08-004944 Marta Comas vs. Office Of Financial Regulation Status: Closed Recommended Order on Friday, February 27, 2009.

Summary: Respondent presented evidence establishing grounds for denial of Petitioner`s application for license, including revocation of license in 2001. Petitioner failed to prove rehabilitation and her application for license should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTA COMAS, )

)

Petitioner, )

)

vs. ) Case No. 08-4944

)

OFFICE OF FINANCIAL REGULATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on December 17, 2008, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia M. Hart, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: O. Frank Valladares, Esquire

Law Offices of Frank Valladares

and Associates

3147 49th Street North

St. Petersburg, Florida 33710

For Respondent: Robert H. Schott, Esquire

Office of Financial Regulation

Post Office Box 8050

Tallahassee, Florida 32314-8050

STATEMENT OF THE ISSUE

Whether the Petitioner's application for licensure as a

mortgage broker should be granted or denied.

PRELIMINARY STATEMENT

In a Notice of Denial of Application dated August 6, 2008,

the Office of Financial Services ("Office") notified Marta Comas

of its intent to deny her application for licensure as a

mortgage broker. The Office identified the following bases for

its intended denial: Section 494.0041(2)(b), (f), (h), (i),

(j), (k), (p), (q), and (u)2., Florida Statutes (2008), 1 and

Florida Administrative Code Rule 69V-40.031(2). The factual

allegations set forth in the Notice of Denial are as follows:

a. On or about June 25, 2001, the Final

Order entered in case number 7074-F-12/99

revoked your previous mortgage broker

license. The revocation was affirmed on

appeal in Comas v. Department of Banking and

Finance, 820 So.2d 1088 (Fla. 3d DCA 2002),

which found:

Appellant’s conduct in altering a

customer check, depositing it in her

personal account, and later writing a letter

to the customer on company letterhead

falsely stating that the funds were in the

hands of the title company jeopardized not

only the customer, but also her employer and

the title company. This conduct violates

the numerous statutory provisions referenced

in the Final Order, casts considerable doubt

on either Appellant’s competence, integrity,

or both, and clearly warrants license

revocation.

The Final Order entered in case number 7074-

F-12/99 established grounds for denial

pursuant to subsections

494.0041(2)(b)(f)(h)(p)(q), 494.0025(4)(a-

c), and 494.0025(5), Florida Statutes.

Further, the revocation is a ground for

denial within the meaning of subsection

494.0041(2)(i) and (u)2.

b. On or about March 17, 2003, the Office

of Financial Regulation addressed your new

mortgage broker license application by

mailing you a Notice of Denial of

Application. The denial was based on the

fact that you had been the subject to [sic]

the above mentioned Final Order which

revoked your license and because each

violation as stated in the Final Order

provided grounds for denial of your

application. On or about September 30,

2003, the Division of Administrative

Hearings, in [DOAH] case number 03-1738,

made an independent recommendation that the

Office deny your license application based

on your failure to demonstrate

rehabilitation. Consequently, on or about

October 27, 2003, a Final Order was entered

denying your Mortgage Broker License

application. The license denial is a ground

for denial within the meaning of subsection

494.0041(2)(i) and (u)2.

c. On or about July 23-24, 2003, in DOAH

case number 03-1738, Marta Mantelon Comas v.

Office of Financial Regulation , you gave

untruthful testimony in support of your

petition seeking licensure as a Mortgage

Broke The untruthful testimony violated

section 494.0025(5) and is a ground for

denial pursuant to 494.0041(2)(p).

d. You violated Final Order number 0044-F-

3/03 by violating the terms as set forth in

clauses 6.1.1 and 6.1.2 of the Stipulation

and Consent Agreement incorporated by

reference in the Final Order. This is a

ground for denial within the meaning of

subsection 494.0041(2)(j).

e. Based on the facts discussed at a.

through d., immediately above, on December

18, 2006, the Office of Financial Regulation

entered a Final Order, in case number 1575-

F-7/06, denying your then pending mortgage

broker license application. The license

denial is a ground for denial within the

meaning of subsection 494.0041(2)(i) and

(u)2.

f. As recent [sic] as April 17, 2008, you

continued to violate clause 6.1.1 of the

Stipulation and Consent Agreement that you

signed on December 14, 2003 and that was

incorporated by reference in the Final Order

entered in case number 0044-F-3/03. This is

a ground for denial within the meaning of

subsection 494.0041(2)(j).

Mrs. Comas timely requested a formal administrative hearing, and

the case was transmitted to the Division of Administrative

Hearings for assignment of an administrative law judge.

Pursuant to Notice, the final hearing was held on December 17,

2008.

Prior to the hearing, the Office and Mrs. Comas submitted

motions in limine seeking to exclude certain evidence. Both

motions were denied without prejudice to renew the objections if

and when the evidence identified in the motions was offered at

the formal hearing. Also, as a preliminary matter at the final

hearing, the Office abandoned two of its factual allegations for

license denial: that Mrs. Comas had acted as a mortgage broker

in violation of a Stipulation and Consent Agreement with the

Office; and that Mrs. Comas had failed to provide high school

graduation information, as required by Florida Administrative

Code Rule 69V-40.031(2). Accordingly, the charge that

Mrs. Comas violated Florida Administrative Code Rule 69V-

40.031(2) was withdrawn by the Office and will not be addressed

in this Recommended Order.

At the formal hearing, Mrs. Comas testified in her own

behalf, and Petitioner's Exhibits 1, 2, 4, 8, 13, and 14 were

offered and received into evidence. Petitioner's Exhibits 13

and 14 consist of the transcripts of the depositions of Patricia

Caminero and Annette Torres, respectively, which were received

in lieu of live testimony. The Office called no witnesses, and

Respondent's Exhibits A, B, C, D, E, H, I, L, N, P, Q, and Y

were offered and received into evidence. Respondent's Exhibit E

was offered for the limited purpose of showing that Mrs. Comas

responded to a consumer complaint posted on an Internet website

and was received into evidence only for this limited purpose.

Respondent's Exhibit R, consisting of the two-volume transcript

of the proceedings in DOAH Case No. 03-1738 was offered into

evidence but was rejected; the Office proffered the document.

The one-volume transcript of the proceedings was filed with

the Division of Administrative Hearings on January 6, 2009, and

the parties timely filed proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Office is the state agency responsible for

regulating mortgage brokerage and mortgage lending and for

Stat.

License revocation and criminal prosecution

2. The Office's predecessor, the Department of Banking and

Finance ("Department"), issued a mortgage broker's license to

Mrs. Comas in 1997. Mrs. Comas worked as a mortgage broker with

Miami Mortgage Lenders until 1999, when she left her employment

with that company after she was involved in what will be

referred to as "the Sipple transaction."

3. The Department initiated disciplinary action against

Mrs. Comas's mortgage broker's license, and, because Mrs. Comas

stipulated to the material facts of the Sipple transaction, an

informal administrative hearing was held before a hearing

officer appointed by the Department. The Department entered a

final order revoking Mrs. Comas's mortgage broker's license on

June 25, 2001, which was upheld on appear by the Third District

Court of Appeal in Comas v. Department of Banking and Finance ,

820 So. 2d 1088 (Fla. 3d DCA 2002).

4. The material facts of the Sipple transaction and the

basis for the revocation of Mrs. Comas's mortgage broker's

license were set out by the district court in Comas , which

quoted the Final Order with approval, as follows:

"Appellant's conduct in altering a customer

check, depositing it in her personal

account, and later writing a letter to the

customer on company letterhead falsely

stating that the funds were in the hands of

the title company jeopardized not only the

customer, but also her employer and the

title company. This conduct violates the

numerous statutory provisions referenced in

the Final Order, casts considerable doubt on

either Appellant's competence, integrity, or

both, and clearly warrants license

revocation."

5. Criminal charges were filed against Mrs. Comas as a

result of her actions in the Sipple transaction. The

information filed against Mrs. Comas, and all counts thereof,

was dismissed by order of the Circuit Court of the Eleventh

Judicial Circuit in and for Dade County, Florida, in April 2002.

Denials of applications for licensure as a mortgage broker

subsequent to revocation

6. In October 2002, Mrs. Comas applied for licensure as a

mortgage broker. The Office notified her that it intended to

deny her application in a Notice of Denial dated March 17, 2003.

Mrs. Comas requested an administrative hearing, and the case was

transmitted to the Division of Administrative Hearings and

assigned DOAH Case No. 03-1738. A recommended order was entered

on September 30, 2003, in which the administrative law judge

found that Mrs. Comas failed to establish that she was

rehabilitated and recommended that Mrs. Comas's application be

denied. The Office entered a final order in which it adopted

the findings of fact and conclusions of law in the recommended

order, and denied Mrs. Comas's application for licensure as a

mortgage broker.

7. Among the findings of fact made in the Recommended

Order in DOAH Case No. 03-1738 and adopted in the Office's Final

Order was a finding that Mrs. Comas had failed to make

restitution to the owner of Miami Mortgage Lenders, who had paid

Ms. Sipple the monies that Mrs. Comas had improperly deposited

in her personal account.

8. On March 10, 2006, Mrs. Comas again applied to the

Office for licensure as a mortgage broker. In a Notice of

Denial of Application dated November 9, 2006, the Office

notified Mrs. Comas that it intended to deny her application.

Mrs. Comas did not request an administrative hearing, and the

Office entered a final order denying the application on

December 18, 2006. The Office incorporated into the final order

the factual bases set forth in the November 9, 2006, Notice of

Denial of Application, which were virtually identical to the

factual bases set forth in paragraphs a. through d. of the

Notice of Denial at issue herein.

RPM Lenders, Inc. and related companies

9. In 1997, Mrs. Comas and her husband, Rolando Comas,

founded RPM Lenders, Inc. ("RPM Lenders"). Mrs. Comas worked as

a mortgage broker with RPM Lenders from the time she left her

employment at Miami Mortgage Lenders in 1999 until her mortgage

broker's license was revoked in 2001. Mrs. Comas continued

working for RPM Lenders after her mortgage broker's license was

revoked in 2001. 2 RPM Lenders shared office space with RPM

Systems, a computer company which set up computer networks and

distributed computers, and it also shared office space with RPM

Loans and Realty, which was created in 1999 or 2000 to handle

real estate transactions.

10. On or about December 29, 2003, Mr. Comas and

Mrs. Comas, on behalf of RPM Lenders, signed a Stipulation and

Consent that was incorporated into a final order entered by the

Office on December 30, 2003. In the Stipulation and Consent, it

was recited that Mrs. Comas was the sole owner and president of

RPM Lenders until May 14, 2003. In paragraph 6.1.1 of the

Stipulation and Consent, Mrs. Comas agreed that she would "not

become a mortgage broker, principal broker, principal

representative, owner, officer or director of R.P.M. Lenders,

Inc."

11. From 2004 through April 17, 2008, Mrs. Comas was the

corporate secretary for RPM Lenders until it ceased business in

2007, when its name was changed to ROC Lenders, Inc. ROC

Lenders, Inc., never did any business, but Mrs. Comas

nonetheless continued to serve as that company's corporate

secretary until her name was deleted as the corporate secretary

pursuant to a filing with the Florida Secretary of State dated

April 17, 2008. 3

12. At the times material to this proceeding, Mrs. Comas

managed RPM Lenders, RPM Loans and Realty, and RPM Systems. Her

title with RPM Lenders and RPM Loans and Realty was "Finance

Manager," and her duties included the general daily management

responsibilities of an office manager, such as ensuring that

office equipment was repaired and maintained and ordering office

supplies, as well as duties that included customer support,

marketing and advertising, developing and implementing quality

control procedures, preparing financial statements, handing

accounts receivable and accounts payable, reconciling all bank

accounts, reviewing all funded files, and attending all of the

closings. Mrs. Comas was paid a management fee for her services

as Financial Manager and Office Manager for RPM Lenders and RPM

Loans and Realty.

13. In providing customer support for RPM Lenders and RPM

Loans and Realty, Mrs. Comas responded to customer complaints on

behalf of the brokers employed by those companies, reviewing

files and attempting to resolve problems and disagreements

between customers and brokers.

14. RPM Loans and Realty was created in 1999 or 2000 "for

realty purposes," and Mrs. Comas began working with RPM Loans

and Realty as a real estate associate beginning in March 1999.

Mrs. Comas continued to work with RPM Loans and Realty both as

manager and as a real estate associate up to the time of the

final hearing. 4

Rehabilitation

15. As part of her practice as a real estate associate,

Mrs. Comas accepts deposits from buyers and transmits them to

title companies. 5 Mrs. Comas's license as a real estate

associate was current at the time of the final hearing, and it

has never been the subject of disciplinary action.

16. In a letter dated November 12, 2008, to Sherry Sipple,

the person whose check Ms. Comas altered and deposited in her

personal bank account, Mrs. Comas denied having altered the

check, stating that her name was placed on the check by someone

else. Mrs. Comas did not mention in the letter her depositing

Ms. Sipple's check in her personal bank account, and Mrs. Comas

blamed Ms. Sipple and Ms. Sipple's brother for what she called a

"misunderstanding," stating that, because Ms. Sipple and

Ms. Sipple's brother went to the closing on the subject property

without Mrs. Comas, she was unable to deliver to the title

company the money Ms. Sipple had entrusted to her. Mrs. Comas

apologized to Ms. Sipple "for what happened," but then asked

that she give Mrs. Comas's attorney a "statement of acceptance

of this BIG MISUNDERSTANDING." 6

17. Mrs. Comas telephoned Mark Mazis, her employer at

Miami Mortgage Company, and apologized to him for "what

happened." 7

18. Mrs. Comas acknowledged in her testimony at the final

hearing that she did something wrong, although she insisted that

she did not intend to steal Ms. Sipple's money by placing it in

her personal bank account but intended only to expedite

Ms. Sipple's closing.

19. Since her license was revoked in 2001, Mrs. Comas has

contributed to charities and attends church approximately twice

a month.

Summary

A. The Sipple transaction

20. The evidence presented by the Office in the form of

the opinion of the Third District Court of Appeal in Comas v.

Department of Banking and Finance establishes conclusively that,

in 1999, Mrs. Comas committed fraud, misrepresentation, deceit,

or incompetence in a mortgage financing transaction; that

Mrs. Comas failed to deliver funds to her customer that

Mrs. Comas was not entitled to retain; and that Mrs. Comas

misappropriated the customer's check by depositing it in her

personal account.

B. Untruthful testimony in DOAH Case No. 03-1738

21. The evidence presented by the Office is not sufficient

to support a finding of fact that Mrs. Comas gave untruthful

testimony in a previous administrative proceeding. In the

Notice of Denial dated August 6, 2008, the Office stated as one

of the factual grounds for its denial of Mrs. Comas's

application for a mortgage broker's license that Mrs. Comas had

testified untruthfully at the final hearing in DOAH Case No. 03-

1738. This allegation was apparently based on several findings

of fact in the Recommended Order which were referenced in the

Office's Proposed Recommended Order in the instant case, as

follows:

5. At the July 23, 24[, 2003] formal

hearing three issues were litigated —

Mrs. Comas’s claims about the circumstances

of the Sipple transaction, Mrs. Comas’s

claim that she had paid restitution, and her

claim that she had apologized to the

victims, Sherry Sipple (now Sherry

Mercugliano) and Marc Mazis. (Exhibit Q)

On these three claims, Mrs. Comas’s

testimony conflicted with that of the

victims. (Id.)

6. The Administratively [sic] Law Judge

weighed the conflicting testimony and

determined:

18. Through the time of the

hearing, Comas falsely claimed the

transaction failed because Sipple

was dissatisfied with the interest

rate Comas was able to obtain.

This testimony is rejected in

favor of Sipple's much more

convincing explanation that she

rejected the balloon payment Comas

proposed, insisting upon the fixed

rate which she had required from

the beginning.

* * *

20. For all of the trouble Comas

caused Sipple and Mazis, she has

never apologized to them.

Although Comas testified to the

contrary on that point, her self-

serving testimony is not credible .

* * *

22. Taking into account the

entire record, and having had the

opportunity to view the demeanor,

credibility, ability to perceive

facts, knowledge of the facts and

circumstances of the events to

which they testified, and motive

to testify, of each of the

witnesses in close and stressful

quarters, the conclusion is

inescapable that the victims'

version of events is entirely

consistent with the truth. To the

extent that victims' recollections

or characterizations of material

events differ from those of Comas

and her witnesses, the testimony

of the victims is credited.

(Emphasis added.) (Id.) Consequently,

Petitioner made false claims and testified

untruthfully at the July 23-24, 2003 formal

hearing.

22. The discussions in the quoted paragraphs are not

findings of fact regarding the truth or falsity of Mrs. Comas's

testimony. Rather, the Administrative Law Judge was assessing

the quality and quantity of the evidence presented by the

parties as a predicate to making findings of fact regarding the

issue of whether Mrs. Comas had established rehabilitation. The

Administrative Law Judge's assessment that Mrs. Comas's

testimony was not as credible or as persuasive as the

conflicting testimony of other witnesses was an assessment of

the weight of the evidence and the credibility of the witnesses

made by the Administrative Law Judge in order to determine which

conflicting testimony and evidence is the more persuasive.

23. Although the Administrative Law Judge included in

paragraph 18 of the Recommended Order in DOAH Case No. 03-1738 a

statement that Mrs. Comas made a "false" claim in her testimony,

it is clear from a reading of the entire paragraph that the

Administrative Law Judge found Ms. Sipple's version of the

events more credible. Indeed, an Administrative Law Judge would

be acting improperly if he or she were to make a finding of fact

that a party's or witness's testimony was untruthful or false

because the truth or falsity of evidence is not at issue in an

administrative proceeding. Such a finding would amount to a

finding that the party or witness had committed perjury, which

cannot be litigated in an administrative forum but is, rather,

subject to criminal prosecution. See Ch. 837, Fla. Stat.

C. The Office's denials of Mrs. Comas's applications for

licensure subsequent to the revocation of her license

24. The evidence presented by the Office establishes that

it denied Mrs. Comas's applications for licensure as a mortgage

broker in 2003 and 2006. The 2003 denial was based on a Final

Order in which the Office, adopting the findings of fact and

conclusions of law in the Recommended Order in DOAH Case No. 03-

1738, found that Mrs. Comas had failed to establish that she had

rehabilitated herself since the license revocation. The 2006

denial referenced, among other grounds, the denial of her

application for licensure in 2003 for fraud and dishonest

dealing. The Office's denials of Mrs. Comas's previous

applications for licensure cannot, however, serve as an

independent basis for denial of the application at issue herein.

Were the previous denials sufficient of themselves to provide a

basis for denying Mrs. Comas's future applications, the Office

could perpetuate the denial of Ms. Comas's future applications

indefinitely without regard to any efforts of Mrs. Comas to

prove herself entitled to licensure.

D. Mrs. Comas's service as an officer of RPM Lenders

25. The evidence presented by the Office is sufficient to

establish that Mrs. Comas violated a final order of the Office

by serving as an officer of RPM Lenders and its successor

company, ROC Lenders, Inc., subsequent to signing a stipulation

in December 2003 averring that she would not serve as a

corporate officer of RPM Lenders. Mrs. Comas's role in

responding customer complaints about the service provided by

mortgage broker employed by RPM Lenders does not, however, rise

to the level of acting as an officer of the corporation. 8

E. Rehabilitation

26. The evidence presented by Mrs. Comas is not sufficient

to establish that she has rehabilitated herself in the 10 years

that have elapsed since the Sipple transaction. Although she

attends church and contributes to charities, she presented no

evidence of any other community service.

27. The lack of any disciplinary action against her real

estate associate's license since it was issued is a factor in

Mrs. Comas's favor, but she failed to present any evidence

regarding the number of real estate transactions she handles,

and it was, therefore, not possible to assess the frequency with

which she handled the funds of others in the context of real

estate transactions.

28. Other than her testimony about the November 2008

conversation with Mr. Mazis, Mrs. Comas presented no evidence

with respect to her apology to him or to any acknowledgment she

made to him that she had acted improperly in the Sipple

transaction.

29. Mrs. Comas's letter of apology to Ms. Sipple consisted

primarily of her attempts to cast her actions in the Sipple

transaction in a light favorable to herself, to excuse her

actions as efforts to assist Ms. Sipple, and to blame others,

including Ms. Sipple, for the incident. Although Mrs. Comas

expresses remorse for what happened, she does not accept

responsibility for her actions.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

31. Mrs. Comas has applied for licensure as a mortgage

broker, and she, therefore, has the burden of proving by a

preponderance of the evidence that she meets all the

requirements for issuance of the license. See Department of

Banking & Fin. v. Osborne Stern , 670 So. 2d 932, 934 (Fla.

1996)("[W]hile the burden of producing evidence may shift

between the parties in an application dispute proceeding, the

burden of persuasion remains upon the applicant to prove her

entitlement to the license."); § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute . . . .").

32. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289, n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997),

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

33. Section 494.0033, Florida Statutes, sets forth the

criteria for licensure as a mortgage broker in Florida, in

pertinent part as follows:

(2) Each initial application for a mortgage

broker's license must be in the form

prescribed by rule of the commission. The

commission may require each applicant to

provide any information reasonably necessary

to make a determination of the applicant's

eligibility for licensure. The office shall

issue an initial license to any natural

person who:

(a) Is at least 18 years of age and has a

high school diploma or its equivalent.

(b) Has passed a written test adopted and

administered by the office, or has passed

an electronic test adopted and administered

by the office or a third party approved

by the office, which is designed to

determine competency in primary and

subordinate mortgage financing transactions

as well as to test knowledge of ss. 494.001-

494.0077 and the rules adopted pursuant

thereto. . . .

(c) Has submitted a completed application

and a nonrefundable application fee of $195.

An application is considered received for

purposes of s. 120.60 upon receipt of a

completed application form as prescribed by

commission rule, a nonrefundable application

fee of $195, and any other fee prescribed by

law.

(d) Has filed a complete set of

fingerprints for submission by the office to

the Department of Law Enforcement or the

Federal Bureau of Investigation for

processing. . . .

(3) Any person applying after July 1, 1992,

must have completed 24 hours of classroom

education on primary and subordinate

financing transactions and the laws and

rules of ss. 494.001-494.0077 to be eligible

for licensure. The commission may adopt

rules regarding qualifying hours.

(4) Notwithstanding the provisions of

subsection (1), it is a ground for denial of

licensure if the applicant has committed any

violation specified in ss. 494.001-494.0077

or has pending against her or him any

criminal prosecution or administrative

enforcement action, in any jurisdiction,

which involves fraud, dishonest dealing, or

any other act of moral turpitude.

34. In its Notice of Denial, the Office did not contend

that Mrs. Comas failed to meet the criteria set out in

Section 494.0033(2), Florida Statutes, and it will be presumed

that Mrs. Comas meets the requirements qualifications for

licensure set forth in Section 494.0033(2), Florida Statutes.

35. Although the Office did not specifically cite the

statute, it is clear from the Notice of Denial that the Office

based its preliminary decision to deny Mrs. Comas's application

on Section 494.0033(4), Florida Statutes, and the Office

identified the following statutory grounds for its preliminary

p),

(q), and (u)2., Florida Statutes, and Florida Administrative

Code Rule 69V-40.031(2). The Office has withdrawn as grounds

Section 494.0041(2)(k), Florida Statutes, and Florida

Administrative Code Rule 69V-40.031(2), and those grounds will

not be addressed herein.

36. Section 494.0041, Florida Statutes, provides in

pertinent part:

(1) Whenever the office finds a person in

violation of an act specified in subsection

(2), it may enter an order imposing one or

more of the following penalties against the

person:

* * *

(f) Denial of a license or registration.

(2) Each of the following acts constitutes

a ground for which the disciplinary actions

specified in subsection (1) may be taken:

* * *

(b) Fraud, misrepresentation, deceit,

negligence, or incompetence, in any mortgage

financing transaction.

* * *

(f) Failure to account or deliver to any

person any property that has come into her

or his hands and that is not her or his

property or that she or he is not in law or

equity entitled to retain, under the

circumstances and at the time which has been

agreed upon or is required by law or, in the

absence of a fixed time, upon demand of the

person entitled to such accounting and

delivery.

* * *

(h) Any misuse, misapplication, or

misappropriation of personal property

entrusted to her or his care to which she or

he had no current property right at the time

of entrustment.

(i) Having a license, or the equivalent, to

practice any profession or occupation

revoked, suspended, or otherwise acted

against, including the denial of licensure

by a licensing authority of this state or

another state, territory, or country for

fraud, dishonest dealing, or any other act

of moral turpitude.

(j) Failure to comply with any order or

rule made or issued under ss. 494.001-

494.0077.

* * *

(p) Failure to comply with, or violation

of, any other provision of ss. 494.001-

494.0077.

(q) Commission of fraud, misrepresentation,

concealment, dishonest dealing by trick,

scheme, or device, culpable negligence, or

breach of trust in any business transaction

in any state, nation, or territory; or

aiding, assisting, or conspiring with any

other person engaged in any such misconduct

and in furtherance thereof.

* * *

(u)1. . . .

2. Having been the subject of any

injunction or adverse administrative order

by a state or federal agency regulating

banking, insurance, finance or small loan

companies, real estate, mortgage brokers or

lenders, money transmitters, or other

related or similar industries.

37. In the Notice of Denial, the Office specified

the violations underlying the ground for denial in

Section 494.0041(2)(p). Section 494.0025, Florida Statutes,

provides in pertinent part:

It is unlawful for any person:

* * *

(4) In any practice or transaction or

course of business relating to the sale,

purchase, negotiation, promotion,

advertisement, or hypothecation of mortgage

transactions, directly or indirectly:

(a) To knowingly or willingly employ any

device, scheme, or artifice to defraud;

(b) To engage in any transaction, practice,

or course of business which operates as a

fraud upon any person in connection with the

purchase or sale of any mortgage loan; or

(c) To obtain property by fraud, willful

misrepresentation of a future act, or false

promise.

(5) In any matter within the jurisdiction

of the office, to knowingly and willfully

falsify, conceal, or cover up by a trick,

scheme, or device a material fact, make any

false or fraudulent statement or

representation, or make or use any false

writing or document, knowing the same to

contain any false or fraudulent statement or

entry.

38. Although Mrs. Comas has the burden of proving that she

meets the criteria for licensure as a mortgage broker, the

Office has the burden of presenting evidence sufficient to

establish that Mrs. Comas committed the violations on which it

based its preliminary decision to deny Mrs. Comas's application.

As the court stated in Osborne Stern & Co. ,:

[W]e agree with the analysis of Judge Booth

explaining that in license application

proceedings:

The general rule is that a

party asserting the affirmative of

an issue has the burden of

presenting evidence as to that

issue. Florida Department of

Transportation v. J.W.C. Company ,

396 So. 2d 778 (Fla. 1st DCA

1981). Thus, the majority is

correct in its observation that

appellants had the burden of

presenting evidence of their

fitness for registration. The

majority is also correct in its

holding that the Department had

the burden of presenting evidence

that appellants had violated

certain statutes and were thus

unfit for registration. The

majority's conclusion, however,

that the Department had the burden

of presenting its proof of

appellants' unfitness by clear and

convincing evidence is wholly

unsupported by Florida law and

inconsistent with the fundamental

principle that an applicant for

licensure bears the burden of

ultimate persuasion at each and

every step of the licensure

proceedings, regardless of which

party bears the burden of

presenting certain evidence. . . .

Osborne , 647 So. 2d at 250 (Booth, J.,

concurring and dissenting)(citations

omitted). We emphasize the correctness of

Judge Booth's conclusion that, while the

burden of producing evidence may shift

between the parties in an application

dispute proceeding, the burden of persuasion

remains upon the applicant to prove her

entitlement to the license. Id.

(Footnotes omitted.) 670 So. 2d at 934. Therefore, the Office

has the burden of presenting evidence to establish that

Mrs. Comas committed the violations alleged in the Notice of

Denial.

39. Based on the findings of fact herein, the Office has

presented evidence sufficient to establish that Mrs. Comas

committed the acts prohibited in Section 494.0041(2)(b), (f),

and (h), Florida Statutes, when acting in her capacity as a

mortgage broker for Ms. Sipple.

40. Based on the findings of fact herein, the Office has

also presented evidence sufficient to establish that

Mrs. Comas's mortgage broker license was revoked for fraud or

dishonest dealing as a result of the Sipple transaction, which

revocation is a ground for denying an application for licensure

pursuant to Section 494.0041(i), Florida Statutes.

41. Based on the findings of fact herein, the Office has

presented evidence sufficient to establish that Mrs. Comas

violated the final order issued by the Office on December 30,

2003, by continuing to serve as corporate secretary of RPM

Lenders and its successor corporation until April 17, 2008, a

ground for denial of an application for licensure pursuant to

Section 494.0041(2)(j).

42. Based on the findings of fact herein, the Office has

presented evidence sufficient to establish that Mrs. Comas

violated Section 494.0025(4)(a) through (c), Florida Statutes,

by her actions in the Sipple transaction and, therefore,

violated Section 494.0041(2)(p), Florida Statutes. However,

based on the findings of fact herein, the Office has failed to

present evidence sufficient to establish that Mrs. Comas

violated Section 494.0025(5), Florida Statutes.

43. Based on the findings of fact herein, the Office has

presented evidence sufficient to establish that Mrs. Comas

committed misrepresentation and breach of trust in her dealings

with Ms. Sipple, a ground for denial of an application for

licensure pursuant to Section 494.0041(2)(q), Florida Statutes.

44. Based on the findings of fact herein, the Office has

presented evidence sufficient to establish that Mrs. Comas has

been the subject of an adverse administrative order in Florida,

a ground for denial of an application for licensure pursuant to

Section 494.0041(2)(u)2., Florida Statutes.

45. The Department has discretion to approve a license

application even though there are statutory bases upon which it

may deny the application. See § 494.0041(1), Fla. Stat. (The

Office may approve an application for licensure even if a person

has committed one of the violations specified in

Section 494.0041(2), Fla. Stat.) In determining whether to

exercise its discretion in that regard, the Office may consider

whether the applicant has demonstrated that he or she is

rehabilitated based upon the passage of time, subsequent good

conduct, and other similar factors. See Zaremba v. Dept. of

Banking & Finance , DOAH Case No. 94-1229, 1994 Fla. Div. Adm.

Hear. LEXIS 5741, 7-9 (DOAH Aug. 3, 1994; DBF Sept. 16, 1994)

(approving application for mortgage broker license based upon

applicant's proof of rehabilitation); Matala v. Dept. of Banking

& Finance , DOAH Case No. 93-5603, 1994 Fla. Div. Adm. Hear.

LEXIS 5448, at 6 (DOAH Jan. 27, 1994) (recommending denial of

mortgage broker license based upon applicant's failure to

demonstrate rehabilitation).

46. Based on the findings of fact herein, Mrs. Comas

failed to establish that she is rehabilitated even though it has

been almost 10 years since the acts underlying the revocation of

her mortgage broker's license were committed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Office of Financial

Regulation enter a final order denying the application of

Marta Comas for licensure as a mortgage broker pursuant to

Section 494.0033(4), Florida Statutes, for the acts specified in

u)2.,

Florida Statutes.

DONE AND ENTERED this 27th day of February, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of February, 2009.

ENDNOTES

1 / All references herein to the Florida Statutes are to the 2008

edition except as otherwise noted.

2 / Respondent's Exhibit N, Office of Financial Regulations

Interrogatories to Marta Comas and Response to the Office of

Financial Regulation's Interrogatories, number 11.

3 / According to Mrs. Comas's answers to the Office's

interrogatories, in settlement of two trademark infringement

actions, RPM Lenders and a business named RPM Loans and Realty,

Inc., agreed not to use the name "RPM." See Respondent's

Exhibit N, Office of Financial Regulations Interrogatories to

Marta Comas and Response to the Office of Financial Regulation's

Interrogatories, number 3.

4 / Respondent's Exhibit N, Office of Financial Regulations

Interrogatories to Marta Comas and Response to the Office of

Financial Regulation's Interrogatories, number 11; Transcript at

page 35. It is noted, however, that it is difficult to

reconcile Mrs. Comas's testimony regarding the various companies

operating under the name "RPM" and her answers to

interrogatories regarding the dates of her employment with one

or the other company.

5 / Mrs. Comas testified at the final hearing that money was

entrusted to her in her capacity as a real estate associate. In

a footnote to paragraph 24 of its Proposed Recommended Order,

the Office observed that this was "unusual", and it cited to

Section 475.42(1)(d), Florida Statutes, which provides: "A

sales associate may not collect any money in connection with any

real estate brokerage transaction, whether as a commission,

deposit, payment, rental, or otherwise, except in the name of

the employer and with the express consent of the employer."

Mrs. Comas's testimony was, however, uncontroverted; the Office

did not present any evidence to establish that Mrs. Comas acted

in contravention of the prohibition in Section 475.42(1)(d),

Florida Statutes.

6 / Respondent's Exhibit H.

7 / Transcript at pages 48.

8 / See Respondent's Exhibit E.

COPIES FURNISHED:

Robert H. Schott, Esquire

Office of Financial Regulation

Post Office Box 8050

Tallahassee, Florida 32314-8050

O. Frank Valladares, Esquire

Law Offices of O. Frank Valladares & Associates

3147 49th Street North

St. Petersburg, Florida 33710

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

Daniel Sumner, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399-0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.