgage transactions in violation of section 494.093, or any other provision of Chapter 494, F.S. The stipulation was approved and incorporated by reference into an Order of Preliminary Injunction. Appellant and Franklin Capital Corp. moved to dissolve the injunction for lack of subject matter jurisdiction; the denial of the motion was affirmed. Nelson v. State ex rel Lewis, 441 So.2d 659 (Fla. 4th DCA 1983). There being no indication in the record that the injunction has been dissolved, we find there is competent and substantial evidence to support the finding of unworthiness for registration.

Appellant requests this court to consider the validity of Rule 3E- 600.011(2), but he does not argue that the Department of Banking and Finance exceeded its legislative authority in promulgating this rule, or that the rule is arbitrary and capricious; in fact, appellant makes no substantive argument whatsoever. Because appellant fails to argue with any specificity how Rule 3E- 600.011(2) is unconstitutional or otherwise deficient, we refuse to consider the issue.

Appellant also argues on appeal that the hearing officer erroneously failed to consider a rule challenge. It is not clear from the record that appellant sought a rule challenge under Chapter 120, nor is it evident when appellant's challenge was filed. More importantly, there is no indication in the record that appellant's rule challenge was ever disposed of by a final order. There being no showing that a rule challenge was ever presented below, we find nothing has been presented for review by this court.

AFFIRMED.

SMITH, THOMPSON and MINER, JJ., CONCUR.

Docket for Case No: 87-004623

Orders for Case No: 87-004623