vs. ) CASE NO. 95-5783
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on March 8, 1996, in Tampa, Florida.
For Petitioner: Robert L. McDonald, Jr., Esquire
For Respondent: Katherine C. Nuckolls, Esquire
The issue in this case is whether the Petitioner's application for license as a check casher under the provisions of Chapter 560, Florida Statutes, should be approved.
The Lazzara Family (Petitioner) applied for licensure as a check cashing service. The Department of Banking and Finance (Department) denied the application. The Petitioner requested a formal administrative hearing. The Department forwarded the request to the Division of Administrative Hearings which scheduled the proceeding.
At the hearing, the Petitioner presented the testimony of four witnesses and had exhibits 1-20 admitted into evidence. The Department presented the testimony of two witnesses and had exhibits 1-3 admitted into evidence. The prehearing stipulation filed by the parties was also admitted into evidence.
A transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
The Department of Banking and Finance is responsible for administration of Chapter 560, Florida Statutes, which in material part governs registration of check cashers in Florida.
Lazzara Family Check Cashing is a partnership between members of the Lazzara family.
By application dated December 20, 1994, the Petitioner seeks to register as a money transmitter and check casher pursuant to Chapter 560, Florida Statutes.
The application was received by the Department on December 30, 1994.
The application was signed by Joseph D. Lazzara, Sr., Joseph D. Lazzara, Jr., and John T. Lazzara, the three partners in Lazzara Family Check Cashing.
By plea agreement dated August 9, 1990, Joseph D. Lazzara, Sr., entered a plea of guilty to a felony, laundering of monetary instruments, 18 U.S.C. Sections 1956(a)(3)(B) and (C), in United States of America v. Joseph D. Lazzara, Sr., case number 90-3-Cr-T-15c, United States District Court, Middle District of Florida.
By plea agreement dated August 8, 1990, Joseph D. Lazzara, Jr. entered a plea of guilty to a felony, evading the reporting requirements of a monetary transaction, 31 U.S.C. Sections 5324(3), in United States of America v. Joseph
D. Lazzara, Sr., case number 90-3-Cr-T-15c, United States District Court, Middle District of Florida.
By plea agreement dated August 9, 1990, John Timothy Lazzara entered a plea of guilty to a felony, conspiracy to engage in racketeering activities, 18
U.S.C. Sections 1962(d), in United States of America v. Joseph D. Lazzara, Sr., case number 90-3-Cr-T-15c, United States District Court, Middle District of Florida.
By letter dated January 30, 1995 the Department requested additional information related to the application.
The application included biographical data related to Joseph D. Lazzara, Sr. The January 30 letter sought biographical information on Joseph D. Lazzara, Jr., and John T. Lazzara.
The application indicated in response to a question, that the applicant was or had been under investigation and referenced, but did not include, an addendum to the application. The January 30 letter sought the additional information related to the investigation.
The application included copies of Certificates of Restoration of Civil Rights for Joseph D. Lazzara, Sr., and Joseph D. Lazzara, Jr. The January
30 letter sought additional information regarding the status of civil rights for John T. Lazzara.
The January 30 letter also requested completion of an enclosed questionnaire related to the dollar volume of check cashing transactions being handled by the applicant.
In response to the Department's letter of January 30, the Petitioner submitted an unsigned biographical report for Joseph D. Lazzara, Jr., and a signed biographical report for John T. Lazzara. The Petitioner also submitted information related to the investigation. The Petitioner did not at that time provide additional information regarding the status of civil rights for John T. Lazzara.
By letter dated April 12, 1995 the Department again requested additional information related to the application.
The April 12 letter sought a signed biographical report of Joseph D. Lazzara, Jr. The letter also requested that the Petitioner "provide either proof that John T. Lazzara's civil rights have been restored or provide the current status of his civil rights." The Department also noted that a background investigation revealed a 1990 judgement against John T. Lazzara in excess of $4,500, and requested information regarding the current status of the judgement.
The April 12 letter noted that failure to provide the requested information within 30 days may be grounds for denial of the application.
In response to the Department's letter of April 12, the Petitioner submitted a signed biographical report of Joseph D. Lazzara, Jr.
The Petitioner also submitted an undated copy of John T. Lazzara's application for restoration of his civil rights."
A letter dated May 1, 1995 accompanied the copy of the civil rights application. In relevant part, the letter states:
....I am enclosing a copy of John T. Lazzara Sr. (sic) application to the State of Florida for Clemency restoration of civil rights. I am also hiring Reed Linehart of First Financial to try and resolve the 4500.00 judgement from Citicorp of South Dakota. I will also keep advised of the status of both matters. "
No further information regarding the application for restoration of civil rights or the judgement was submitted by the Petitioner.
By letter of June 13, 1995, the Department reiterated that its April
12 letter had provided 30 days for the applicant to respond to all previously requested information. The Department's letter stated that the May 1 letter indicated that further information would be forthcoming and noted that no additional information had been received.
The June 13 letter specifically states that in addition to all previously requested information, the Department wanted Joseph D. Lazzara, Sr., Joseph D. Lazzara, Jr. and John T. Lazzara to provide detailed explanations, in their own words, of the nature of their arrests and disposition of the cases which had been disclosed to the Department.
The June 13 letter stated that failure to respond to the request for information within fifteen days would result in the application being deemed abandoned and the file would be closed.
In response to the Department's request, each person filed a written statement detailing his conviction.
By letter of October 18, 1995, the Department notified the Petitioner that the application for registration was denied.
As grounds for the denial, the Department cited the "failure to timely supply this office with the additional information requested, and the guilty pleas entered in case number 90-3-Cr-T-15c in the United States District Court, Middle District of Florida, by Joseph Domenico Lazzara, Jr., John Timothy Lazzara, Sr., and Joseph D. Lazzara."
The evidence establishes that the applicant failed to provide the requested proof of the status of John T. Lazzara's civil rights.
The undated application submitted by the Petitioner fails to "provide either proof that John T. Lazzara's civil rights have been restored or provide the current status of his civil rights."
The evidence establishes that the applicant failed to provide information regarding the current status of a $4,500 judgement against John T. Lazzara.
The letter of May 1 states only that the Petitioner has hired an individual to attempt to resolve the judgement from Citicorp of South Dakota. The Petitioner did not provide information as to the nature of the judgement.
The Petitioner's letter of May 1 states that additional information regarding the application for restoration of civil rights and the pending judgement would be forthcoming. No further information was ever submitted by the Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has the burden of establishing by a preponderance of the evidence that it is entitled to the licensure sought. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977). Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.
The Petitioner asserts that the application must be approved by operation of Section 120.60(6), Florida Statutes, which in relevant part provides:
When an application for license is made as required by law, the agency shall conduct the proceedings with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Every
application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law....
The Petitioner cites no legal authority for the position that an incomplete application must be deemed approved within a 90 day period.
In this case, the Department advised on June 13 that failure to submit specific additional information within 15 days would result in the application being deemed abandoned and the file would be closed. The Petitioner failed to submit the specific additional information requested by the deadline. The Petitioners assert that no additional information was available, therefore none was submitted.
Neither the undated application for restoration of civil rights nor the accompanying letter provides information regarding the status of John T. Lazzara's application for civil rights restoration. It is not possible to determine from the materials filed by the Petitioner that the application had even been filed with the appropriate agency. Further, the information provided related to the Citicorp judgement is insufficient to establish the status of the judgement. There is no evidence that the Petitioner attempted to provide additional information, which the May 1 letter indicated would be forthcoming.
Based on the Petitioner's failure to provide the additional information, the Department could have properly deemed the application as withdrawn. Instead, the Department issued a formal letter identifying the specific reasons for denial and providing the Petitioner with a point of entry to challenge the proposed agency action.
As grounds for the denial, the Department cited to the failure to supply additional information and further cited the Petitioner's criminal convictions which, had the application been deemed complete, would have been sufficient in and of themselves to support the denial.
The "Money Transmitters' Code" is set forth at Chapter 560, Florida Statutes. One of the specific purposes of the code is to deter the use of money transmitters as vehicles for money laundering activities. Section 560.102(2)(d), Florida Statutes.
Part III of the code is the "Check Cashing and Foreign Currency Exchange Act." The act requires persons engaging in the business of cashing payment instruments to register with the Department of Banking and Finance.
Section 560.114, Florida Statutes, sets forth general grounds for disciplinary action against registrants and is applicable to the facts of this case. In relevant part, the section provides:
(2) ...the following acts are grounds for denial of registration...:
(c) Having been convicted of or found guilty of, or having pleaded guilty or nolo contendere to, a crime involving fraud or dishonest dealing.
Evasion of the reporting requirements for a monetary transaction is a crime involving fraud or dishonest dealing. The conviction of Joseph D. Lazzara, Jr., for evading the reporting requirements for a monetary transaction warrants denial of an application for registration as a check casher.
Section 560.306(1), Florida Statutes, provide as follows:
The department may deny registration if it finds that the applicant, or any money- transmitter affiliated party of the applicant, has been convicted of a felony involving moral turpitude in any jurisdiction or of a crime which, if committed in this state, would constitute a felony involving moral turpitude under the laws of this state. For the purposes of this part, a person shall be deemed to have been convicted of a crime if such person has either pleaded guilty to or been found guilty
of a charge before a court or federal magistrate, or by the verdict of a jury, irrespective of
the pronouncement of sentence or the suspension thereof. The department may take into considera- tion the fact that such plea of guilty, or such decision, judgement, or verdict, has been set aside, reversed, or otherwise abrogated by
lawful judicial process or that the person convicted of the crime received a pardon from the jurisdiction where the conviction was entered or received a certificate pursuant to any provision of law which removes the dis- ability under this part because of such conviction....
The laundering of monetary instruments is a crime of moral turpitude. The conviction of Joseph D. Lazzara, Sr. for laundering of monetary instruments warrants denial of an application for registration as a check casher.
Conspiracy to engage in racketeering activities is a crime of moral turpitude. The conviction of John Timothy Lazzara for conspiracy to engage in racketeering activities warrants denial of an application for registration as a check casher.
Based on the foregoing, it is hereby RECOMMENDED that the Department of Banking and Finance enter a Final Order denying the application for registration as a check casher of Lazzara Family Check Cashing.
DONE and ENTERED this 25th day of April, 1996 in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1996.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5783
To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.
The Petitioner filed two separate proposed recommended orders. In both proposed orders, the Petitioner's proposed findings of fact fail to comply with the requirements of Rule 60Q-2.031(3), Florida Administrative Code, which requires citations to the record of hearing. The proposed findings are rejected as not supported by the greater weight of the evidence except where they are consistent with the Findings of Fact set forth herein.
The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
2-3, 15. Rejected, subordinate.
Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Harry Hooper, General Counsel The Capitol, Room 1302 Tallahassee, Florida 32399-0350
Robert L. McDonald, Jr., Esquire 1311 North Church Street
Katherine C. Nuckolls, Esquire Department of Banking and Finance
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten 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.
