15-002703 Office Of Financial Regulation vs. Frankie Damiano Status: Closed Recommended Order on Tuesday, July 21, 2015.

Summary: Petitioner did not demonstrate by clear and convincing evidence that Respondent's actions necessitated an emergency suspension of her loan originator's license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF FINANCIAL REGULATION,

Petitioner,

vs. Case No. 15 - 2703

FRANKIE DAMIANO,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case ca me before Administrative Law

Judge J. Bruce Culpepper of the Division of Administrative

Hearings on J une 4, 2015, by video teleconference at sites in

Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Jennifer Leigh Blakeman, Esquire

Office o f Financial Regulation

400 West Robinson Street , Suite S - 225

Orlando, Florida 32801 - 1718

For Respondent: Frankie Damiano

3248 Meadow Run Drive

Venice, Florida 34293 - 1426

STATEMENT OF THE ISSUE S

The issues in this matter are w hether Respondent poses an

immediate, serious danger to the public health, safety, or

welfare, and, if so, whether Petitioner has cause to immediately

suspend Respondent ' s loan originator license.

PRELIMINARY STATEMENT

On April 8, 2015, Petitioner , Office of Financial Regu lation

( " Office " ) , issued an Emergency Order to Cease and Desist and

Suspending License ( " Emergency Order " ) against Respondent , Frankie

Damiano ("Respondent") . The Office issued the Emergency Order

pursuant to section s 120.60(6) and 494.00255(8), Florida Statutes

(2014) . 1/

Respondent timely exercised her right to be heard in a

formal administrative proceeding pursuant to chapter 120. On

May 14, 2015, the Office referred the matter to the Division of

Administrative Hearings. The matter was assigned to t he

undersigned A dministrative Law Judge.

The final hearing took place on June 4, 2015. The Office

called Respondent to testify. The Office ' s Exhibits 1 through 4

were received in evidence. Respondent called one witness, Eileen

Keim. Respondent also te stified on her own behalf. Respondent

offered Exhibits 1 2/ and 2 , which are admitted into evidence.

The final hearing T ranscript was filed on June 19, 2015.

Following that date, each party submitted proposed recommended

orders and post - hearing submittals in accordance with the deadline

established at the conclusion of the final hearin g .

FINDING S OF FACT

1. At all times relevant to this case, Respondent was

licensed with the Office to conduct business as a loan originator

in the S tate of Florida. Responde nt holds certificate of

licensure NMLS No. LO19773.

2. As a loan originator in Florida, Respon dent is governed

by chapter 494 .

3. The Office is the state a g ency charged with licensing,

regulating, and supervising loan originators in Florida pursuant

to chapter 494 .

4. On March 24, 2015, Respondent was arrested for the

following crimes by the Sarasota County Sheriff ' s Office:

a. Occupied Burglary -- pursuant to section

810.02(2 )(a), Florida Statutes, 3 / a first - degree

felony;

b. Battery on a person 6 5 years or old er --

pursuant to section 784.08 (2)(c), Florida Statutes, 4 /

a third - degree felony; and

c. Simple Battery (two counts) -- pursuant to

section 784.03(1)( a)1., 5 / first - degree misdemeanors.

5. On May 12, 2015, Respondent was charged with these

crim es in Sarasota County, Florida, in Case

N o. 2015 - CF - 004817 - NC. Respondent ' s criminal case is

currently pending disposition in Sarasota County.

6. At the final hearing, Respondent described her actions

which led to her arrest on March 24, 2015. 6 / The inc ident began

with a dispute over money. According to Respondent, an

individual allegedly stole $258.00 from Respondent ' s friend who

was staying at her house. Respondent, together with the friend

and three other individuals, drove to the suspected thief ' s house

to demand the money ' s return.

7. Upon arrival at the house, Respondent walked up to and

knocked on the front door. Two individuals, the suspect ed thief

and the suspect ed thief ' s mother, answered. The confrontation

quickly became physical. Respo ndent claims that the suspect ed

thief ' s mother started the fight by jumping on her from out of

the front door. Rapidly, upwards of five individuals were

involved in hitting, pushing, tackling, and wrestling. The scrum

ranged from the front door to the ho use ' s garage. Respondent

recounted that she was battered, punched, slammed to the ground,

and beaten with a cane. (The cane - wielder was the suspect ed

thief ' s grandfather , who is over 65 years old , which apparently

led to Respondent ' s felony charge of bat tery on a person 65 years

or older.) Respondent claimed she suffered injuries to her chin,

neck, heart, and scalp.

8. At the final hearing, Respondent testified that she did

not enter the suspect ed thief's home. However, Respondent did

admit that at som e point during the encounter, she enter ed the

open garage with the intent to access the house through the side

door. (This action evidently led to Respondent ' s felony charge

of burglary.)

9. Eventually, the Sarasota County Sheriff ' s Office was

called and responded. The fight broke up. No serious injuries

were reported. No information was presented regarding the fate

of the $258.00.

10. Respondent testified that she did not start the fight.

She claimed that because of her small frame, she was never a

serious danger to anyone. Nevertheless, the Sarasota County

Sheriff indisputably arrested Respondent for her alleged role in

the altercation.

11. As of the date of the final hearing, Respondent

underst ood that she will have a court date in August 2015 f or the

pending criminal case .

12. Based on Respondent ' s arrest, on April 8, 2015, the

Office issued the Emergency Order. The Office issued the

Emergency Order pursuant to section s 120.60(6) and 494.00255(8).

The Emergency Order states that the Office f ound Respondent ' s

activities posed an immediate and serious danger to the public

welfare. The Emergency Order ordered Respondent to immediately

cease and desist from engaging in the business of loans and any

activities in violation of chapter 494 and Offi ce rules.

13. Through the Emergency Order, the Office suspended

Respondent ' s loan originator ' s license , effective April 13, 2015.

Respondent ' s loan originator license is suspended " until such

time as [Respondent] complies with the terms of this order. "

14. As described in the Emergency Order, the Office

determined that Respondent ' s actions that led to her arrest posed

an immediate, serious danger to the public based on several

factors. The Emergency Order declares that the Office found that

an emerge ncy suspension and a cease and desist order was

necessary to protect Florida consumers from Respondent ' s

" apparent unpredictable and irrational behavior. " Furthermore,

Respondent ' s " apparent volatility, unpredictability, and lack of

impulse control " calls into question her " trustworthiness and

character. " The Emergency Order also states that " [c]ommitting

felony battery over a financial matter demonstrates that

Respondent lacks the character or general fitness necessary to

command the confidence of the co mmunity. " To emphasi ze the

seriousness of the alleged crimes, the Office points to the fact

that the felony burglary charge carries a possible maximum

penalty of life in prison.

15. The Office included provisions and terms in the

Emergency Order to meet t he fairness requirement of section

120.60(6). The Emergency Order contain ed detailed factual

findings in order to adequately notify Respondent of the basis

for the Office ' s intended action. The Emergency Order include d a

Notice of Rights which provided R espondent the point of entry to

request an expedited administrative hearing pursuant to

chapter 120 to contest the Emergency Order (which Respondent

pursued in the present matter). The Emergency Order also

informed Respondent of her opportunity to seek to stay the

Office ' s action through an appellate proceeding under

section 120.68. Further, the Emergency Order stated that

Respondent ' s loan originator ' s license is subject to

reinstatement , if the criminal charges are ultimately dismissed

or not prosecuted .

16. At the final hearing, Respondent conceded that she made

the wrong decision to confront the suspected thief. She

expressed that she was not thinking clearly at the time.

Nevertheless, Respondent asserts that she is falsely accused and

has done nothi ng wrong. She pleads to keep her license during

the time it takes Sarasota County to process her criminal case.

Respondent proclaims that she should be considered and treated as

innocent of all charges up to and until such time as the

allegations against her are proven. Respondent asserts that her

loan origination business is her sole source of financial

support.

17. Based on the facts produced at the final hearing and

further discussed below, the undersigned finds that the Office

has not met its burde n of demonstrating by clear and convincing

evidence that immediately suspending Respondent ' s license to

conduct business as a loan originator is an action " necessary to

protect the public interest , " as required by section

120.60(6)(b).

CONCLUSIONS OF LAW

1 8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.5 69, 120.57(1), and

120.60(6)(c) .

19. " Loan originator " means an individual who, directly or

indirectly, soli cits or offers to solicit a mortgage loan,

accepts or offers to accept an application for a mortgage loan,

negotiates or offers to negotiate the terms or conditions of a

new or existing mortgage loan on behalf of a borrower or lender,

or negotiates or offe rs to negotiate the sale of an existing

mortgage loan to a non - institutional investor for compensation or

gain pursuant to section 494.001(17).

20. A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license , is penal in n ature.

State ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to impose the immediate suspension

and cease and desist order in this matter, the Office must prove

the charges against Respondent by clear and convincin g evidence.

Dep ' t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne

Stern & Co . , 670 So. 2d 932, 93 3 - 34 (Fla. 1996) (citing Ferris v.

Turlington , 510 So. 2d 2 9 2, 294 - 95 (Fla. 1987)); Nair v. Dep ' t of

Bus. & Prof ' l Reg., Bd. of Med . , 654 So. 2d 20 5, 207 (Fla. 1st

DCA 1995).

21. I n Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the court developed a " workable definition of clear

and convincing evidence " and found that of necessity , such a

definition would need to contain " both qualita tive and

quantitative standards. " The court held that:

[C] lear and convincing evidence requires that

the evidence must be found to be cr e dible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and expli cit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Id. The Florida Supreme Court later adopted the Slomowitz

court ' s description of clear and convincing evidence. S ee In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal also has followed the Slomowitz test, ad ding the

interpretive comment that " [a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc . , 590 So. 2d 986, 988 (Fla. 1st DCA 19 91),

rev. denied , 599 So. 2d 1279 (Fla. 1992) (citation omitted).

22. The statutes under which the agency seeks to act " must

be construed strictly in favor of the one against whom the

penalty would be imposed. " Munch v. Dep ' t of Prof ' l Reg., Div.

of Rea l Estat e , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see

also Camejo v. Dep ' t of Bus. & Prof ' l Reg . , 812 So. 2d 583,

583 - 84 (Fla. 3d DCA 2002); and McClung v. Crim. Just. Stds.

& Training Comm ' n , 458 So. 2d 887, 888 (Fla. 5th DCA 1984)

( " [W]here a statute provides for revocation of a license the

grounds must be strictly construed because the statute is penal

in nature. " ) .

23. Pursuant to section 120.60 and chapter 494, the Office

may take action to suspend a loan originator ' s license , if the

Office has rea son to believe that a licensee poses an immediate,

serious danger to the public health, safety, or welfare.

24. Section 120.60 sets forth the conditions under which an

agency may issue an emergency suspension of a license. Section

120.60(6) states:

(6) I f the agency finds that immediate

serious danger to the public health, safety,

or welfare requires emergency suspension,

restriction, or limitation of a license, the

agency may take such action by any procedure

that is fair under the circumstances if:

(a) The procedure provides at least the same

procedural protection as is given by other

statutes, the State Constitution, or the

United States Constitution;

(b) The agency takes only that action

necessary to protect the public interest

under the emergency procedure; and

(c) The agency states in writing at the time

of, or prior to, its action the specific

facts and reasons for finding an immediate

danger to the public health, safety, or

welfare and its reasons for concluding that

the procedure used is fair under the

circumstances. The agency ' s findings of

immediate danger, necessity, and procedural

fairness are judicially reviewable. Summary

suspension, restriction, or limitation may be

ordered, but a suspension or revocation

proceeding pursuant to ss. 12 0.569 and 120.57

shall also be promptly instituted and acted

upon.

25. Section 494.00255 sets forth the Office ' s powers and

duties regarding persons licensed under chapter 494. Section

494.00255(8) specifically addresses the Office ' s ability to

suspend a license and states:

(8) Pursuant to s. 120.60 (6), the office may

summarily suspend the license of a loan

originator, mortgage broker, or mortgage

lender if the office has reason to believe

that a licensee poses an immediate, serious

danger to the public ' s health, safety, or

welfare. The arrest of the licensee, or the

mortgage broker or the mortgage lender ' s

control person, for any felony or any crime

involving fraud, dishonesty, breach of trust,

money laundering, or any other act of moral

turpitude is de emed sufficient to constitute

an immediate danger to the public ' s health,

safety, or welfare. Any proceeding for the

summary suspension of a license must be

conducted by the commissioner of the office,

or designee, who shall issue the final

summary order.

26. The Office issued the Emergency Order to summarily

suspend Respondent ' s loan originator ' s license and order her to

immediately cease and desist from the business of originating

loans under its authority in section 494.00255(8). The Office ' s

action u nder section 494.0025 5 (8) must comply with the terms in

section 120.60(6).

27. According to section 120.60(6), in order to suspend

Respondent ' s license, the Office must first find that " immediate

serious danger to the public health, safety, or welfare re quires

emergency suspension, restriction, or limitation of a license. "

The Office clearly made such a finding regarding Respondent ' s

license. Pursuant to section 494.00255(8), " [t]he arrest of the

licensee . . . for any felony or any crime involving frau d,

dishonesty, breach of trust, money laundering, or any other act

of moral turpitude is deemed sufficient to constitute an

immediate danger to the public 's health, safety, or welfare. "

Respondent was indisputably arrested for the felonies of occupied

bur glary under section 810.02(2)(a) and b attery on a person

65 years or older under section 784.08(2)(c). Accordingly,

section 494.00255(8) specifically authorizes the Office to find

that Respondent ' s arrest constitutes an immediate serious danger

to the pub lic health, safety, or welfare.

28. Upon finding an immediate serious danger to the public

health, safety, or welfare, section 120.60(6) authorizes the

Office to take such action " that is fair under the

circumstances , " if that action meets the requirements under

sections 120.60(6)(a), (b), and (c).

29. Section 120.60 (6) (a) requires the Office to follow a

process that provides the " same procedural protection as given by

other statutes, the State Constitution, or the United States

Constitution. " Section 12 0.60(6) does not elucidate what

specific procedural protections the agency ' s action must provide.

However, in seeking to immediately suspend Respondent ' s license,

the Office did include in the Emergency Order sufficient

procedural protections to ensure th at Respondent was afforded

adequate opportunity to contest the Office ' s determination. See

e.g. , Premier Travel Int ' l, Inc. v. State Dep ' t of Agric.

& Consumer Servs. , 849 So. 2d 1132, 1137 (Fla. 1st D CA 2003)

(holding that to satisfy due process requirem ents, an immediate

final order issued pursuant to section 120.60 prior to a hearing

must contain factual allegations demonstrating : ( 1) the conduct

complained of was likely to continue ; ( 2) the order was necessary

to stop the emergency ; and ( 3) the order was sufficiently

tailored to be fair. The court further stated that the " fairness

requirement " is met if the order provides for an administrative

hearing.) . The Office ' s Emergency Order contained specific

allegations of Respondent ' s alleged misconduct. The Emergency

Order also provided Respondent the opportunity for an expedited

hearing through an administrative proceeding under chapter 120.

In addition, the Emergency Order notified Respondent of her

ability to seek to stay the Office ' s intended suspens ion by

applying to the Office in a proceeding for appellate review under

section 120.68.

30. Jumping to section 120.60(6)(c), the Office also stated

in writing the reasons for its finding of immediate danger , as

well as its reasons for concluding that the procedure it used is

fair. The Emergency Order clearly articulates the specific

reasons for the Office ' s action (Respondent ' s felony arrest on

March 24, 2015), the Office ' s reasons for finding immediate

danger to the public health, safety, or welfare (the Office ' s

statutory presumption that a felony arrest is deemed sufficient

to constitute an immediate danger), and the Office ' s reasons for

concluding that the procedure used i s fair under the

circumstances. The Office also represents that it will rescind

the Emergency Order , if the criminal charges against Respondent

are dropped.

31. Regarding section 120.60(6)(b), however, b ased on the

evidence produced at the final hearing, the Office failed to

demonstrate by clear and convincing evidence that suspendi ng

Respondent ' s loan originator ' s license and ordering her to cease

and desist from any further loan origination business until such

time as her criminal allegations are resolved , is " necessary to

protect the public interests. " The Office, as instructed b y

section 120.60(6)(c), wrote in the Emergency Order the specific

facts and reasons for finding an " immediate danger to the public

health, safety, or welfare. " These reasons include:

a. One of the felonies for which Respondent was

arrested carries a maxi mum penalty of life in prison;

b. Suspension of Respondent ' s license is

necessary to protect consumers from Respondent ' s

" apparent, unpredictable and irrational behavior " ;

c. Respondent ' s " apparent volatility,

unpredictability, and lack of impulse contro l calls

into question her trustworthiness and character " ; and

d. Committing felony battery over a financial

matter " demonstrates that Respondent lacks the

character or general fitness necessary to command the

confidence of the community. "

32. These state d reasons, however, even supplemented with

the facts regarding the circumstances of the arrest, do not

establish by clear and convincing evidence that immediately

suspending Respondent ' s loan originator ' s license during the

pendency of her criminal case is " action necessary to protect the

public interest. " The Office has not presented sufficient

evidence demonstrating that because of her arrest, Respondent ' s

continued participation in the loan origination business exposes

the public to the risk of another serious altercation.

Consequently, the undersigned cannot find, " without hesitancy, "

that Respondent ' s arrest on March 24, 2015 , creates a threat that

necessitates the Office immediately suspend ing Respondent ' s

license to protect the public interests or t he public health,

safety, or welfare.

33. The Office essentially asserts that the March 24, 2015 ,

confrontation that resulted in the felony arrest shows that

Respondent is irrational, unpredictable, and volatile. The

Office is concerned that Respondent ca nnot properly manage her

stress and anger. Consequently, the Office fears that

Respondent ' s arrest shows that she is a danger to her clients and

the public.

34. However, based on the evidence presented in the final

hearing, this incident appears to be a o ne - time conflict. The

Office did not produce any evidence of the likelihood that this

type of " backyard brawl " will happen again. The Office did not

produce evidence of prior or subsequent violent actions involving

Respondent. Respondent ' s alleged crime was not random. The

Office did not offer evidence that Respondent maintains a

dangerous or threatening mental state following this incident.

More specifically, the Office did not show that Respondent has

assaulted or threatened her loan origination clie nts or that

Respondent ' s possession and use of her loan originator ' s license

has actually exposed her clients to risk of bodily harm. In

other words, the Office has not provided clear and convincing

evidence that Respondent will likely continue to create a pattern

of violent conduct that the Office must stop in order to prevent

further harm to the public. See e.g. , Premier Travel , 849 So. 2d

at 1135 ( wherein the court, in determining whether an immediate

final order issued prior to a hearing demonstrated immediate

danger, necessity, or procedural fairness, considered whether the

" pattern of conduct " was likely to continue ) ; Kodsy v. Dep ' t of

Fin. Serv. , 972 So. 2d 999, 1002 (Fla. 4th DCA 2008) ( wherein the

court expressed that an immediate final order must contain

factual allegations demonstrating that the " complained of conduct

was likely to continue " ) ; and Witmer v. Dep ' t of Bus. & Prof 'l

Reg. , 631 So. 2d 338, 343 (Fla. 4th D CA 1994) ( " Past acts may be

sufficient to allege a danger of future misconduct if the conduct

alleged is sufficiently serious and is likely to be repeated. " ) .

35. Further, the Office did not produce any evidence that

Respondent has misused her loan originator ' s license or otherwise

threatened the financial or personal welfare of her clients. The

March 24, 2015 , arrest did not involve a dispute with a client.

The arrest did not involve a dispute regarding Respondent ' s loan

originator ' s business. The Office did not produce any complaints

from Respondent ' s clients that involved v iolence, assault,

battery, or burglary. The Office did not produce any evidence

that Respondent was previously disciplined by the Office. The

Office did not provide evidence of any previous abuse of

Respondent ' s loan originator ' s license , such as the mis conduct

listed in section 494.00255(1) involving crimes of fraud,

dishonesty, breach of trust, money laundering, misrepresentation,

concealment, failure to disburse funds, misappropriation of

personal property, negligence, or incompetence.

36. T he Office ' s allegations questioning Respondent ' s

character, general fitness, and trustworthiness are merely

conclusory concern s of harm. The Office did not produce evidence

that Respondent ' s actions , which led to the March 24, 2015 ,

arrest , actually create d a thre at to future clients or will

otherwise negatively affect any other area over which the Office

regulates. The Office did not present evidence that Respondent ' s

clients or the general public is at a greater risk now than prior

to the March 24, 2015 , alterca tion. Accordingly, the evidence

does not demonstrate that immediately suspending Respondent ' s

loan originator ' s license is necessary to protect the public

interests from future malfeasance involving Respondent.

37. Therefore, although the Office clearly f inds

unacceptable the crimes for which Respondent was arrested, the

Office has not clearly and convincingly proven that immediately

suspending Respondent ' s loan originator license, prior to the

disposition of the criminal case, is necessary to protect the

public interests. Similarly, an immediate suspension of

Respondent ' s license based solely on allegations contained in the

police report does not appear " fair under the circumstances. " 7 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is RECOMMENDED that Petitioner, Office of Financial

Regulation , enter a final order rescinding the Emergency Order to

Cease and Desist and Suspending License issued to Respondent ,

Frankie Damiano, on April 8, 2015.

DONE AND ENTERED this 21st d ay of July , 2015 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of July , 2015 .

ENDNOTE S

1/ All statutory references are to Florida Statutes (2014),

unless otherwise noted.

2 / Respo ndent presented Exhibit 1 at the hearing from the video

site in Orlando, Florid a, which she represented to be an

affidavit of Joanne Wieleba. The undersigned admitted

Respondent's Exhibit 1 into evidence. However, Respondent never

submitted a copy of Exh ibit 1 to the undersigned.

3 / Section 810.02, Florida Statutes , reads :

Burglary. --

(1)(a) For offenses committed on or before

July 1, 2001, " burglary " means entering or

remaining in a dwelling, a structure, or a

conveyance with the intent to commit an

offense therein, unless the premises are at

the time open to the public or the defendant

is licensed or invited to enter or remain.

* * *

(2) Burglary is a felony of the first

degree, punishable by imprisonment for a term

of years not exceeding lif e imprisonment or

as provided in s. 775.082 , s. 775.083 , or

s. 775.084 , if, in the course of committing

the offense, the offender:

(a) Makes an assault or battery upon any

person

4 / Section 784.08, Florida Statutes , reads :

Assault or battery on perso ns 65 years of

age or older ; reclassification of offenses ;

minimum sentence. --

(1) A person who is convicted of an

aggravated assault or aggravated battery

upon a person 65 years of age or older shall

be sentenced to a minimum term of

imprisonment of 3 y ears and fined not more

than $10,000 and shall also be ordered by

the sentencing judge to make restitution to

the victim of such offense and to perform up

to 500 hours of community service work.

Restitution and community service work shall

be in addition to any fine or sentence which

may be imposed and shall not be in lieu

thereof.

(2) Whenever a person is charged with

committing an assault or aggravated assault

or a battery or aggravated battery upon a

person 65 years of age or older, regardless

of whether he or she knows or has reason to

know the age of the victim, the offense for

whi ch the person is charged shall be

reclassified as follows:

* * *

(c) In the case of battery, from a

misdemeanor of the first degree to a felony

of the third degree.

5 / Section 784.03, Florida Statutes , reads:

Battery; felony battery. --

(1)(a) T he offense of battery occurs when a

person:

1. Actually and intentionally touches or

strikes another person against the will of

the other; or 2. Intentionally causes bodily

harm to another person.

6 / The underlying facts which led to Respondent ' s arres t are

based primarily on Respondent ' s sworn testimony at the final

hearing. The undersigned admitted into evidence the Sarasota

County Sheriff ' s Office ' s Probable Cause Affidavit as a public

record exception to the hearsay rule pursuant to section

90.803( 8), Florida Statutes. The Probable Cause Affidavit

conclusively establishes that Respondent was arrested on March 24,

2015. The undersigned also reviewed certain portions of the

Probable Cause Affidavit to supplement and explain Respondent ' s

testimony as authorized under section 120.57(1)(c) and Florida

Administrative Code R ule 28 - 106.213. However, the undersigned did

not consider witness statements and testimony collected within the

Probable Cause Affidavit that were not corroborated by

Respondent ' s tes timony or other evidence. " Arrest affidavits are

' not admissible into evidence as a public record exception to the

hearsay rule. ' " Lewis v. State , 995 So. 2d 1123, 1125 (Fla. 4th

D CA 2008) ( quoting Burgess v. State , 831 So. 2d 137, 140 (Fla.

2002) ) .

7 / The undersigned notes that the Emergency Order e xpressly

points out that should Respondent actually be convicted of the

felony charges, it may pursu e revised sanctions against

Respondent at a subsequent administrative proceeding.

COPIES FURNISHED:

Drew J. Breakspear, Commissioner

Office of Financial Regulation

200 East Gaines Street

Tallahassee, Florida 32399 - 0350

(eServed)

Colin M. Roopnarine, General Counsel

Office of Financial Regulation

The Fletcher Building, Suite 118

200 East Gaines Street

Tallahassee, Florida 32399 - 0370

(eServed)

Frankie Damiano

3248 Meadow Run Drive

Venice, Florida 34293 - 1426

(eServed)

Jenny Alderman Salvia, Esquire

Office of Financial Regulation

Suite 615

1313 North Tampa Street

Tampa, Florida 33602 - 3328

(eServed)

Jennifer Leigh Blakeman, Esquire

Office of Financial Regulation

Suite S - 225

400 West Robinson Street

Orlando, Florida 32801 - 1718

(eServed)

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.