Findings Of Fact The Petitioner, Felix Roman Park, is a licensed securities dealer in other states, but at the time of the hearing in this cause was not licensed to sell securities in Florida. The Office of the Comptroller, Department of Banking and Finance, Division of Securities and Investor Protection (the Department) is authorized to enforce the provisions of Chapter 517, Florida Statutes, and related administrative rules designed in pertinent part to regulate entry into the practice of security transactions or sales in the State of Florida. On October 25, 1981, the governing body of the New York Stock Exchange entered a decision whereby the Petitioner was found to have violated exchange rules by exercising discretionary power over a customer's account without obtaining written authorization from that customer. This decision was pursuant to a consented settlement with the Petitioner. As a result of this finding by the exchange, Mr. Park was fined $2,000 and suspended for one month. On December 2, 1983, the Chicago Board of Trade issued a decision to deny his application for approval as a "Registered Commodity Representative." The Board of Trade's decision was based upon the following incidents or conclusions: That he took unnecessary and substantial financial risks which he knew or should have known would be detrimental to his creditors; That he performed improperly in handling customer accounts; That he failed to make adequate disclosures regarding his personal trading and transactions in particular disregard of a member firm; That he was suspended, fined and sanctioned by the New York Stock Exchange; and That his conduct in all the above matters was inconsistent with just and equitable principles of trade and constituted acts detrimental to the interest and welfare of the Chicago Board of Trade. It was established, however, that Mr. Park subsequently resubmitted an application to the Chicago Board of Trade which was approved on March 5, 1985, although with probationary status for one year. That probation has elapsed with no further such incidents occurring. By its letter of May 30, 1986, the Department notified Mr. Park that it was denying his application for registration as an associated person with A. G. Edwards & Co., Inc. as a result of these disciplinary actions by the two national exchanges. In response to the finding that Mr. Park took unnecessary and substantial financial risks to the detriment of his creditors, he admitted being deeply in debt as a result of somewhat rash investment decisions in the "bull market" in 1973 and 1974. He tried to pay his resultant debts, but was unable to with the result that he ultimately had his debts discharged through bankruptcy in 1978. In the course of the bankruptcy proceeding, however, Mr. Park and his wife voluntarily gave up over $100,000 equity in their Tulsa, Oklahoma, home to help pay creditors, even though that equity would have been protected under the bankruptcy laws. The Chicago Board of Trade Committee which disciplined Mr. Park in part was concerned about the large volume of his supposed debts, which was reflected in its determination that he was a financial risk to his creditors. A substantial portion of those supposed debts, however, represented contingent claims related to two law suits against Mr. Park and Dean Witter, his employing brokerage firm. Both of those law suits, however, were dismissed with no judgment against either Mr. Park or Dean Witter. There was no proof in either law suit to show that Mr. Park had engaged in any wrongdoing or any action which caused a financial risk to the plaintiffs in those law suits. Additionally, the Chicago Board of Trade, as its second reason for its disciplinary action against the Petitioner, found that he engaged in impropriety in handling of customer accounts. This charge was also related to the law suit in Veltman vs. Dean Witter Reynolds, Inc. and Felix R. Park, Jr. in the U.S. District Court for the Northern District of Oklahoma. This was one of the two law suits mentioned above which was settled with no judgment being entered against the Petitioner. It was shown by the Petitioner that no wrongdoing occurred with regard to the Veltman customer account and, although it was part of the New York Stock Exchange investigation, that he was not charged by the Exchange for violating any rules or committing any wrongdoing in connection with his handling of that account. Regarding the Chicago Board of Trade's so-called "conclusion 3" to the effect that the Petitioner failed to make adequate disclosures regarding his personal trading transactions, the Petitioner admits that he unwittingly violated a New York Stock Exchange rule relating to joint stock dealings with one Lester Paine, who is also a registered representative of Dean Witter and worked in the same office as Mr. Park. Mr. Park acknowledges he was not aware, as he should have been, of rules relating to undisclosed interests in a customer's account. The trading was open and visible and was related to a joint margin account maintained by Mr. Paine and Mr. Park and none of the trading was carried out covertly, rather, Mr. Park was co- managing a three-man "satellite office" with Mr. Paine and was simply engaging in joint trading efforts with him through this account because of Mr. Paine's creditworthiness. In any event, the events occurred approximately nine years ago, and the Petitioner has had an unblemished record as a securities dealer since that time. Concerning his suspension, fine and censure by the New York Stock Exchange which was also one of the bases for the disciplinary action by the Chicago Board of Trade the Petitioner agreed that he entered into a settlement of disciplinary charges with the New York Stock Exchange. He admitted violating the rule related to his trading in conjunction with Lester Paine and also agreed, in settlement of the charges, that he used discretion without proper written authorization of Customer Hubbard in trading for that customer's account. Because of the declining market and his choice of stock purchases, he ultimately lost $2,780.69 of Mrs. Hubbard's funds but, upon entering into the settlement with the New York Stock Exchange Authorities, he reimbursed that customer fully and agreed to a small fine and a short suspension. Mr. Park established that he believed himself to have adequate authority by that customer to trade on the customer's behalf in the stocks involved, which unfortunately had the result of losing the customer some money, but he maintains that he felt he had full authority by that customer to so trade. In any event, as a result of the settlement, sanctions were imposed by the New York Stock Exchange which must have been established to be minor in nature and, again, the occurrences relate to events happening in 1978. Mr. Park has been actively engaged in the securities business since that time and has been so engaged in Florida until the subject violations came to the attention of the Respondent, and has been involved in no questionable practices in his securities business whatever. Mr. Park admittedly made some mistakes, but also demonstrated that he had paid adequate penalties therefor. Additionally, he suffered the loss of his home and the embarrassment of a bankruptcy. Even so, he voluntarily surrendered $100,000 of equity in his home to his creditors when the law did not require him to do so because of his honorable intentions and efforts to settle his debts fairly insofar as he was able. He has already been rejected as a Registered Commodities Representative by the Chicago Board of Trade for the above reasons and then, since that time, has been fully reinstated. Some of the events to which the disciplinary actions related involved his financial difficulties which occurred back in 1974. Since that time, approximately 13 years, he has had a clean record financially and legally in his role as a securities salesman with the last regulatory problems occurring in 1978. His employing firms have valued him as an employee to the extent that, in 1984, his employer asked the Chicago Board of Trade to approve his registered commodity representative application in the face of the history related above. In short, Mr. Park has had a substantial period of time since the last occurrence, to which his prior certification sanctions related, to demonstrate that he is a trustworthy, knowledgeable and competent securities dealer. The events to which his Board of Trade and Stock Exchange disciplinary actions related were not shown to be other than as instances or results of bad judgment, inadvertence and, to some extent, personal financial catastrophe, which he acted voluntarily to alleviate insofar as possible. There has been no proof that he committed any act in the nature of moral turpitude or exhibited a course of dealing from which it might be concluded that he is clothed with bad character or a propensity to engage in deceitful, dishonest trading practices or financial dealing with his customers, with his employers or colleagues or with the National Securities Exchanges with which he is authorized to do business. In short, he has established that he is sufficiently trustworthy to justify his licensure and specifically, his certification as an associated person with A. G. Edwards & Sons, Inc.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the application of Felix Roman Park to be registered as an associated person with A. G. Edwards & Sons, Inc. in the State of Florida should be granted. DONE and ORDERED this 30th day of July, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3263 The Respondent filed proposed findings; the Petitioner did not. The Respondent's Proposed Findings of Fact and rulings thereon are in numbered paragraphs 1-12; they are as follows: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted but not for the material import it seeks to convey. Accepted but not for the material import it seeks to convey. Accepted but not for its material import in resolution of the issues at hand. Accepted. Accepted but not material to the resolution of the issues at hand and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted but not material to the resolution of the issues at hand and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted but not material to the resolution of the issues at hand and subordinate to the Hearing Officer's Findings of Fact on this subject matter. COPIES FURNISHED: Felix Roman Park, Jr. 6501 South Oswego Avenue Tulsa, Oklahoma 74136 H. Richard Bisbee, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact On October 30, 1982, Petitioner Gumersindo Gonzalez, and on February 25, 1983, Petitioner Miguel Porto, both registered aliens from Cuba, made application with respondent, Department of Alcoholic Beverages and Tobacco, for an alcoholic beverage license. The personal questionnaire submitted by each applicant reflected that the business to be licensed was Guiseppi Pizzeria, located at 1780 West 68th Street, Hialeah, Florida. It also reflected in each case that the total purchase price of the business being purchased was $45,000 (with nothing financed) with the sources of cash being, in each case, "from my own resources and prior businesses." Petitioner Gonzalez answered "no" to questions 1-7 on the first page of the questionnaire dealing with arrests or aliases, but Petitioner Porto admitted to having been arrested on "11/10/77" by the New York Police for carrying a concealed weapon. By affidavit attached to the questionnaire, the Petitioner Porto indicated he pled guilty to the lesser offense of an attempt to commit the crime of criminal possession of a weapon in the third degree and was adjudged guilty with probation on July 27, 1978. On September 6, 1983, Robert M. Haft, a Justice of the Supreme Court, executed a form DP-53, State of New York Certificate of Relief from Disabilities for the offense outlined above. The form reflected that the certificate shall "relieve the holder of the forfeitures, disabilities for bars hereinafter enumerated-desires to obtain liquor license for business." By this time, according to the questionnaire, Petitioner Porto was already a resident of Florida residing with his wife and Petitioner Gonzalez and his wife at 15411 Durnford Drive, Miami Lakes, Florida, 33014, with home phones for both listed as 557-8063. In addition to this offense for which the certificate of relief was issued, the Union City Police Department, Union City, New Jersey, related a police record reflecting a prior arrest for possession of a dangerous weapon on February 19, 1976. The disposition of this offense was shown as "held for grand jury." There is no indication that Mr. Porte was ever convicted of this offense, but he did fail to list it on his personal questionnaire accompanying the application for a beverage license. Luis S. Viglione, an investigator with the Respondent, Division of Alcoholic Beverages and Tobacco, was assigned to review Petitioners' application. During the course of his investigation he was furnished certain financial documentation by the petitioners which consisted of bank statements, investment records and bills for the licensed premises and the Petitioners' income tax records. The bank documents furnished showed large deposits of money without any explanation of where the money came from. The documents were originally submitted with only account numbers without any identification as to what bank they related to. At this point Petitioners and their accountant represented to Mr. Viglione that the money was for investment in the business, but in addition to there being no way to trace where it came from, there was no way to show where it went. The investment documents and receipts submitted show what monies were spent on equipment and set-up costs without any showing of where the monies came from. In addition to the above, the petitioners also submitted miscellaneous financial documents which confused Mr. Viglione and from which he could make no sense whatsoever. Further confusion was provoked by a review of the documentation submitted by the Petitioners which showed combined investment of approximately $120,000 which figure was less than the total of the receipts for monies spent to set up the business. Review of these documents resulted in no identification of or way to trace where this money, mostly in the form of cash, came from. This was in part the basis for the disapproval. Mr. Viglione does not speak Spanish and both Petitioners are Spanish speaking and speak little if any English. He did not personally talk with them about the documents and what he needed, but Mr. Porto was accompanied by an interpreter during many of their conversations and Mr. Viglione was always accompanied by a Spanish speaking agent. Notwithstanding this, Viglione indicated that on some occasions it appeared to him that Mr. Porto did not understand what it was that was expected of him. It was only after disapproval on the basis of the insufficiency of the records that counsel was brought into the picture. When counsel began to take part in the process more paperwork was submitted. Notwithstanding the additional paperwork and notwithstanding the fact that petitioners did cooperate at all times and furnish all available documentation, the application was still denied. After the second denial, at the request of Mr. Viglione, a meeting was held in Petitioners' counsel's office. At this meeting Mr. Viglione was accompanied by an agent of the Florida Department of Law Enforcement who was an accountant. At that Point, Gonzalez and Porto produced documentation showing the funds had been transmitted from an out-of-state bank or banks. When asked where these finds originated, the Petitioners indicated they came from cash on hand which was the result of business operations up north--over several years. Mr. Viglione indicated that at that point, he may not have specifically asked for more information, but contends that from the beginning, after the initial denial, he had indicated a need for proof of where the money came from. He felt and indicated to the Petitioners that the tax returns which they submitted as justification for the cash were not sufficient explanation in and of themselves. He did not however, do an audit of the tax forms or go into their background. He also did not contact any banks to see where the money came from. Mr. Porte came to Miami approximately 4 1/2 to 5 years ago from Union City, New Jersey, where he was in the poultry market business since 1974. He is still the owner of that business and still derives an income from it. It is from this business that the $45,000 was accumulated and was subsequently used to invest in the business. He has known Mr. Gonzalez for 10 years. They are close friends and Mr. Gonzalez is his daughter's Godfather. This is their first business experience together. Mr. Gonzalez, also from Union City, New Jersey, is now and has been for the past few years the owner of a food and beverage market in New York. Ha has a beverage license to sell beer in New York and has had it for approximately 7 to 8 months. He did not have it, however at the time he applied for the Florida license. The money that he invested in the business came from his operation of the food and beverage market in New York over a several year period. Francisco Jiminez has known Mr. Porte for over a year as a nice, quiet, hard working individual of good moral character. Mr. Jiminez owns a neighboring business (a liquor store) in the same shopping center where the business for where the license was applied is located. He himself owns a liquor license.
Findings Of Fact Procedural Requirements. Guillermo Fierro filed an application to acquire control of Westchester Bank, Miami, Florida with the Department in September, 1991. Westchester Bank is a state-chartered commercial banking institution located in Miami, Dade County, Florida. It is insured by the Federal Deposit Insurance Corporation. 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. The Department published receipt of the Application in the Florida Administrative Weekly pursuant to Section 120.60(5)(a), Florida Statutes. 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. 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. No member of the public appeared at the public hearing, which was conducted on July 23, 1992. The Applicant. 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. 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. 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. 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. 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. 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. 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. No immediate changes in the management of Westchester Bank (other than those set out in the Application) are planned by Mr. Fierro. 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. New Directors of Westchester Bank. 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. 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. 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. 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. 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. 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. 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. Westchester Bank. 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. 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. 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. Westchester Bank has never been under any regulatory or supervisory constraints for noncompliance with regulatory requirements. 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. 4 15. 5 14. 6 26. 7 COPIES FURNISHED: 16. 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
Findings Of Fact Respondent Larry Nathan Booker is presently employed as an office manager for an insurance agent in Jay, Florida. At all times pertinent to this proceeding, he has been licensed by Petitioner as an Ordinary Life including Health agent (Testimony of Respondent, Stipulation). On June 21, 1985, in Case No. 85-00077 in The United States District Court for the Southern District of Alabama, Respondent pleaded guilty and was found guilty to a violation of 18 United States Code, Section 656, as charged in Count One of the information. Count One of the information contained the following allegations: At all times material to this information Larry N. Booker, served in the capacity of manager of the Flomaton Branch, United Bank of Atmore, Flomaton, Alabama. At all times material to this information, the deposits of the United Bank of Atmore were insured by the Federal Deposit Insurance Corporation - charter number 0058-2 dated December 23, 1969. At all times material to this information, Larry N. Booker had open a personal checking account number 02111607 with the United Bank of Atmore. At all times material to this information, Ronald E. Watkins was doing Business as Watkins Cars-Trucks, 726 Highway 90-West, Milton, Florida and Ronald E. Watkins had open a checking account with the United Bank of Atmore. On or about the 17th day of December, 1982, Larry N. Booker, the then manager of the Flomaton Branch, United Bank of Atmore, with the intent to injure and defraud the United Bank of Atmore did knowingly and willfully misapply $2,333.33 of the funds of the United Bank of Atmore. Larry N. Booker did knowingly and wilfully misapply the $2,333.33 by crediting his personal account with a debit from the account of Watkins Cars-Trucks, at the time of debit the Watkins Cars-Trucks account was in an overdrawn status and Larry N. Booker knew that the Watkins Cars-Trucks account was in an overdrawn status; all in violation of 18 United States Code, Section 656. Respondent was placed on probation for a period of five years, and required to make restitution in the amount of $2,333.33, and to pay a personal note that he had with the United Bank of Atmore. (Petitioner's Composite Exhibit 1) In explanation of his conviction, Respondent testified that in order to assist Ronald E. Watkins in keeping his rental business property from being sold by his landlord, Respondent purchased the property in his name with four investors to hold the mortgage to the property. The arrangement was for Watkins to pay Respondent rent on the property and Respondent would subsequently make payment of the rental amount to the investors under a lease-purchase agreement at a monthly payment of $2,333.33. The payment was made on an automatic debit from Watkins' bank account to Respondent's bank account. Respondent further testified that the overdraft occurred due to the fact that Watkins came into the bank between 1:30 and 2:00 p.m., paid off some of his floor plan loans to tellers, and then went directly to Respondent's assistant to work up new additional floor plan loans to offset the checks that he had just given. However, by the time the loans were prepared and signed, it was after 2:00 p.m., which was the cut-off time for bookkeeping transactions. Therefore, the overdraft in question occurred even though it was automatically covered the next day. Respondent testified that such overdrafts are a common occurrence in the banking system and that, at no time did he have an intent to defraud the bank, nor did it lose any money as a result of the overdraft. (Testimony of Respondent)
Recommendation Based on the foregoing stipulated facts and conclusions of law as found above, I recommend that the Defendant be issued a private written reprimand. DONE and ENTERED this 25th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert J. Randolph, Esquire Randolph & Randolph P. O. Box 1546 209 West Ocean Boulevard Stuart, Florida 33494 Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
The Issue Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent's real estate license should be disciplined because the Respondent failed to account and deliver funds in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Joyce A. Wolford is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0313643 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Blue Ribbon Realty, 1400 N. Semoran Boulevard, Orlando, Florida 32807. As To Counts I and II Diane Ortiz was employed by Respondent Joyce Wolford to perform various duties, including operating the computer and taking messages. During her employment with Respondent, Diane Ortiz completed a contract for sale and purchase of certain real property which was signed by Jane Evers as buyer. In conjunction with the Evers contract, Ortiz did receive an earnest money deposit in the form of a cashier's check for the sum of $1000 and made payable to Blue Ribbon Realty. The earnest money deposit check given by Evers was turned over to Respondent by Ortiz. The endorsement on the Evers deposit check was Blue Ribbon Realty. The sale was contingent on Evers' assumption of the existing mortgage. The mortgagee did not approve Evers, and the transaction did not close. Evers contacted Ortiz and Respondent on several occasions and demanded return of her $1,000 deposit. Evers met personally with Respondent and demanded return of the $1,000 deposit. Evers sent a written demand for the return of the deposit by certified mail to Respondent on August 9, 1989. Despite Evers repeated demands for return of the $1000 deposit, Respondent has not returned any money to Evers. Jane Evers filed a lawsuit against Respondent Joyce Wolford in the County Court for Orange County, Florida, for the sum of $1,000 and court costs. A Final Judgment in the civil lawsuit was rendered for Jane Evers against Joyce Wolford for $1,000 principal plus $73 in court costs on March 15, 1990. Respondent has not satisfied the Final Judgment awarded to Evers or any portion thereof. As To Counts III and IV Anthony Pellegrino did enter a contract to purchase certain real property known as Lakefront Motel near Clermont, Florida. Respondent Joyce Wolford did negotiate the contract. Pellegrino did give Respondent a $5,000 earnest money deposit in the form of a cashier's check to secure the contract for purchase of Lakefront Motel. The cashier's check given as a deposit by Pellegrino was endorsed to Blue Ribbon Realty account #0880510063. The Lakefront transaction did not close, and Pellegrino demanded that Respondent return the $5,000 earnest money deposit on several occasions. Respondent has not returned the $5,000 deposit or any portion thereof to Pellegrino. The $5,000 earnest money deposit for the Lakefront contract was transferred to a mortgage company for a transaction involving a condominium that Pellegrino sought to purchase. Said condominium transaction did not close. In neither case did Respondent request the Florida Real Estate Commission to issue an escrow disbursement order. On July 2, 1990, the Florida Real Estate Commission entered a Final Order in the case of Department of Professional Regulation v. Joyce Wolford, finding Respondent guilty of failure to account and deliver a commission to a salesman and imposing a reprimand and an administrative fine of $1000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of having violated Subsections 475.25(1)(b) and (d), Florida Statutes (1989), as charged in Counts I, II, III and IV of the Administrative Complaint. It is further recommended that Respondent's real estate license be suspended for two years, imposing an administrative fine in the amount of $1,000 and, upon completion of the suspension period, placing Respondent on probation for a period of two years with such conditions as the Commission may find just and reasonable. DONE AND ENTERED this 8th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,9,10,11,12,13,14,15,16,1,7,18,19,20,21,22,24 (in part), 25 Rejected as cumulative or irrelevant: 7,8,23,24 (in part) Respondent's proposed findings of fact: Accepted in substance: Paragraph 1 Rejected as against the greater weight of the evidence: Paragraph 2,3 COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Raymond Bodiford, Esquire 47 East Robinson Street Orlando, FL 32801 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0750
The Issue Whether Respondents committed the offenses described in the administrative complaint? If so, what disciplinary action should be taken against them?
Findings Of Fact Based upon the record evidence and the stipulations entered into by the parties, the following Findings of Fact are made: Murray Wieder (Respondent Wieder) is now, and was at all times material hereto, a real estate broker licensed in the State of Florida pursuant to license number 0303130. His last license was issued c/o Wieder Realty, Inc., 900 S. Pompano Parkway, Pompano Beach, Florida 33069. Wieder Realty, Inc. is now, and was at all times material hereto, a corporation licensed in the State of Florida as a real estate broker pursuant to license number 0254413. Its last license reflects its address as 900 S. Pompano Parkway, Pompano Beach, Florida 33069. Respondent Wieder is now, and was at all times material hereto, the President of Wieder Realty, Inc., and its qualifying broker. Margaret Hoskins has been an investigator with the Department of Professional Regulation for the past year and a half. As part of her responsibilities, she conducts audits of escrow accounts maintained by real estate brokers licensed in the State of Florida. On April 27, 1989, Hoskins conducted a routine audit of Respondents' escrow accounts. Her investigation revealed that, on that date, Respondents maintained at Bank Atlantic in Fort Lauderdale, Florida, a noninterest-bearing escrow account (number 005-50199 0-3) with a balance of $14,577.39 and an interest- bearing account (number 005-175922-1) with a balance of $32,955.50. Respondents' "trust liability" with respect to these two accounts was $41,856.50. The $5,676.39 difference between the total balance of these two escrow accounts and Respondents' "trust liability" represented accrued interest on the monies deposited in the interest-bearing account. Respondents used the accrued interest to cover their incidental operating expenses. Hoskins further discovered as a result of her investigation that on March 13, 1989, Respondents had deposited $50,000.00 into the noninterest- bearing account, which prior to the transaction had had a balance of $950.58, and that on March 30, 1989, Respondents had withdrawn $25,000.00 from the interest-bearing account and had deposited $25,000.00 in the noninterest-bearing account. During the course of her investigation, Hoskins spoke with Respondent Wieder, who indicated to her that it was his practice to transfer funds from one of the Bank Atlantic escrow accounts to the other. Of the fully executed sales contracts and lease agreements Respondents' had on file, only one, the Kutner-Fox contract, contained a provision authorizing Respondents to place escrow monies in the interest-bearing account and to use the accrued interest for incidental operating expenses. The remaining contracts and leases were silent regarding the matter. Hoskins, in her conversation with Respondent, therefore attempted to find out from him if the escrow monies in the interest-bearing account, other than those attributable to the Kutner-Fox contract, had been deposited in the account with the permission of all interested parties. Wieder, who was otherwise very cooperative, failed to provide Hoskins with a direct answer to her question. Hoskins did not thereafter make any effort to contact these parties and ask them if they had given Respondents permission to place monies held in escrow in an interest- bearing account and to use the accrued interest to cover incidental operating expenses. Later on April 27, 1989, after Hoskins had completed her visit to their office, Respondents withdrew all of the funds from the interest-bearing account and deposited them in the noninterest-bearing account. They then closed the interest- bearing account. Respondents then transferred from the noninterest- bearing account to their operating account $5,676.39, the amount of interest that had accrued on the monies that had been in the interest-bearing account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a final order in this matter finding the proof insufficient to establish Respondents' guilt of the offenses charged and dismissing the instant administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of August, 1990. STUART M. LERNER 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 22nd day of August, 1990.
The Issue The purpose of the mandatory public hearing was to afford public comment on the application for authority to acquire Intercontinental Bank, West Miami, Florida (Intercontinental Bank). The hearing also allowed the Applicants, Eligio Cedeño and Alvaro Gorrin Ramos, to present evidence that they meet the criteria of Subsection 658.28(1), Florida Statutes, relating to reputation, character, experience, and financial responsibility such that they are qualified to acquire and own Intercontinental Bank in a legal and proper manner without detriment to the interests of the bank's stockholders, depositors, and creditors, or to the general public.
Findings Of Fact On January 12, 2005, OFR received the Application. OFR published notice of receipt of the Application on January 28, 2005, in the Florida Administrative Weekly. OFR has satisfied the notice requirements of Subsection 120.80(3)(a)1.a., Florida Statutes, and Florida Administrative Code Rule 69U-105.103. On February 3, 2005, OFR made a timely request for additional information regarding the Application. The Applicants answered this request in a letter dated May 5, 2005. The Applicants, as required by federal law, have filed a separate application with the Federal Deposit Insurance Corporation. The Applicants are foreign nationals. Mr. Eligio Cedño is proposed to own more than 25 percent of Intercontinental Bank's common stock, and Mr. Alvaro Gorrin Ramos is proposed to own more than 25 percent of Intercontinental Bank's common stock. On September 19, Don Saxon, Commissioner of OFR, issued an Order Granting Office's Petition for Public Hearing on the Application. The public hearing was scheduled for November 18, 2005, and the Applicants published a notice in the November 3, 2005, edition of The Miami Herald, which indicated the date, time, and location of the scheduled public hearing, and which otherwise complied with the requirements of Florida Administrative Code Rule 69U-105.105(1) and satisfied the notice requirement of Subsection 120.80(3)(a)4., Florida Statutes. A public hearing was held as scheduled on November 18, 2005. No member of the public appeared at the hearing, and no person expressed opposition to the Application. Mr. Eligio Cedño, a proposed major shareholder of Intercontinental Bank, has more than 26 years of banking and financial experience. He has experience as a senior officer, director, and major shareholder with various financial institutions, including Bolivar, Banco, C.A. Mr. Cedño appears to be sufficiently qualified by reputation, character, experience, and financial responsibility to control Intercontinental Bank in a legal and proper manner, and the interests of the other stockholders and the depositors and creditors of the bank, and the interests of the public generally will not be jeopardized by the proposed change in ownership. Mr. Gorrin Ramos, a proposed major shareholder of Intercontinental Bank, is a businessman with a variety of business interests throughout the United States and Venezuela. He has prior financial institution experience with Banco Canarias. Mr. Ramos appears to be sufficiently qualified by reputation, character, experience, and financial responsibility to control Intercontinental Bank in a legal and proper manner, and the interests of the other stockholder and the depositors and creditors of the bank, and the interests of the public generally will not be jeopardized by the proposed changes in ownership. Neither of the Applicants has been convicted of, or pled guilty or nolo contendre to any violation of Section 655.50, Florida Statutes, relating to the Florida Control of Money Laundering in Financial Institutions; Chapter 896, Florida Statutes, relating to offenses related to financial institutions; or any similar state or federal law. OFR conducted a background investigation on the Applicants and discovered no information to preclude the Applicants from acquiring the aforementioned shares of common stock in Intercontinental Bank. The current management and directors of Intercontinental Bank, including its president, Mr. Amadeo Lopez-Castro, Jr., will maintain their positions in the bank and will continue to manage the institution. In addition, Messrs. Carlos J. Fernandez, Alvaro J. Gorrin, and Marcel Rotker will be added to the existing board of directors of the bank. Intercontinental Bank's business plan reflects that the bank will offer full-service banking to individuals and businesses located primarily in the Miami-Dade County community. DONE AND ENTERED this 10th day of January, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2006.
The Issue The purpose of the public hearing was to review the application to consolidate New River Bank, Oakland Park, Florida, and 1st United Bank, Boca Raton, Florida, in accordance with Florida law.
Findings Of Fact 1st United Bancorp (Bancorp) is a Florida bank holding company which maintains its principal place of business at 980 North Federal Highway, Boca Raton, Florida. 1st United is a Florida chartered bank and is a wholly-owned subsidiary of Bancorp and operates full service banking facilities at seven locations in Palm Beach and Martin Counties. New River is a Florida chartered bank which maintains its executive offices at 2901 West Oakland Park Boulevard, Oakland Park, Florida, and operates two banking facilities in Broward County, Florida. The Department is the duly designated state agency vested with the responsibility of processing and approving or disapproving a plan of any financial entity to acquire the assets and assume the liabilities of another financial entity pursuant to Section 655.414, Florida Statutes. On July 13, 1993, Bancorp and New River entered into a Sale and Purchase Agreement which provides that Bancorp will cause 1st United to purchase substantially all of the assets and to assume substantially all of the liabilities of New River, after which New River will be liquidated and dissolved. The agreement noted above was duly adopted by majority vote of the respective Boards of Directors of Bancorp, 1st United and New River. In addition, the respective Boards of Directors of Bancorp, 1st United and New River duly adopted by majority vote a Plan of Acquisition of Assets and Assumption of Liabilities which summarized pertinent portions of the agreement and which includes all of the terms and conditions required by Section 655.414 (1), Florida Statutes. On September 7, 1993, 1st United and New River submitted an application to the Department seeking the Department's approval for the purchase of New River's assets and assumption of its liabilities as set forth in the agreement and as summarized by the plan. Submitted with the application were the requisite filing fee and all of the required documents including copies of the agreement, the plan and certified copies of the authorizing resolutions of the respective boards of directors. On September 17, 1993, the Department caused notice of the receipt of the application to be published in the Florida Administrative Weekly. This published notice met the requirements of Rule 3C-9.003(1), Florida Administrative Code. On September 7, 1993, Warren Orlando, in his capacity as president of 1st United, filed a petition for public hearing and notice of intention to appear on behalf of 1st United. On October 27, 1993, the Department referred the matter to the Division of Administrative Hearings for the purpose of conducting a public hearing pursuant to Section 120.60(5), Florida Statutes, and Rule 3C-9.004, Florida Administrative Code. Notice that a public hearing would be held on the application on December 13, 1993, was duly published in conformity with Rule 3C-9.005, Florida Administrative Code, in the Fort Lauderdale Sun-Sentinel, Palm Beach Post, and Stuart News, newspapers of general circulation in the communities in which 1st United and New River do business. The agreement provides that New River will receive a combination of cash and Bancorp common stock equal to the net asset value, as defined in the plan, of the assets and liabilities of New River being purchased or assumed. The agreement further provides that after the closing of the asset acquisition, New River shall cease operations and commence dissolution and liquidation proceedings. Substantially all of the Bancorp common stock and available cash received by New River from Bancorp will be distributed to New River shareholders, other than dissenting shareholders. New River stockholders will receive a pro rata portion of the Bancorp common stock and cash available for distribution. After the acquisition of the assets and assumption of liabilities as set forth in the agreement and as summarized in the plan, 1st United will have adequate capital structure in relation to its activities and its deposit liabilities. The acquisition of the assets and assumption of liabilities as set forth in the agreement and as summarized in the plan, if consummated, are not contrary to the public interest. The respective boards of directors of Bancorp and New River requested the opinion of Alex Sheshunoff & Co. Investment Banking with regard to the fairness to the respective shareholders of each corporation, from a financial point of view, of the terms and conditions of the agreement. Alex Sheshunoff & Co. Investment Banking is regularly engaged in and is an expert authority in the valuation of bank and bank holding company securities in connection with bank mergers and acquisitions. Thomas Mecredy is an expert in the valuation of bank and bank holding companies in connection with bank mergers and acquisitions. On December 8, 1993, Alex Sheshunoff & Co. Investment Banking through Thomas Mecredy issued its opinion to the respective Boards of Directors of Bancorp and New River that the terms and conditions of the agreement were fair and equitable to the shareholders of each corporation. Pursuant to the agreement, New River's Board of Directors duly adopted a plan of dissolution and complete liquidation for New River. The plan of dissolution provides that after the sale of assets and assumption of liabilities the Board of Directors will reserve a sufficient amount of Bancorp stock and cash for payment of liquidation expenses and payment of liabilities not assumed by 1st United, including contingent liabilities (general reserves). In addition to the general reserves, New River will create a special reserve (special reserve) in an amount which it considers sufficient to defend and satisfy certain potential claims which may be asserted against New River by shareholders of New River in conjunction with the organization and initial offering of common stock of New River. In determining the amounts necessary to establish the general reserves and special reserve, New River's board of directors consulted with the national law firm of Proskauer Rose Goetz and Mendelsohn with respect to both reserves and the Florida law firm of Shutts & Bowen with respect to the special reserve for advice concerning the potential liability on the part of New River in connection with both known claims and potential claims and the amounts, if any, for which New River could be held liable. Shareholder E.D. Hittson noted that the book value of the New River stock is approximately $11.00 per share versus the $4.50 per share value of the 1st United stock. In response, bank officials noted that 1st United has dividend and strong growth potential not available to New River. Shareholder James Weck questioned provisions being made to satisfy outstanding lawsuit liabilities, the future location of the facility, and the effect on New River employees. In response, bank officials stated that the potential lawsuit liability is included in the reserve amounts, that no decision has been made as to the future location of the banking facility but that the needs of the service area will be met, and that it is their intention to draw talent from the New River staff. Shareholder Amine Semaan questioned whether New River would be represented on the Board of Directors at 1st United, whether minority areas would be a priority for the future location of the facility, and whether another buyer would have paid $10.50 per share. In response, bank officials maintained that New River will have one member on the Board of Directors at 1st United, that the needs of the service area will be met, and that no other, more attractive, buyer is available. On January 11, 1994, MaryAnn Cassel, a shareholder who reportedly attended the public hearing on December 13, 1993, filed a motion for leave to become a party. Such motion alleged that the movant, a minority shareholder, will be forced to accept Bancorp common stock in exchange for her New River shares or be forced to accept appraisal rights in lieu of her shares. Further, movant claimed that the plan is not fair to all parties because the shares of New River have been undervalued. Having deemed such motion untimely, and having determined such request does not allege circumstances unknown to movant prior to the December 13, 1993 public hearing, it is denied. DONE AND ENTERED this 24th day of January, 1994, 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 24th day of January, 1994. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350 Donald E. Thompson, II Proskauer Rose Goetz and Mendelsohn One Boca Place, Suite 340 2155 Glades Road Boca Raton, Florida 37431 Michael W. Ford Phillip T. Ridolfo, Jr. Mershon, Sawyer, Johnston, Dunwody & Cole Phillips Point East Tower 777 South Flagler Drive, Suite 900 West Palm Beach, Florida 33401 Jeffrey D. Jones Department of Banking and Finance Division of Banking The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 David S. Zimble Zimble Formoso-Murias, P.A. 1401 Brickell Avenue, Suite 730 Miami, Florida 33131
Findings Of Fact The Petitioners have filed an application with the Respondent to organize a new bank in Ocala, Marion County, Florida. The name of the proposed bank would be the Citizens First Bank of Ocala. The Petitioners are the organizers and proposed directors of the bank. Each of the Petitioners is of good moral character, and each enjoys an outstanding reputation. None of the Petitioners have been convicted of any crimes involving breach of trust, and none have filed for bankruptcy, or have any history of being bad credit risks. Together the Petitioners constitute a diverse group with very broad and successful business experiences. The Petitioner William R. Kidd is a registered professional engineer and realtor who has lived and worked in Ocala since 1950. Mr. Kidd has broad experience in evaluating various aspects of real estate transactions, and he has extensive experience in arranging financing of construction projects. Mr. Kidd owns a pollution control company which has a net worth of approximately $25,000 and a real estate business with sales since 1975 in excess of $10,000,000. He also manages and operates a successful consulting engineering firm. Mr. Kidd plans to invest $40,000 in the new bank, and he has sufficient funds readily availably to make that investment. Mr. Kidd is willing to invest more money in the enterprise if additional capitalization is required. Mr. Kidd is interested in working with the bank, particularly in relation to financing of real estate transactions, and construction projects. The Petitioner Ralph Murphy was born in Marion County and has spent most of his life there. Mr. Murphy owns a linen service company which does approximately $18,500 to $19,000 in business weekly. The linen service, which Mr. Murphy has managed since it was a small entity doing less than $2,500 in business weekly, has a net worth of approximately $900,000. Mr. Murphy serves on the Boards of Directors of several other corporations. Mr. Murphy intends to purchase $40,000 of stock in the proposed new bank, and he has funds readily available with which he can do that. Mr. Murphy is willing to devote as much time as is necessary to organize the bank. The Petitioner Milton L. Copeland manages an insurance firm which writes commercial insurance policies for businesses in Florida and in Georgia. His company has offices in Ocala and Jacksonville. The Ocala office writes approximately $2,000,000 in insurance policies annually. The Jacksonville office writes approximately $15,000 in policies weekly. Mr. Copeland has a personal net worth of approximately $800,000. Mr. Copeland intends to buy $40,000 worth of stock in the proposed new bank, and he has funds readily available for that purpose. Mr. Copeland wishes to take an active part in soliciting new accounts for the bank, and he could devote as much as two full days per week to bank activities. If further capitalization of the proposed bank were considered necessary, Mr. Copeland is willing to increase his investment in the bank. The Petitioner James Cunningham owns and operates a funeral home business in Ocala. He has lived in Ocala most of his life. The dollar volume of Mr. Cunningham's business during 1976 was approximately $250,000. Mr. Cunningham is a City Councilman in Ocala. He is a black man. It has only been in recent years that blacks have even been employed at local banks, and no blacks presently serve on the Boards of Directors of any banks operating in Ocala or Marion County. Mr. Cunningham intends to purchase $40,000 worth of stock in the new bank. He will need to borrow no more than 25 percent of that amount in order to make the investment. Mr. Cunningham desires to take an active part in soliciting accounts and customers for the new bank, and he is willing to devote whatever time would be required for that purpose. The Petitioner Marjorie Renfroe owns and operates a boat, motor and trailer sales and service business in Marion County. Her business had gross sales during 1976 of approximately $350,000. Ms. Renfroe serves on the Board of Directors of the United Way in Marion County, and on the Board of Directors of the Central Florida Community College. Ms. Renfroe plans to buy $40,000 worth of stock in the new bank, and if further capitalization were found necessary, she is willing to increase her investment, and is able to do so. Ms. Renfroe is willing to devote as much time as necessary to managing the new bank, and she is particularly interested in providing services to employees and students of the local community college, especially instructional sorts of courses for students. No women presently serve on the Boards of Directors of any banks in Marion County. One woman serves on the Board of Directors of a savings and loan institution in Marion County. The Petitioner Van G. Staton manages a Belk-Lindsey Department Store in Ocala, Florida. He has lived in Ocala and managed the department store since 1956. The store employs 48 persons and had gross sales during 1976 of approximately $3,000,000. The annual payroll of the store is $400,000 to $500,000. The Petitioner serves on the Board of Directors of a local automobile sales and service corporation, and from 1970 through 1975 he served on the Marion County School Board. Mr. Staton plans to purchase $40,000 of stock in the new bank, and he would not need to borrow more than 50 percent of that amount. Mr. Staton would favor additional capitalization, and would be willing to increase his investment. Mr. Staton is particularly interested in having extended business hours in the new bank beyond the hours presently served by banks operating in Marion County, and Saturday openings. He is willing to spend as much time as is necessary with banking activities. The Petitioner Owen C. Shelton owns and manages two corporations which operate fifteen convenience stores. The total sales for the two corporations was approximately $17,000,000 during 1976. Mr. Shelton has lived in Ocala for 15 years. His personal net worth is in excess of $1,000,000. Mr. Shelton has been in the grocery business for twenty-five years. He started with one small store. His corporations employ approximately 185 persons. Mr. Shelton plans to purchase $40,000 worth of stock in the new bank, and he is willing to increase his investment if further capitalization is required. The Petitioner Terry Trexler is President and Chairman of the Board of Nobility Homes, a mobile home manufacturing business. The company does business in 29 states, and does from 5.1 to 5.2 million dollars worth of business on a quarterly basis. Mr. Trexler has lived in Ocala for 15 years. Mr. Trexler plans to invest $40,000 in purchasing stock in the new bank, and he intends to be active in soliciting new accounts and customers for the bank. The Petitioner Sam Kinlaw is a resident of Orlando, Florida. He has a Bachelor's Degree in Business Administration from the University of Florida, and attended the Banking School of the South at Louisiana State University. Mr. Kinlaw has been active in the banking business, or in similar financial businesses since approximately 1958. He has served as the head of installment loan departments and commercial lending departments of banks in Florida. Beginning in 1972, he became the Chief Executive Officer of the Semoran Bank, which was a new Federally chartered bank. He was responsible for setting up the bank, hiring personnel, establishing policies, and carrying on the day-to-day operations of the bank. He served in that capacity from near the end of 1972 until September, 1975. He has not been involved in the banking business since then. Mr. Kinlaw intends to purchase a "qualifying share" of stock in the bank. He intends to serve on the Board of Directors during the time that the bank is being organized, until other persons with direct banking experience are named to the Board of Directors. The Petitioner Braxton Jones owns and operates several convenience stores and two supermarkets. He has lived in Ocala nearly all of his life. He is prepared to purchase between $20,000 and $30,000 of stock in the new bank, and he is willing to devote whatever time would be necessary to organize and operate the bank. The Petitioner Clarence Woodrow Hicks has lived in Marion County for approximately 30 years. He formerly owned and operated Hicks News Agency, which was involved in the wholesale distribution of magazines, books, postcards and sundry items. He also owned two retail book stores. Mr. Hicks has sold his business and is now semi-retired. He serves as a consultant to the new owners of his business. During the time that he operated the businesses, they did approximately three million dollars of business per year. Mr. Hicks' net worth is in excess of one million dollars. Mr. Hicks has time available to devote to the new bank. The proposed Citizens First Bank of Ocala would, if the instant application were granted, be located at the northwest corner of the intersection of State Road 200 and Southwest 16th Avenue in Ocala. The location is approximately one mile west of Pine Street (Federal Highways 441, 27, and 301), which is the primary north/south artery through Ocala. The proposed bank would be located just over three miles east of Interstate Highway 75. State Road 200 is presently a four lane highway which serves as one of the primary routes from the Interstate Highway into Ocala. Southwest 16th Avenue is presently two- laned, but all right of ways have been acquired and construction will shortly commence to four-lane the road. All of the banks and the savings and loans associations which presently operate in the Ocala area are located east of Pine Street. There are no banking facilities in the Ocala area which are located to the west of Pine Street. Location of a banking facility to the west of Pine Street would serve the convenience of persons in Ocala who live or work on the west side of Pine Street. Pine Street is a very busy highway, which has not been properly designed so that it can be easily crossed. Furthermore, a railroad track runs parallel to Pine Street to the West, and presents an additional barrier. While it is not impossible for persons who live or work on the west side of Pine Street to bank on the east side, the testimony is unrebutted that it is inconvenient to do so due to traffic congestion, and the railroad. There are many persons who reside on the west side, of Pine Street. The area to the north of the proposed bank site is a residential area. There are many low income residences, and trailer park type residential facilities in that area. There are also many moderate income residences to the south and the west of the proposed site all on the west side of Pine Street. The total population of the primary service area, which is designated to be west of Pine Street, is estimated to be 14,300, as of July, 1977. This represents more than a 35 percent increase from 1970 population figures. Many more residences are planned in the area. Over 1,200 new homes have recently been completed, and more than 500 are under construction. Larger residential developments are in the planning stages. There is considerable commercial activity in the areas surrounding the proposed site. The Ocala Industrial Park is located immediately across State Road 200 from the proposed site, and the South 40 Industrial Park is also nearby. Thirty-eight firms presently occupy space in the Ocala Industrial Park, employing more than 1,500 persons and occupying more than one million square feet of building space. Fourteen firms are presently located at the South 40 Industrial Park, employing nearly 350 persons and utilizing more than 300,000 square feet of building space. Both Industrial Parks have experienced steady growth. Many businesses, including several automobile sales and service businesses, have located on State Road 200. Construction is scheduled to begin on a major shopping mall in January, 1978, by the Edward J. DeBartolo Corporation. The mall will be located on State Road 200 just east of Interstate Highway 75. Construction will take approximately 12 months. More than 900 persons will be employed at the mall. In addition, most of the horse farms which surround the Ocala area are located west of Pine Street. There are six banking institutions located in Marion County. The two banks located out of the Ocala area have no particular relevance to this matter. Four banks are located in Ocala. Only one of these banks is an independent bank. The others are parts of larger bank holding companies which are not centered in Ocala. Total bank deposits in Marion County have increased steadily from a total of $176,586,000 in 1973 to $236,336,000 in June, 1977. Although estimates vary, it is evident that the population of Marion County has increased from a 1970 total of approximately 69,000 to a 1977 total of from 104,000 to 127,000. It appears that existing banks in Marion County are in a healthy financial position and are experiencing steady growth. There are many interlocking relationships on the Boards of Directors of the existing banks. None of the Petitioners presently serve on the Boards of any of the existing banks, and this can only promote more lively competition among the banks. Petitioners have proposed to keep their bank open for longer hours than existing banks, and for additional banking days. Petitioners propose to provide specialized counselling for new business people, and education courses for students who attend the nearby Central Florida Community College. It appears that local banks have frequently acted adversely on loan applications from local developers, who have been able to borrow money at favorable rates outside of Marion County. The presently existing banks have not adequately served the very large and active horse farming industry that is located in Ocala, and several horse farmers have needed to go to Gainesville to obtain adequate farm businesses. Banks in Marion County have shown a deposit gain of nearly sixteen percent during the year 1976, as compared to a State of Florida average of approximately 7.4 percent. Of the sixteen counties in which new bank charters were granted in the period from January, 1975, through March, 1977, only two counties had a total deposit growth greater than was experienced in Marion County. A savings and loan association was chartered and opened in Marion County in January, 1975. The association has achieved very good success, and has not proved harmful to other financial institutions, which have also shown steady growth during this same period. Petitioners have projected a net profit at the end of the third year of their operation of $163,300 based on deposits of $10,000,000. A more conservative estimate of a net profit of $61,350, based on $8,000,000 in deposits after three years was estimated by Examiner Howze, a bank examiner who conducted an investigation of the instant application for the Respondent. George Lewis, II, the former Director of the Division of Banking, prepared a proposed budget which showed that the bank would be operating at a loss after three years. George Lewis' estimates are not credible. He estimated that the return on commercial loans would be at a rate of from 7 and 1/4 to 8 percent during the first, second and third years. Nine percent is a more realistic figure, and is itself conservative. The Respondent approved the charter of the Shores Bank of Lake Wier in Marion County which indicated a nine percent return on loans. George Lewis furthermore showed a three percent cost on all demand deposits. This cost is not justified by any factors currently accepted in the banking business. George Lewis apparently based the additional cost on his feeling that the legislature may pass a law requiring banks to pay such a return on all demand deposits. Such speculation has not been shown to be justifiable, and cannot serve as a reasonable factor to be used in predicting a proposed bank's profits. Petitioners propose to issue capital stock in the amount of $1,000,000, and thus to capitalize the new bank in that amount. This is adequate capital to serve the needs of the proposed bank during the first three years of its operation. George Lewis, II, testified that additional, capitalization would be required, but he gave no reason for his opinion. To the extent that additional capital is required, the Petitioners are in a position to raise it, and are willing to do so. Only one of the Petitioners who would serve on the first Board of Directors of the proposed bank has any direct banking experience. All of the Petitioners have engaged in considerable banking activities, but only Sam Kinlaw has served in an active capacity with a bank. The Petitioners propose to hire experienced persons to serve as the bank's Chief Executive Officer and Chief Operations Officer. These persons would also serve on the Board of Directors. The Petitioners do represent a good cross-section of successful business people. Their varied business experiences within Marion County would be very helpful to the new bank. In order to properly operate the bank, however, they will require experienced officers. Consistent with the Respondent's policy, the Petitioners have not yet named their officers. To do so, the Petitioners would place the persons they propose to hire in an untenable position in their present capacities. The Respondent has, in the past, approved bank charter applications for further processing under similar circumstances, so as to allow applicants an opportunity to recruit acceptable, experienced individuals to serve as officers. The Board of the proposed bank, as presently constituted, does not have adequate banking experience so as to assure a reasonable prospect of success. If, however, experienced, competent officers, who will also serve on the Board, are hired, the Board would be such as to assure a reasonable promise of success. The parties have stipulated that the name of the proposed bank, the Citizens First Bank of Ocala, is not so similar to any existing bank as to cause confusion with the name of the existing bank. The property which the Petitioners have obtained for the proposed bank is an excellent location. Petitioners plan to utilize a structure which is already on the land to commence operations. The structure has approximately 3,000 square feet of floor space, is aesthetically appropriate, and can be fairly easily modified to serve as a banking facility. The structure, when modified to increase the size of the lobby and to provide appropriate security measures, should prove adequate during the first three years of the bank's operation. There is sufficient land for additions to be made, and the structure is physically sound so that a second floor could be added. The Petitioners are prepared to increase the size of the facility as required.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That the Petitioners' application for authority to organize and operate the Citizens First Bank of Ocala be approved for further processing, and that the application be finally approved when the Petitioners have satisfied the Respondent that they have retained appropriate individuals to serve as the bank's principal officers, and that these persons will also serve on the Board of Directors. RECOMMENDED this 30th day of December, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER 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 30th day of December, 1977. COPIES FURNISHED: C. Gary Williams, Esquire AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR Post Office Box 391 Tallahassee, Florida 32302 S. Craig Kiser, Esquire Assistant General Counsel Office of the Comptroller Legal Annex Tallahassee, Florida 32304 Joseph C. Jacobs, Esquire Post Office Box 1170 Tallahassee, Florida 32302 Willard Ayres, Esquire Post Office Box 1148 Ocala, Florida 32670 Appendix
