Findings Of Fact Based upon my observation of the witnesses, and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Thomas Patrick Boggs, resides in Ft. Lauderdale, Florida, and is employed with MCG Portfolio Management Corporation. On March 9, 1987, the Petitioner submitted an application for registration as an associated person with MCG Portfolio Management Corporation pursuant to the "Florida Securities and Investor Protection Act," Chapter 517, Florida Statutes. By letter dated April 9, 1987, the Respondent, Department of Banking and Finance, Division of Securities and Investor Protection, denied the Petitioner's application based on the incidents discussed in paragraphs three (3) to nine (9) below. Petitioner was arrested on August 8, 1975, in the State of Virginia for the alleged offense of passing a bad check to a service station. The charges were dropped when the Petitioner made payment on the check. In a letter dated July 24, 1978, the New York Stock Exchange ("NYSE") admonished Petitioner for failing to disclose his 1975 arrest for petty larceny on a Form U-4 (Uniform Application for Securities and Commodities Industry Representative and/or Agent). The NYSE took note of Petitioner's "explanation that [he] failed to report the offense because [he] considered the problem minor and that the charge against [him] was subsequently dropped." The letter to Petitioner went on to state that "[t]he Exchange hereby admonishes you for your conduct and cautions you that any future misconduct may result in formal disciplinary action. " In a letter dated March 20, 1981, the NYSE admonished Petitioner for failing to respond correctly to a question on a Form U-4 dated May 7, 1980. Question 50(a) of the Form U-4 read as follows: "In your previous business connections or employment, have you ever been . . . a subject of a major complaint or legal proceeding?" The Petitioner responded "no" to question 50(a), although he had been named as a party defendant in a lawsuit commenced in March 1980 by a customer of Drexel, Burnham, Lambert Incorporated where he was employed as a registered representative from January to May 1980. In a letter dated March 20, 1981, the NYSE took consideration of Petitioner's "explanation that [he] interpreted Question 50(a) as referring to [his] business connections and employment prior to entering the securities business, and that [he] had disclosed the litigation to Dean Witter personnel during [his] initial interview for employment." The NYSE's letter to Petitioner went on to state that "the Exchange hereby admonishes you for your conduct and cautions you that any misconduct on your part in the future will very likely lead the Exchange to take formal disciplinary action against you." On September 25, 1985, a suit was filed against Petitioner in the United States District Court for the Northern District of Georgia. The suit, Bernard, et al v. First Continental Resources, Inc.; T. Patrick Boggs (Petitioner); David Meeks; and First Continental Drilling Associates, a Nevada Limited Partnership (Civil Action No. 85-182), alleged fraud, breach of contract, breach of fiduciary duty, and negligence in connection with the sale of securities. First Continental Resources, Inc., was the corporation general partner of First Continental Drilling Associates. Petitioner was the individual general partner for First Continental Drilling Associates and President/Chief Operating Officer and Director of First Continental Resources, Inc. Petitioner was a controlling person of First Continental Resources, Inc., and First Continental Drilling Associates as that term is used in Section 15 of the Securities Act of 1933 and Section 20 of the Securities Exchange Act of 1934. The plaintiffs in the lawsuit sought compensatory damages of approximately $800,000, treble damages, and punitive damages of $20 million. The Petitioner and the other defendants failed to defend the suit and the Court entered an Order of Default against Petitioner on March 31, 1986. On May 31, 1986, the defendants obtained a judgment against Petitioner and all defendants for approximately $2.3 million. The Petitioner testified that he had a meritorious defense to the Bernard lawsuit but failed to present it because of lack of funds for legal representation. The Petitioner testified that he was in fact a victim of fraud along with the plaintiffs, perpetrated by some of the co-defendants in the lawsuit. George Bloukos, Executive Vice President of MCG Portfolio Management Corporation, has known the Petitioner since March of 1987 when Petitioner first sought employment with his company. Since that time, the Petitioner has been employed with MCG in a clerical-like capacity, pending resolution of his registration application. Bloukos has worked in the securities and investments profession for approximately thirty (30) years. Based on Bloukos' observation of Petitioner, the Petitioner has shown himself to be a person of good character, good business ethics and a conscientious worker. Bloukos believes that Petitioner is a trustworthy individual who would be an asset to his company and to the securities and investments profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petitioner's application for registration as an associated person be DENIED. DONE and ORDERED this 7th day of October, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 7th day of October, 1987. COPIES FURNISHED: Charles E. Scarlett, Esq. Office of the Comptroller Suite 1302, The Capitol Charles L. Stutts, Esq. General Counsel Department of Banking & Tallahassee, FL 32399 Finance Plaza Level, The Capitol Tallahassee, FL 32399-0350 Thomas P. Boggs c/o George Bloukos MCG Portfolio Management Corp. 5301 North Federal Highway Suite 170 Boca Raton, FL 33431 Hon. Gerald Lewis Comptroller Department of Banking & Finance The Capitol Tallahassee, FL 32399-0350
The Issue The issue presented for decision herein is whether or not Petitioner, by failing to disclose an arrest conviction and sentencing on a license application (as the applicant administrator), constitutes grounds for revocation of an ACLF license granted pursuant to that application as provided in Section 400.414(1), (2), (b), Florida Statutes.
Findings Of Fact Petitioner applied for an initial ACLF license on or about April 10, 1985 and a license was issued pursuant thereto on July 17, 1985. In Section 4 of the initial license application, the question is asked "have you ever been arrested or convicted of a crime involving injury or harm to persons, or financial or business management (e.g., assault, battery, robbery, embezzlement or fraud)". Applicant Lorraine Cooney, answered "no" and marked the section seeking further information about such arrest or conviction: "N/A". In fact, applicant Cooney's 1986 renewal application filed June 7, 1986, indicates that she was convicted in March 5, 1985, in Federal Court of Income Tax Fraud. Specifically, a review of a letter from Ms. Cooney's U.S. Probation Officer, Terry M. Levix, indicates that Ms. Cooney pled guilty on January 4, 1985 to two counts of a two count indictment charging that she filed a fraudulent claim to the United States Treasury and was placed on two years probation effective February 5, 1985. Ms. Cooney did not contest the conviction of the fact that she was placed on probation. At hearing, applicant Cooney admitted the facts of the arrest and conviction but contested the revocation of her license based on her contention that she has operated the facility in accordance with all applicable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's appeal of the Department's revocation of her ACLF license be DENIED. RECOMMENDED this 20th day of June, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of HRS 5190 Northwest 167th Street Miami, Florida 33014 Joaquin J. Iglesias, Esquire 2001 Northwest 7th Street Suite 303 Miami, Florida 33125 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The central issue in this case is whether Petitioner is entitled to registration as an associated person of First American National Securities, Inc. (FANS).
Findings Of Fact Petitioner, Len C. Richardson, filed an application for registration as an associated person of First American National Securities, Inc. The Department is the appropriate state agency charged with the responsibility of reviewing applications such as the one at issue in this case. 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. 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. 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. The Department also advised Petitioner that if the registration agreement was not returned, completely executed, within fifteen days, that a denial would be issued. For reasons unknown, the parties were unable to resolve issues related to the registration agreement, and the Department issued the denial as noted above. 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. 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.
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. Paragraphs 1, 2, 4a, 4b, 5 and 6 are accepted. 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
Findings Of Fact At all times material hereto, Respondent, Lawrence P. Weiner, was a registered Florida real estate salesman employed by Continental Marketing Services, Inc. Continental Marketing Services, Inc. solicited real property listings from property owners in the State of Florida by means of postal cards inquiring of those property owners whether they would like to sell their Florida real property. Interested owners were requested to fill out a card with their address and telephone number, and to forward that card to Continental Marketing Services, Inc. which would then contact the property openers by telephone, Respondent, as a real estate salesman in the employ of Continental Marketing Services, Inc., would then contact responding property owners from a list furnished him by his employer. Respondent would obtain information by telephone from property owners such as initial purchase price, size and location of the property. Both Respondent and his employer represented to property owners that, should they list their property with Continental Marketing Services, Inc., the property would be advertised in foreign countries where investors existed who were interested in purchasing Florida real estate. In order to list their property with Continental Marketing Services, Inc., property owners were required to pay an "advance fee" for these listings, usually $350, which amount they were told would be used to defray the cost of initial preparation of a directory listing those properties in Florida which were for sale. After obtaining initial background information, Respondent would submit the information to his employer, which, though unclear from the record, would analyze these facts and return to Respondent for transmission to the property owner a suggested sales price. This suggested sales price was usually several times the initial purchase price for the property. For example, one witness at the hearing testified that a lot purchased on April 27, 1967 for $2,640 was ultimately listed with Continental Marketing Services, Inc. at Respondent's suggestion, at a sales price of $7,600. Testimony at the hearing indicated that comparable lots in the same area are presently selling for $4,700. Another witness testified that two lots purchased in 1965 for $2,390, were discussed in 1977 with Respondent who suggested that they be listed at a suggested sales price of $16,600. Finally, still another witness testified that he listed property with Continental Marketing Services, Inc. as a result of his contacts with the Respondent at a purchase price of $5,000 per acre in 1976 for property that he had purchased for $500 an acre in 1964. Those property owners testifying at the hearing who listed their property for sale with Continental Marketing Services, Inc., indicated that they had no further contact with either Respondent or Continental Marketing Services, Inc. after having paid their $350 listing fee. None of these property owners received any offers to purchase their property as a result of its listing with Continental Marketing Services, Inc., and, as of the date of the final hearing in this cause, the property remained unsold. The Respondent testified that his only responsibilities with Continental Marketing Services, Inc. involved contacting those persons on the lists furnished to him, and obtaining their agreement to listing their property with Continental Marketing Services, Inc. Suggested sale prices for particular pieces of property were furnished to Respondent by other employees of Continental Marketing Service, Inc. Respondent further testified that placing of advertisements for properties listed with Continental Marketing Services, Inc. was accomplished by other employees of the company. Respondent testified that he "understood" that Continental Marketing Services, Inc. had sold properties and that some of these sales were to foreign investors, although he did not know the identity of the foreign investors, or the number of parcels sold by the company. Respondent denied that he had represented to property owners that the sale of their property would be accomplished in sixty to ninety days. This contention is borne out by the testimony of two of the property owners testifying in this proceeding, one of whom testified that Respondent indicated that her property could "probably be sold within sixty to ninety days", and another property owner testified that Respondent made no representation to him concerning the length of time necessary to effect a sale of his property. There is no evidence in the record to establish that Continental Marketing Services, Inc. failed to advertise property listed for sale as promised in the Listing Brokerage Agreement with those property owners testifying in this proceeding. There is no evidence in the record in this proceeding to establish that Continental Marketing Services, Inc., in fact, knew of no foreign investors interested in purchasing property in the United States. Further, there is no testimony in the record in this proceeding to establish that Continental Marketing Services, Inc. had never sold property for other property owners in either the United states or the State of Florida. Finally, although property belonging to three of the witnesses testifying in this proceeding was listed at several times its initial purchase price, there is no indication in the record that Respondent played any part in setting the suggested listing prices.
Findings Of Fact The complaining witnesses in this case, the Marino's, owned real property in Fern Park, Florida that they listed in November, 1973, with Area One, Inc., a corporate broker. They were very anxious to sell this property. At all times here involved, respondent was a registered real estate broker and was employed as a salesman and office manager of Area One, Inc. The property was listed through salesman Eleanor Stanfield although respondent Greene accompanied her to the Marino's when the listing was obtained. Approximately two weeks thereafter, respondent obtained a prospective buyer for the property who was willing to purchase but couldn't meet the cash down payment required to make up the balance over a 95 percent mortgage. The buyer, Borsack, was an acquaintance respondent had known socially for a year or so. The suggestion was made that if Marino could loan Borsack the money for the down payment the latter would sign a balloon note payable twenty dollars per month for the first five years with the balance then due and payable. When bringing this proposal to Marino, respondent told him it was not the best deal but it was the best he could offer at the moment. At the time, Borsack was employed as a salesman and was apparently earning a good salary. Marino was receptive to the idea and agreed to loan the buyer $2400. Marino was advised by his lawyer that he should have more security for the loan than the note signed by Borsack alone and respondent agreed to guarantee the note. Marino prepared a check for $2400 which he exchanged for a cashier's check for a like amount. This was given to respondent when he executed as the guarantor and was subsequently given to the closing agent. There was conflicting testimony regarding the dispenser of the information that the existence of the note should be withheld from the mortgage broker at the closing. The complaining witnesses contended that respondent so advised them, but he denies ever giving such advice. Regardless of the complicity of respondent in this regard, both parties to the contract were aware that the mortgage would not be approved if the existence of the loan was disclosed to the mortgagee. To account for his cash payment at closing, Borsack produced for the mortgage a letter from his sister reciting a gift from her of $2200. Borsack also signed a residential loan application (Exhibit 8) in which he indicated no financing other than first mortgage and the cash he would pay at closing. Both buyer (Borsack) and seller (Marino) executed an affidavit (FNMA Form 1009)(Exhibit 10) on which they advised the mortgagee no secondary financing was involved in the transaction. At the time the loan was made by Marino to Borsack the former's attorney was aware of the circumstances surrounding the transaction and this attorney advised Marino that it would be all right for him to accept the note provided payment was guaranteed by respondent. Although no testimony was elicited from the attorney in this regard, I would expect him to be cognizant of the fact that the mortgage would not be approved if the mortgagee was aware of the loan from seller to buyer. Considerable testimony was adduced regarding whether or not the promissory note given by the buyer to the seller constituted secondary financing as intended on Exhibits 8 and 10. Since this determination is not necessary to the results reached below, respondent's understanding that "secondary financing" relates only to that financing that would create a lien on the property is likewise immaterial to the result. During a 60 day period including the time this transaction occurred, respondent sold four pieces of property for the Marino's. At no time during the negation which resulted in the sales of the property from Marino to Borsack did respondent give any false or misleading information to the Marinos. Although no evidence was presented to this effect, the complaint alleges, and the answer admits, that after the transaction closed Borsack subsequently defaulted on his mortgage and on his note to Marino; that respondent made a few payments on the note he had guaranteed before stopping these payments; and that Marino obtained a judgment against respondent for the amount of the promissory note. Thereafter, in December 1975, some two years after any act of respondent in this transaction that could have given rise to a violation of Chapter 475, F.S. occurred, the Marinos filed a complaint with the FREC and the investigation and administrative complaint here involved followed.
The Issue Whether the Petitioner is entitled to licensure in Florida as a Non-resident Life and Variable Annuity Agent?
Findings Of Fact The Petitioner, Linda C. Ballou, applied for a license as a Non-resident Life and Variable Annuity license by application completed on October 30, 2003. The Department denied her license by letter dated March 18, 2004. There is no explanation of why there was a delay in issuing the March 18, 2004 denial letter. There was no apparent request for additional information to complete the application after October 30, 2004, or information requested to resolve qualification issues. The Department denied the Petitioner's application on the basis that the Petitioner was not trustworthy or competent based upon her having been enjoined from violating the Federal Securities and Exchange Law and being barred from associating with any broker or dealer for three years after which she could reapply for association. The Department introduced and properly authenticated Respondent's Exhibits 3, 5, 6, and 7, together with a copy of the Petitioner's statement, Respondent's Exhibit 4, regarding the action of the Securities and Exchange Commission (SEC). The Petitioner testified regarding the events that were the subject of the SEC action. The Petitioner was counseling persons, particularly seniors, on purchasing life and annuity contracts primarily for long term care. She was an agent for CNA and New York Life, both of which were insurance companies. She was required to possess a "6-63 license" by her employer that authorized her to sell mutual funds and other instruments, which would be classed as securities. She carried errors and omissions (O & E) coverage with New York Life and paid the premium for O & E coverage for one year. While so employed, she was introduced by the president of CNA to his father, who told her about bonds payable in full in nine (9) months. He explained to her that these bonds were not securities, which are instruments payable in year or longer. There were several of these bonds available; however, the only one that she sold was one issued by Sebastian International Enterprises (SIE), a Florida-based television production company. These bonds paid very high rates of interest, and appeared to be a good investment. The Petitioner called the local bank and found that SIE was a viable company engaging in the business of producing films for television. She visited the company and saw them making television shows. The company had contracts to make additional television shows, and the company remained at all times pertaining to this case a viable company. After checking into the company, she invested in the company's bonds; she sold the bonds to members of her family; and members of the public. She never had any problems with the payment of premiums by the company. After selling SIE bonds for approximately a year, she saw a news story about one of the other companies, which had been presented to her by the father of the president of CNA, being investigated for being a "Ponzi" scheme. She checked with her attorney about the sale of SIE bonds, and, thereafter, contacted the Federal Bureau of Investigation (FBI) on his advise. The FBI referred the matter to the SEC, which opened an investigation of SIE. The Petitioner cooperated fully with this investigation. Ultimately, the financial records of SIE were seized, and the SEC determined that the sale of the nine-month bonds was a "Ponzi" scheme. Although no action was ever taken against SIE or the Petitioner's broker, the Petitioner and two others holding SEC licenses were disciplined. Although as a result of the aforementioned, the Petitioner surrendered her California license to sell insurance, she has been reinstated, and was able to seek an SEC securities broker's license after the three years ran. The administrative proceeding SEC brought against the Petitioner alleged that the Petitioner violated the Federal Securities and Exchange Act. The SEC order and complaint is based upon admissions by the Petitioner and recites that the Petitioner consents to the entry of the anticipated injunction without admitting or denying the allegations of the complaint. See Respondent's Exhibit 3. The complaint filed against the Petitioner in the United States District Court, Middle District of Florida is Respondent's Exhibit 5. This complaint states that the funds from the sale of the subject bonds were to fund the operations of SIE. The Petitioner testified that the proceeds were used to fund the daily operation of the company. This complaint also makes various allegations of misconduct and fraud against the Petitioner; however, no evidence was received at hearing in support of any of the SEC allegations, and the consent agreement signed by the Petitioner specifically states that she does not admit or deny the allegations contained in the complaint. By signing the agreement, the Petitioner avoided litigation on the issue and, although she voluntarily agreed to repay all commissions she earned from the sale of these notes (approximately $156,000), the agreement recites that she would not have to repay the money in light of her bankruptcy unless her statement were determined to be false. 77 United States Code 77c provides in pertinent part regarding items that are exempted as securities as follows: (3) Any note, draft, bill of exchange, or banker's acceptance which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited[.] (Emphasis supplied.)
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department issue the Petitioner a Non-resident Life and Variable Annuity Agent license. DONE AND ENTERED this 18th day of October, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 18th day of October, 2004. COPIES FURNISHED: Linda C. Ballou 1001 Bridgeway No. 314 Sausalito, California 94965 Michael T. Ruff, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Tom Gallagher, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact On January 18, 1982, the First National Bank in Palm Beach submitted a remittance report of unclaimed money items to the Office of the Comptroller. It listed, as item 10, an account which had been maintained by Alberta Stephens in the amount of $663.33. Alberta Stephens filed a claim to that money on March 20, 1989. In the interim the First National Bank had been acquired by Southeast Bank. In processing the claim, the Department requested the bank to provide it with a copy of the signature control card for the account. Southeast Bank could not do so, because under its retention schedule, all banking records were destroyed seven years after the account had been closed by sending the money to the Comptroller with the remittance report of unclaimed money items on January 18, 1982. Ms. Stephens is an elderly black woman. She was unable to produce copies of any deposit receipts or checks demonstrating ownership of the account. At the time the account was opened, depositors were not required to give their social security number to banks, so there is no way to trace the account to Ms. Stephens from documentary evidence. Ms. Stephens did produce the testimony of Preston L. Tillman, a real estate broker in Palm Beach County. Ms. Stephens had purchased income property from Mr. Tillman. He collected the rent on that property on Ms. Stephens behalf. He personally took Ms. Stephens to the First National Bank in Palm Beach County so that she could open an account in which to deposit the rents. He was present at the bank when the account was opened by Ms. Stephens. Ultimately, Ms. Stephens sold the rental property, and Mr. Tillman had no more contact with her. The evidence in this case is rather sparse, due to the passage of time. The evidence does demonstrate that Ms. Stephens had an account at the bank, and that there is no conflicting claim to that deposit. The testimony of Mr. Tillman, that he took Ms. Stephens to the bank so that she could open an account there, is accepted as adequate independent evidence of Ms. Stephens' ownership of the account.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the claim of Alberta Stephens to the $663.33 in unclaimed money items be upheld, and that the Comptroller deliver that money to Alberta Stephens. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of March, 1990. WILLIAM R. DORSEY, JR. 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 March, 1990. COPIES FURNISHED: John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33420 Eric Mendelsohn, Esquire Department of Banking & Finance 111 Georgia Avenue West Palm Beach, Florida 33401 Honorable Gerald Lewis, Comptroller Department of Banking & Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking & Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
Findings Of Fact The Petitioner, Todd T. Catlette, applied for full registration as a general securities representative. Mr. Catlette is not licensed to call or offer to sell securities in the State of Florida. The Department of Banking and Finance denied the application by letter dated January 22, 1988. Ex. 3 The application was denied based upon the following facts: On May 3, 1988, the Petitioner pleaded nolo contendere to a third degree felony, filing a false and fraudulent insurance claim, in violation of Section 817.234(1)(a), Fla. Stat., and pleaded nolo contendere to a second degree felony, second degree grand theft, in violation of Section 812.014(2)(b), Fla. Stat. He was placed on probation for one year and ordered to make restitution to the insurance company in the amount of $2,148.00. Upon failing to make restitution, his probation was extended three years. He was discharged from probation on April 28, 1987. On August 3, 1979, the Petitioner pleaded nolo contendere to sale and delivery of cocaine and possession of cocaine with the intent to sell and deliver, both second degree felonies, in violation of Section 893.03(2)(a)4, Fla. Stat. He was sentenced to two years in state prison. On November 22, 1976, the Petitioner pleaded nolo contendere to possession of less then five grams of marijuana and possession of drug paraphernalia, a first degree misdemeanor; and was placed on three months probation. After serving his sentences in state prison, the Petitioner obtained a college education. The Petitioner testified that he was innocent of the possession of marijuana offense in 1976 and innocent of the fraudulent insurance claim and theft offenses in 1985. He presented a deposition of a detective involved in the fraudulent insurance claim case which was admitted as hearsay evidence to support his assertion of innocence. It appears from the deposition and the testimony of Mr. Cutlette that the detective relied solely upon the testimony of one witness as support for the charges of false insurance claim and theft. The foregoing evidence is not sufficiently credible to prove by the preponderance of the evidence that the Petitioner was innocent of the fraudulent insurance claim and grand theft offense. When presented with an opportunity for a trail, the Petitioner pleaded nolo contendere.
Recommendation For these reasons, it is recommended that the Respondent issue its final order denying the application of Todd T. Catlette for full registration as a general securities representative. DONE AND ENTERED this 24th day of June, 1988. WILLIAM C. SHERRILL, JR. 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 24th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1161 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by parties. Findings of Fact proposed by the Petitioner: None Findings of fact proposed by the Respondent: 1. These are matters of law, and thus not appropriate as proposed findings of fact. 3.-4., 10. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. COPIES FURNISHED: Todd T. Catlette 3450 Palencia Drive, No. 1317 Tampa, Florida 22618 Reginald R. Garcia, Esquire Assistant General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32388-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350
The Issue The issues are whether the respondents violated Subsection 494.004(1), Florida Statutes (2001),1 by failing to file a written report with Petitioner that Bill Negron’s (Mr. Negron) real estate license had been permanently revoked for fraud and dishonest dealing, and, if so, what penalties, if any, should be imposed against the mortgage broker licenses of Mr. Negron and First American Mortgage & Financial Center, Inc. (First American).
Findings Of Fact Petitioner is the state agency charged with the responsibility for enforcing and administering the provisions of Chapter 494. Mr. Negron is licensed as a mortgage broker in the state. First American was licensed as a mortgage brokerage business in the state, but First American terminated its license on April 29, 2008. Mr. Negron is president, principal broker, and 100 percent owner of First American. First American is subject to disciplinary action for any statutory violations committed by Mr. Negron. On April 17, 2002, the Florida Real Estate Commission (FREC) found Mr. Negron guilty of fraud; dishonest dealing by trick, scheme or device; culpable negligence; or breach of trust in any business transaction in Final Order BPR-2002-01624. The Final Order found the licensee had failed to account or deliver funds and failed to maintain trust funds in the real estate brokerage escrow account. The FREC Final Order permanently revoked Mr. Negron’s real estate license. The Final Order found that the licensee was guilty of a course of conduct or practices that show the money, property, transactions, and rights of investors may not be safely entrusted to the licensee. Each of the respondents had a statutory duty to notify Petitioner of the revocation order issued by FREC. The duty ensures that Petitioner will have an opportunity to make an independent determination of whether a licensee is continuously qualified for licensure as a mortgage broker. Neither of the respondents notified Petitioner of the revocation order by FREC. Mr. Negron had been licensed as a mortgage broker from December 22, 2003. Professional training included specific training pertaining to the requirement to report regulatory actions for fraud, dishonest dealing, and moral turpitude to Petitioner. The licensee knew, or should have known, from pre-licensing and continuing education courses, of the requirement to notify Petitioner of the revocation of his real estate license. Petitioner did not have actual knowledge of the disciplinary action against Mr. Negron from other public records. Petitioner does not share databases with FREC. Testimony from Petitioner’s witness that it would have been virtually impossible for Petitioner’s employees to unilaterally uncover the existence of the revocation order was credible and persuasive to the trier of fact. Mr. Negron testified that he dictated a notification letter to his secretary and assumed she mailed it to Petitioner. The trier of fact finds that testimony to be neither credible nor persuasive. The record of the FREC proceeding evidences multiple offenses over a period of time that represent prior disciplinary history which preceded the revocation order by FREC. The prior disciplinary history on which FREC relied is evidenced in this record. However, no finding is made based on that evidence because the prior disciplinary history is not alleged as a factual basis for the proposed agency action in this proceeding in either the Administrative Complaint or the Amended Administrative Complaint. The only relevant finding in this proceeding, based on the prior disciplinary history in the FREC proceeding, is that neither of the respondents notified Petitioner of the prior disciplinary history with FREC. The failure to notify Petitioner of the prior disciplinary action by FREC is consistent with the failure of the respondents to notify Petitioner of the entry of a revocation order by FREC and is considered solely for the purpose of determining the credibility of the testimony presented by the respondents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order permanently revoking the mortgage broker’s license of the two respondents. DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2009.
