STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM R. STUART, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3783

)

OFFICE OF COMPTROLLER, ) DEPARTMENT OF BANKING AND FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on September 12, 1989, in West Palm Beach, Florida, before Joyous D. Parrish, a Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Kenneth Stuart, C.L.U.

Qualified Representative

2247 Palm Beach Lakes Boulevard, Suite 101 Box 24608

West Palm Beach, Florida 33416-4608

For Respondent: Eric Mendelsohn

Assistant General Counsel Office of Comptroller

111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner's application for licensure should be granted.

PRELIMINARY STATEMENT

This case began on June 8, 1989, when the Office of the Comptroller, Division of Finance (Division) issued a notice informing Petitioner of the denial of his application for a home improvement sellers license. Thereafter, Petitioner timely filed a request for hearing and the matter was referred to the Division of Administrative Hearings for formal proceedings on July 17, 1989.

At the hearing, Kenneth Stuart, Petitioner's brother, was accepted as a qualified representative to act on Petitioner's behalf. The Petitioner testified in support of his application. The Division presented exhibits numbered 1-3 which were admitted without objection into evidence. No transcript of the proceedings was filed.

After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Petitioner's request to strike the propose recommended order of the Division is denied. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact:

1. On or about April 28, 1989, Petitioner, William R. Stuart, executed an application for a home improvement sellers license (application).

   
   

2. Among the questions posed on the application were the following:

   
   

3. Are there unpaid judgments

   against the applicant? If "yes," attach a copy of the complaint and judgment(s).

4. Has the applicant ever been

declared bankrupt or ever sought protection under any of the statutes dealing with bankruptcy? If "yes," attach a copy of the bankruptcy filing and any Orders entered.

1. Petitioner answered both questions identified by checking the space marked "no."

   
   

2. In May, 1987, Petitioner filed bankruptcy. Petitioner had used personal funds to support a family business and was not able to cover the obligations. At least two judgments have been entered against Petitioner. Those judgments (dating from August and September, 1987) may have been included in the bankruptcy proceeding.

   
   

3. Since the time of the bankruptcy, Petitioner has received financial support from family and from an inheritance. He has incurred debts related to a hospitalization but has worked out a payment plan.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

5. Section 520.66(3), Florida Statutes, provides, in part:

   
   

   1. In addition to the acts specified in subsection (1), the following are grounds for denial of a license under this part, or for revocation, suspension, or restriction of a license previously granted:

      1. A material misstatement of fact in an initial or renewal application for a license;

         * * *

         (d) Being insolvent or having a demonstrated lack of honesty or financial responsibility.

6. Section 120.60(2), Florida Statutes, provides, in pat:

   
   

   When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period.

   
   

7. Petitioner argues that the Division failed to timely request additional information regarding Petitioner's credit status and is, therefore, unable to cite the error or omission on the application as grounds for denial of the license. Such an argument presumes the Petitioner's answers were in error and that somehow the Division should have identified that error. Obviously, the Division discovered that the answers were incorrect but supplemental information would not have corrected the answers. Petitioner has attempted to explain the incorrect answers but has not contested the underlying information: that Petitioner had judgments against him, has filed bankruptcy, and failed to disclose that information on the application (which is directly contrary to the terms of the application).

   
   

8. Petitioner bears the burden of establishing he is entitled to licensure. He has not met that burden. That he may have worked out a payment plan to cover his current financial responsibilities does not excuse the misstatement on the application nor does it automatically absolve him of the history of financial irresponsibility.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Office of the Comptroller, Department of Banking and Finance, enter a final order denying the application for licensure filed by Petitioner.

DONE and ENTERED this 27th day of October, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3783 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT:

1. Paragraph 1 is accepted.

2. Paragraph 2 is rejected as hearsay or unsupported by the record in this cause.

3. Paragraph 3 is rejected as irrelevant.

4. Paragraphs 4 and 5 are accepted.

5. Paragraph 6 is rejected as irrelevant.

6. Paragraph 7 is accepted.

7. Paragraphs 8, 9 and 10 are accepted.

8. Paragraph 11 is rejected as irrelevant.

9. Paragraph 12 is rejected as contrary to the weight of credible evidence.

10. Paragraph 13 is accepted.

RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT:

1. Paragraphs 1 through 4 are accepted.

COPIES FURNISHED:

William R. Stuart

4371 Carambola Circle North Coconut Creek, Florida 33066

Kenneth Stuart

2247 Palm Beach Lakes Boulevard, Suite 101 Post Office Box 24608

West Palm Beach, Florida 33416-4608

Eric Mendelsohn

Assistant General Counsel Office of the Comptroller

111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401

Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0330

Charles L. Stutts General Counsel

Department of Banking and Finance The Capitol

Plaza Level, Room 1302 Tallahassee, Florida 32399-0330

Docket for Case No: 89-003783

Orders for Case No: 89-003783