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AGENCY FINAL ORDER

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STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DIVISION OF FINANCE

DEPARTMENT OF BANKING AND FINANCE, DIVISION OF FINANCE,

Respondent,

Administrative Proceeding

vs. No. 1383-F-5/89

EBBA DAMPIER; JASPER MASK; DOAH Case No. 90-1015 RAYMOND BEATY; PHILLIP AND

MARY CROWDER, TRUSTEE FOR JAMES CROWDER; PHILLIP AND MARY CROWDER; TRUSTEE FOR DEBORAH CROWDER; CECIL D. AND DIANE M. YOUMANS; GLENN E. AND ALICE L. HUNT; OBE D.

AND VIRGINIA K. COLEMAN; BARBARA SPENCER; NANCY SCRIVENER AND ANN AND ROBERT VINSANT,

Petitioners.

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FINAL ORDER AND NOTICE OF RIGHTS

This matter has come before the undersigned as head of the Department of Banking and Finance (hereinafter the "Department") for the entry of a Final Order in the above referenced proceeding. On May 20, 1992, a Hearing Officer from the Division of Administrative Hearings submitted her Recommended Order in this proceeding, a copy of which is attached hereto as Exhibit A. On May 26, 1992, Petitioner Ebba Dampier filed her exceptions to the Recommended Order, a copy of which is attached hereto as Exhibit B. No response to the exceptions filed by Petitioner Dampier has been filed by any of the parties to this proceeding.

This matter arose when the First District Court of Appeal entered an opinion January 31, 1992, rehearing denied February 26, 1992, remanding this case to the Department with directions that it in turn remand to the Hearing Officer, for further proceedings. A copy of the opinion is attached as Exhibit

C. An expedited hearing was set for consideration of the case on remand and a formal hearing was held in Tallahassee, Florida on May 7, 1992 before Diane Cleavinger, a duly appointed Hearing Officer for the Division of Administrative Hearings. The Hearing Officer's order recommends that the Department distribute the monies available from the Mortgage Brokerage Guarantee Fund, Section 494.042, Florida Statutes (hereinafter the "Fund") in a manner consistent with the stipulated findings of fact that Ebba Dampier failed to file a proof of claim in bankruptcy.

RULING ON EXCEPTIONS FILED BY DAMPIER

First Exception: Petitioner Ebba Dampier's first exception to the Hearing Officer's Recommended Order is that the order incorrectly found that Dampier's Motion for Rehearing filed in the appellate court was based on the adoption by the Legislature of Chapter 91-245 Laws of Florida. The Department concurs with the Hearing Officer's preliminary statement and Dampier's first exception is rejected. Second Exception: Petitioner Dampier's second exception to the Hearing Officer's recommended order is that paragraph 1 of the findings of fact contains an erroneous conclusion of law. It is the hearing officer's, not the Department's or the Petitioner's, function to evaluate the evidence in reaching the ultimate findings of fact. Heifetz v. Department of Business Regulations,

475 So. 2d 1277 (Fla. 1st DCA 1985). Since there is competent, substantial evidence with which the Hearing Officer reached his Finding of Fact, the Department concurs with the Finding of Fact and the Petitioner's second exception is rejected.

Nevertheless, should this be considered a Conclusion of Law, this Conclusion of Law is based upon competent and substantial evidence presented at the rehearing. See Heifetz, supra. For this reason the Department concurs with the Hearing Officer's Finding of Fact and rejects the Petitioner's second exception.

To the extent paragraph 2 of the Recommended Order does contain a scrivener's error in the payment schedule this Finding of Fact is modified in accordance with the competent substantial evidence submitted at the hearing in this matter. Section 120.57(1)(a)10., Florida Statutes. Such payment schedule should be corrected to read as follows:

Third Exception: Petitioner Dampier's third exception is that paragraph 2 of the Findings of Fact should be deleted from the Order because it contains erroneous Conclusions of Law. As stated previously, it is the hearing officer's function to evaluate evidence in reaching findings of fact. See Heifetz, supra. Nevertheless, should this be considered a Conclusion of Law, it is based upon competent, substantial evidence presented at the hearing. See Heifetz, supra.

For this reason the Department concurs with the Hearing Officer's Findings of Fact and rejects the Petitioner's third exception.

Fourth Exception: Petitioner Dampier's fourth exception is that the second sentence of paragraph 1 under the conclusions of law is erroneous. The Department concurs with the Hearing Officer's conclusion and Petitioner Dampier's fourth exception is rejected.

Fifth Exception: Petitioner Dampier's fifth exception is that Hearing Officer incorrectly concluded as a matter of law that the argument presented by Dampier for entitlement to recovery is not a sound interpretation of applicable law. As stated previously, the Hearing Officer weighed the evidence and made these conclusions based upon competent, substantial evidence. See Heifetz, supra. For this reason, the Department concurs with the Hearing Officer's conclusion and rejects the Petitioner's fifth exception.

Sixth Exception: Petitioner Dampier's sixth exception to the Hearing Officer's Recommend Order is that paragraphs 4, 6, 7, 8, 9 and 10 should be omitted and paragraph 5 of the conclusions of law should be renumbered as paragraph 4. As stated previously, the Hearing Officer weighed the evidence and made these conclusions based upon competent, substantial evidence. See Heifetz, supra. For this reason, the Department concurs with the Hearing Officer's conclusion and rejects the Petitioner's sixth exception.

ORDER

Having ruled on all of the exceptions filed by the parties to the Recommended Order, it is ORDERED:

1. The Hearing Officer's findings of fact and conclusions of law are hereby adopted and incorporated herein, except to the effect of the modification of the scrivener's error contained in paragraph 2 of the Findings of Fact.

   
   

2. The Department concurs with the Hearing Officer's Recommended Order.

   
   

3. Petitioner's Mask, Beaty, et al., shall receive payments in the amount listed in the Hearing Officer's Recommended Order, except to the extent of the modification of the scrivener's error contained in paragraph 2 of the Hearing Officer's Findings of Fact. Petitioner Dampier and Anne and Robert Vinsant's

DONE and ORDERED this 23rd day of June, 1992, in Tallahassee, Florida.

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 SHALL BE ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE (1) A COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF BANKING AND FINANCE AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT OR WITH THE DISTRICT COURT OF APPEAL AND THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by

U. S. Regular Mail to Diane Cleavinger, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550, Robert P. Gaines, Esquire, Seventh Floor Blount Building, 3 West Garden Street, Pensacola, FL 32501, Tom R. Moore, Esquire, Post Office Box 13442, Tallahassee, FL 32317, James E. Alexander, Esquire, 323 Stanford Pointe, 2401 Stanford Road, Panama City, FL 32405, Robert Vinsant, 1 Pebble Beach Drive, Shallimar, FL 32579, Daniel C. Perri, Esquire, 5 Clifford Drive, Shalimar, 32579, this 24th day of June, 1992.

ANTHONY DIMARCO

Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, FL 32399-0350

Docket for Case No: 90-001015

Orders for Case No: 90-001015