STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEN C. RICHARDSON, )

)

Petitioner, )

vs. ) CASE NO. 92-6158

) DEPARTMENT OF BANKING AND FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on December 4, 1992, in Melbourne, Florida.

APPEARANCES

For Petitioner: Len C. Richardson, pro se

60 Crystal River Drive Cocoa Beach, Florida 32931

For Respondent: J. Ashley Peacock

Assistant General Counsel Office of the Comptroller

Department of Banking and Finance Suite 1302, The Capitol Tallahassee, Florida 32399-0350

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner is entitled to registration as an associated person of First American National Securities, Inc. (FANS).

PRELIMINARY STATEMENT

This case began on June 26, 1992, when the Office of Comptroller, Department of Banking and Finance (Department) issued a letter to Petitioner advising him that his application for registration as an associated person had been denied. The notice advised Petitioner that the basis for the denial was Section 517.161(1)(j), Florida Statutes, and was predicated on Petitioner's criminal record. More specifically, the notice alleged that Petitioner pled guilty in Brevard County, Florida in 1989, to a criminal charge of misdemeanor retail theft. Further, the notice acknowledged that adjudication was withheld after the plea was entered.

Petitioner requested a formal hearing by filing a petition with the Department on September 24, 1992. On October 9, 1992, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing, Petitioner appeared and testified in his own behalf. The Department presented the testimony of Tamara Cain, the assistant director for the Division of Securities and Investor Protection. The Department's exhibits numbered 1, 2, and 3 were admitted into evidence.

A transcript of the proceedings has not been filed. Both parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. Petitioner, Len C. Richardson, filed an application for registration as an associated person of First American National Securities, Inc.

   
   

2. The Department is the appropriate state agency charged with the responsibility of reviewing applications such as the one at issue in this case.

   
   

3. On August 14, 1989, the Petitioner pled guilty to a criminal charge of retail theft. Upon entry of the plea, which was accepted, adjudication of guilt was withheld and the Petitioner was released. According to court records, the Petitioner was sentenced to one day but given credit for one day served. Further, the Petitioner was directed to pay, by September 1, 1989, the sum of

   $85.50 as court costs and various fees.

   
   

4. The criminal record described in paragraph 3 was the basis for Petitioner's application denial as outlined in a letter dated June 26, 1992, from Don B. Saxon, Director of Securities, to Petitioner.

   
   

5. Prior to the denial letter, the Department had advised Petitioner that his application might be approved provided restrictions could be imposed by agreement to the registration. The terms of such restrictions were set forth in a registration agreement tendered to Petitioner on or about April 10, 1992.

   
   

6. The Department also advised Petitioner that if the registration agreement was not returned, completely executed, within fifteen days, that a denial would be issued.

   
   

7. For reasons unknown, the parties were unable to resolve issues related to the registration agreement, and the Department issued the denial as noted above.

   
   

8. According to Ms. Cain, in order to assure the terms of the agreement could be met, the Petitioner would have to work out of a registered branch office and receive strict supervision from a person physically present at the branch who is registered as a principal.

   
   

9. At the hearing, Petitioner did not deny the acts which gave rise to his criminal charge and plea. Rather, he likened his conduct to writing a bad check. No credible explanation was offered for the conduct save his assertion that the plea of guilty was a matter of convenience.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. Section 517.161(1), Florida Statutes, provides, in pertinent part:

    
    

    1. Registration under s. 517.12 may be denied or any registration granted may be revoked, restricted, or suspended by the department if the department determines that such applicant or registrant:

       * * *

       (j) Has been convicted of, or has entered a plea of guilty or nolo contendere to, a crime against the laws of this state or any other state or of the United States which relates to registration as a dealer, investment adviser, issuer of securities, associated person, or branch office; which relates to the application for such registration; or which involves moral turpitude or fraudulent or dishonest dealing;

       
       

12. The Petitioner bears the burden of proof in these proceedings to establish that he is entitled to the registration sought. Petitioner offered no third party testimony in support of his application. Petitioner's own testimony provided no explanation for the criminal act for which he pled guilty. Petitioner's assertion that his plea was no worse than writing a bad check has not been deemed persuasive or credible.

    
    

13. Retail theft is a crime involving dishonest dealing. To protect the public, the Department is entitled to place restrictions on individuals who seek registration who have committed such offenses. At the minimum, Petitioner must be governed by a registration agreement which would afford strict supervision of his dealings.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Office of Comptroller, Department of Banking and Finance enter a final order granting Petitioner's application for registration as an associated person of FANS with restrictions and conditions set forth in a registration agreement to be executed by all parties.

DONE AND RECOMMENDED this 25th day of January, 1993, 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 25th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6158

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1 through 8 are rejected as argumentative, irrelevant, or not supported by the weight of credible evidence.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

The Respondent submitted an amended proposed order on January 11, 1993.

The findings of fact in that document are addressed.

1. Paragraphs 1, 2, 4a, 4b, 5 and 6 are accepted.

   
   

2. Paragraph 3 is rejected as outside the scope of the record presented.

COPIES FURNISHED:

J. Ashley Peacock Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

Len C. Richardson

60 Crystal River Drive Cocoa Beach, Florida 32931

Honorable Gerald Lewis Comptroller, State of Florida Department of Banking & Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350

William G. Reeves, General Counsel Department of Banking & Finance The Capitol, Plaza Level 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.

Docket for Case No: 92-006158

Orders for Case No: 92-006158