STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

In the matter of: )

)

Application for Authority to )

Acquire Control of Westchester ) CASE NO. 92-3394 Bank, Miami, Florida by )

Guillermo Fierro, )

)

)

REPORT OF PUBLIC HEARING

Pursuant to Section 120.60(5)(d), Florida Statutes, a public hearing was conducted by Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 23, 1992, in Miami, Florida.

APPEARANCES

For Guillermo Fierro:

Elena Mola, Esquire McDermott, Will & Emery Suite 500

1850 K Street, Northwest Washington, D.C. 20006-2296

For the Department of Banking and Finance:

Albert T. Gimbel Chief Banking Counsel Anthony F. DiMarco

Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol

Tallahassee, Florida 32399-0350 For Westchester Bank:

Michael J. Coniglio, Esquire

104 East Third Avenue Tallahassee, Florida 32303

For the Stockholders of Westchester Bank:

Robert Livingston, Esquire Anderson, Livingston, Kubit &

Mase

150 Southeast 2d Avenue, Suite 300 Miami, Florida 33131

PRELIMINARY STATEMENT

On September 12, 1991, the Department of Banking and Finance, Division of Banking (hereinafter referred to as the "Department"), received an application seeking approval of a proposal to acquire control of Westchester Bank (hereinafter referred to as the "Application"), pursuant to Section 658.28, Florida Statutes. The Application was filed by Guillermo Fierro, a foreign national. The Department published receipt of the Application in the Florida Administrative Weekly pursuant to Section 120.60(5)(a), Florida Statutes.

On June 4, 1992, the Department, after the completion of its investigation of the Application and Mr. Fierro to determine whether Mr. Fierro was qualified by reputation, character, experience and financial responsibility to own and operate a bank in the State of Florida, filed a Petition for Public Hearing with the Division of Administrative Hearings. Pursuant to the Petition, the Department requested that a Hearing Officer be appointed to conduct a public hearing in this matter as required by Section 120.60(5)(d), Florida Statutes.

The Department also filed a copy of the public portion of the Application.

Subsequent to the referral of this matter to the Division of Administrative Hearings, the matter was assigned to the undersigned to conduct a public hearing pursuant to Section 120.60(5)(d), Florida Statutes, and to issue a Report consistent with Section 120.57(b)(13), Florida Statutes. Toward this end a Second Notice of Hearing rescheduling the public hearing for July 23, 1992, in Miami, Florida, was entered by the undersigned after input from the parties.

Counsel for Mr. Fierro was also notified of the date of the public hearing by telephone to give the applicant an opportunity to provide notice of the public hearing as required by Section 120.60(5)(d), Florida Statutes, and Rule 3C- 9.005, Florida Administrative Code.

The public hearing convened as noticed on July 23, 1992. No member of the public appeared at the public hearing or otherwise informed the undersigned of a desire to be heard on this matter.

Mr. Fierro was present at the public hearing. Mr. Fierro indicated his readiness to present a prima facie case to support approval of the Application. The undersigned explained that the primary purpose of the public hearing was to allow members of the public to be heard and not to require that the applicant prove entitlement to approval of an application. Mr. Fierro was allowed to present a brief case, however.

Mr. Fierro presented the testimony of Robert Londono, Javier Aguirre and Amadeo Lopez-Castro. Mr. Fierro also testified on his own behalf. The applicant presented one exhibit. It was marked as Applicant's #1 and was accepted without objection into evidence.

The Department did not call any witnesses. The Department offered two exhibits. Both exhibits were accepted without objection into evidence.

Department exhibit 2 is subject to a Protective Order entered July 3, 1992.

All who participated in the public hearing were given an opportunity to file a proposed report of the public hearing. On July 30, 1992, counsel for Westchester Bank filed a proposed Report of Public Hearing. Mr. Coniglio represented that a draft of the proposed report had been provided to counsel for the Department and that the Department had proposed changes to the proposed report. Mr. Coniglio also represented that the Department's proposed changes had been incorporated into the proposed report.

The proposed report contains proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Report of Public Hearing or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

A transcript of the public hearing has been filed.

FINDINGS OF FACT

1. Procedural Requirements.

   
   

   1. Guillermo Fierro filed an application to acquire control of Westchester Bank, Miami, Florida with the Department in September, 1991.

      
      

   2. Westchester Bank is a state-chartered commercial banking institution located in Miami, Dade County, Florida. It is insured by the Federal Deposit Insurance Corporation.

      
      

   3. Mr. Fierro is not a citizen of the United State of America. Mr. Fierro is proposed to acquire one hundred percent of the outstanding stock of Westchester Bank.

      
      

   4. The Department published receipt of the Application in the Florida Administrative Weekly pursuant to Section 120.60(5)(a), Florida Statutes.

      
      

   5. The matter was referred to the Division of Administrative Hearings to conduct a public hearing as required by Section 120.60(5)(d), Florida Statutes, on June 4, 1992.

      
      

   6. Mr. Fierro caused notice of a public hearing to be published in The Miami Herald on July 5, 1992. The notice complied with the requirements of Rule 3C-9.005, Florida Administrative Code.

      
      

   7. No member of the public appeared at the public hearing, which was conducted on July 23, 1992.

      
      

2. The Applicant.

   
   

   1. Testimony concerning Mr. Fierro's reputation, character, experience, and financial responsibility to operate a bank in a legal and proper manner was received during the public hearing.

      
      

   2. Mr. Fierro's application for the acquisition of control of Westchester Bank, including biographical and financial reports filed with the Application, was true and correct at the time of the public hearing.

      
      

   3. An application concerning the acquisition for control of Westchester Bank filed by Mr. Fierro with the Federal Deposit Insurance Corporation was approved in November, 1991.

      
      

   4. Mr. Fierro has not been convicted of, nor has he pled guilty or no contest to, any violation of Section 655.50 or Chapter 896, Florida Statutes, or any federal or state law similar to these provisions of Florida law.

   5. Mr. Fierro was educated in economics at the Universidad Complutense, Madrid, Spain, economics and business administration at Pan American University in Texas and at the Wharton School of Business at the University of Pennsylvania.

      
      

   6. Mr. Fierro has more than six years of experience in banking and in business generally. Mr. Fierro is: (1) a co-owner and chairman of the Financiera Economica, S.A., a financial investment and advisory service in Madrid; (2) owner and vice chairman of International Finance Banking Corporation, an Article XII company under New York state banking regulations; and (3) active with his father in overseeing and directing substantial investments in Spain, Latin America and the United States in commercial banking and industrial enterprises.

      
      

   7. Mr. Fierro intends to operate Westchester Bank in a manner that will benefit the interest of the general public and the depositors and creditors of Westchester Bank.

      
      

   8. No immediate changes in the management of Westchester Bank (other than those set out in the Application) are planned by Mr. Fierro.

      
      

   9. No evidence was presented during the public hearing which indicates that Mr. Fierro does not otherwise possess the character, experience and financial responsibility to control and manage the affairs of Westchester Bank in a legal and proper manner or that the interests of the depositors and creditors of Westchester Bank or the public will be jeopardized by Mr. Fierro's proposed acquisition.

      
      

3. New Directors of Westchester Bank.

   
   

   1. Mr. Fierro, upon acquiring Westchester Bank, intends that Robert Londono and Javier Aguirre will continue to serve on the Board of Directors of the bank. Both Mr. Londono and Mr. Aguirre filed biographical reports with the Application. Those biographical reports were true and correct (other than an address change for Mr. Londono) as of the date of the public hearing.

      
      

   2. Neither Mr. Londono nor Mr. Aguirre have been convicted of, nor have they pled guilty or no contest to, any violation of Section 655.50 or Chapter 896, Florida Statutes, or any federal or state law similar to these provisions of Florida law.

      
      

   3. Mr. Londono received a degree in Latin American Studies from the University of Colorado and a graduate degree in international management from Thunderbird Graduate School of International Management.

      
      

   4. Mr. Aguirre studied economics at Universidad Autonoma in Madrid, Spain. He also attended New York University for almost two years, studying international business and finance.

      
      

   5. Mr. Londono worked for Chemical Bank of New York for approximately twenty-one years, rising to the position of managing director. Mr. Londono has worked with Mr. Fierro since 1991, providing advice concerning the acquisition of Westchester Bank.

      
      

   6. Mr. Aguirre worked for one of the major banks in Spain until he came to the United States where he has continued to work in international banking.

      In March, 1990, Mr. Aguirre became president of International Finance Banking Corporation, Mr. Fierro's business.

      
      

   7. Mr. Londono and Mr. Aguirre both believe that Mr. Fierro will operate Westchester Bank in a manner that will benefit the interest of the general public and the depositors and creditors of Westchester Bank.

      
      

4. Westchester Bank.

1. Amadeo Lopez-Castro, Jr., is the president and chief executive officer of Westchester Bank. He has been associated with the bank since it was created in 1983.

   
   

2. Westchester Bank investigated Mr. Fierro prior to agreeing to sell the bank to Mr. Fierro. Mr. Lopez-Castro indicated that the investigation resulted in no adverse information concerning Mr. Fierro and, in fact, the investigation was favorable to Mr. Fierro.

   
   

3. Westchester Bank received a satisfactory classification at the conclusion of its most recent examination concerning its compliance with consumer regulations and the Community Reinvestment Act.

   
   

4. Westchester Bank has never been under any regulatory or supervisory constraints for noncompliance with regulatory requirements.

   
   

5. The stockholders of Westchester have agreed to sell one hundred percent of the stock of Westchester Bank to Mr. Fierro.

DONE and ENTERED this 31st day of July, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

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 31st day of July, 1992.

APPENDIX TO RECOMMENDED ORDER

A proposed report has been submitted which contains proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in this Report where they have been accepted, if any.

Proposed Finding Paragraph Number in Order

of Fact Number of Acceptance or Reason for Rejection

1 1.

2 3.

3 2.

Elena Mola, Esquire McDermott, Will & Emery Suite 500

1850 K Street, Northwest Washington, D.C. 20006-2296

Albert T. Gimbel Chief Banking Counsel Anthony F. DiMarco

Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol

Tallahassee, Florida 32399-0350

Michael J. Coniglio, Esquire

104 East Third Avenue Tallahassee, Florida 32303

Robert Livingston, Esquire Anderson, Livingston, Kubit & Mase

150 Southeast 2d Avenue, Suite 300 Miami, Florida 33131

Honorable Gerald Lewis Comptroller, State of Florida Department of Banking &

Finance

The Capitol, Plaza Level Tallahassee, Florida 32399-0350

William G. Reeves Department of Banking &

Finance General Counsel Room 1302

The Captiol

Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF BANKING AND FINANCE

DIVISION OF BANKING

IN RE:

Application for Acquisition of

Control of Westchester Bank, DOAH CASE NO.: 92-3394 Miami, Dade County, Florida, by Administrative Proceeding Guillermo Fierro (Applicant) Number: 3014-B

/

FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER

After having considered the facts and information contained in the application to acquire Westchester Bank (Bank) by Guillermo Fierro, the Report of Public Hearing issued by Hearing Officer Larry J. Sartin, dated July 31, 1992, and the record of those proceedings with exhibits, the Comptroller of the State of Florida as head of the Department of Banking and Finance, (hereinafter "Department"), hereby renders this Final Order.

FINDINGS OF FACT

1. The findings of fact set forth in the Report of Public Hearing, dated July 31, 1992, issued by Hearing Officer Larry J. Sartin, is attached as Exhibit "A" and incorporated herein by reference.

   
   

2. The Department makes the following additional findings of fact:

1. The current Board of Directors and Senior Officers of the Bank will remain intact. Robert Londono, a current Director of the Bank has also been proposed as a Senior Officer of the Bank. Javier Aguirre has been proposed as a Director of the Bank.

   
   

2. Acquisition will be accomplished through the purchase of 130,000 shares of stock (100% of the issued and outstanding shares of Bank) for cash in the amount of approximately $50.00 per share for a total purchase price of

   $6,500,000. Applicant will then own over 25 percent of the outstanding shares of stock in the Bank.

   
   

3. The Financial Investigations Unit conducted an Investigation of the Applicant, Robert Londono, and Javier Aguirre.

   
   

4. Applicant filed the Application to Acquire Control of Westchester Bank with the Department on September 12, 1991.

5. The Federal Deposit Insurance Corporation approved the Notice of Change in Bank Control Application on November 29, 1991.

CONCLUSIONS OF LAW

1. The statutory criteria set forth in Chapter 658, Florida Statutes, are the standards which govern this application. When an application for authority to purchase or acquire a controlling interest in any state bank or trust company is filed, it is the applicant's responsibility to demonstrate that the statutory and regulatory criteria which warrant the granting of authority are met. It is the duty of the Department to make an evaluation of the factors listed therein and then to approve or disapprove the application. Furthermore, the purpose of the public hearing is to allow members of the public to be heard concerning the applicant and the purchase of the state-chartered bank.

   
   

2. Section 658.28, Florida Statutes, provides that the Department shall issue a certificate of approval only after it has made an investigation and determined that: (1) the proposed new owner or owners are qualified by reputation, character, experience, and financial responsibility to control the bank or trust company in a legal and proper manner; and (2) the interests of the other stockholders, if any, and the depositors, and creditors of the bank or trust company and the interests of the public generally will not be jeopardized by the proposed change in ownership, controlling interest, or management.

   
   

   FINAL ORDER

   
   

3. Based upon the foregoing Record, Findings of Fact, and Conclusions of Law, it is hereby ORDERED that the application referenced herein be APPROVED, subject to the following conditions:

1. That notice be provided to the Division of Banking when transfer of the shares is accomplished.

   
   

2. That any substantial change in the structure of ownership from that proposed in the application must be reported to the Department to determine continued compliance with Section 658.28, Florida Statutes.

   
   

3. This Order shall constitute the Certificate of Approval of the Comptroller authorizing the proposed change in control. This certification shall expire six months from today, unless in the meantime a request for an extension of time has been granted by the Department.

   
   

4. Until the acquisition has been completed, or if any interim development is deemed by the Comptroller to warrant such action, the Comptroller shall have the right to alter, suspend, or withdraw this approval.

5. In taking this action, the Department has relied on the representations and commitments made by the Applicant in the application. Every effort should be made to meet these representations and commitments.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of August, 1992.

GERALD LEWIS, Comptroller and Head of the Department of Banking and Finance, Division of Banking

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 first with the agency clerk of the Division of Administrative Hearings 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 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.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Findings of Fact, Conclusions of Law, Final Order and Notice of Rights has been docketed with the Clerk of the Department and served by U.S. Mail, to Elena Mola, Esq., McDermott, Will & Emery, 1850 K Street, N.W. Suite 500, Washington, D.C. 20006, this 12th day of August 1992.

Anthony F. DiMarco, Esq. Assistant General Counsel Office of Comptroller

The Capitol, Suite 1302 Tallahassee, Florida 32399-0350

(904) 488-9896

COPIES FURNISHED:

Elena C. Mola, Esq. McDermott, Will & Emery

1850 K Street, N.W., Suite 500

Washington, D.C. 20006

Board of Directors, Westchester Bank

Federal Deposit Insurance Corporation, Atlanta, Bureau of Financial Institutions - District 11 Bureau of Research, Planning and Staff Development Clerk, Division of Banking

Docket for Case No: 92-003394

Orders for Case No: 92-003394