16-000214 Office Of Financial Regulation vs. Moctezuma Envios, Inc., And Liliana Carrascal Status: Closed Recommended Order on Wednesday, June 22, 2016.

Summary: Petitioner proved, by clear and convincing evidence, that Respondents did not maintain their own account at a federally insured financial institution. Recommend $4,250 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF FINANCIAL REGULATION ,

Petitioner,

vs. Case No. 1 6 - 0214

MOCTEZUMA ENVIOS, INC. , AND

LILIANA CARRASCAL,

Respondent s .

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2015), before

Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the

Division of Administrative Hearings ("DOAH"), on May 2 , 2016, by

video teleconfer ence at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jennifer Leigh Blakeman , Esquire

O ffice of Financial Regulation

400 West Robinson Street, Suite S - 225

Orlando , Florida 32801

For Respondent: Eric Arthur Falk , Esquire

Falk & Falk , P.A.

17190 Royal Palm Boulevard , Suite 2

Weston , Florida 33 326

STATEMENT OF THE ISSUE

Whether Respond ents fail ed to maintain and deposit payment

instruments into their own commercial account in a federally -

insured financial institution, in violation of section

560.309(3), Florida Statutes (2013). 1/

PRELIMINARY STATEMENT

On or about July 8, 2015, Petitioner, Office of Financial

Regulation, issued an Administrative Complaint against

Respondents, Moctezuma Envios, Inc. , and Liliana Carrascal,

alleging that they had violated section 560.309 (3) by failing to

maintain and deposit payment instruments in their own commercial

a ccount in a federally - insured financial institution , and

proposing to fine Respondents $7,500 . Respondent s timely

challenge d Petitioner's proposed action . On January 14, 2016,

Petitioner referred the matter t o DOAH for assignment of an ALJ

to conduct a hearing pursuant to sections 120.569 and 120.57(1).

The final hearing initially was scheduled for March 8,

2016, but pursuant to Petitioner's motion, was continued until

May 2, 2016.

The final hearing was held on May 2, 2016. Petitioner

presented the testimony of Sharon Dawes, Kelly Knopps, Phillip

Salter, Andrew Grosmaire, and Respondent Liliana Carrascal . 2/

Petitioner ' s Exhibits 1, 4b, 5, 6, 7, 8, and 9 were admitted

into evidence without objection, and Petitioner's Exhibit 4a was

admitt ed over a relevancy objection. The undersigned took

official recognition of Florida Administrative Code

Rule 69V - 560.1000. Respondent s presented the testimony of

Liliana Carrascal , and Respondents' Exhibit 1 was admitted into

evidence without objection .

The two - volume Transcript of the final hearing was filed at

DOAH on May 19, 2016. Pursuant to Petitioner 's request , the

deadline for fil ing proposed recommended orders was extended to

June 6, 2016 . Both parties' proposed recommended orders were

timely filed and duly considered in preparing this Recommended

Order.

FINDINGS OF FACT

I. The Parties

1. Petitioner, Office of Financial Regulation, is the

state agency charged with administering and enforcing

chapter 560, Florida Statutes, including part III of that

statute, related to m oney services businesses.

2. Respondent , Moctezuma Envios, Inc. ( " Moctezuma

Envios " ) , is a Florida corporation operat ing as a money services

business , cashing checks and acting as a money transmitter , as

authorized by License No. FT30800203 issued by Petitioner . Its

address of record is 19784 Southwest 177th Street, Miami,

Florida 3318 7.

3 . Respondent Liliana Carrascal has a 100 percent

controlling interest in, and is the sole officer of , Moctezuma

Envios . 3/

II. The Events Giving Rise to this P roceeding

4 . Respondent s have been in the money services business,

and Moctezuma Envios has been licensed to conduct this business,

since 2001.

5. Respondents were doing business with Intermex Wire

Transfer LLC ( " Intermex " ), a money transfer services business,

before the events giving rise to this proceeding.

6 . Sometime prior to January 2013 , Carrascal was

approached by representatives of Intermex about opening an

account in the name of Moctezuma Envios at U.S. Bank. 4/ Intermex

representatives told Carrascal that the account could be used

for depositing the checks that Moctezuma Envios cashed and also

for paying Intermex for money transfers.

7 . According to Carrascal, this offe r was attractive to

Respondents because U.S. Bank accepted third - party checks, and

opening a check - cashing account that accepts such checks is

difficult. Additionally, having the account would streamline

the process by which Moctezuma Envios paid Intermex to serve as

its money transmitting agent , and would enable Carrascal to

avoid driving across town carrying large sums of money to

deposit cash into Intermex's account.

8 . Carrascal testified , credibly, that Intermex

representatives told her she would be the owner of the account ,

that she could deposit payment instruments into and withdraw

funds from the account, and that the account would be compliant

with the law.

9 . On the basis of the se representations, Carrascal

authorized Intermex representative s to open an account in the

name of Moctezuma Envios at U.S. B ank. T he account number was

XX3503 .

1 0 . The persuasive evidence shows that Account No. XX3503

was established as an agent account, with Moctezuma Envios

acting as a money transmitter agent for Intermex. As such,

Moctezuma Envios was authorized to deposit funds and payment

instruments into the account.

1 1 . Robert Lisy and Darryl J. Ebbe rt, both employees of

Intermex , were signatories on Account No. XX3503 , and, as such,

were the own ers of the account . T hey were authorized to deposit

funds into , withdraw funds from the account , and o therwise

control the account .

1 2 . The persuasive evidence further shows that R espondents

were not signatories to Account No. XX3503 . 5/ Accordingly, they

were not authorized to withdraw funds from the account.

1 3 . During the period spanning from January 2013 to late

2014 , Respondent s deposited payment instruments received through

their check - cashing business into Account No. XX 3503 .

1 4 . The persuasive evidence shows that once Respondents

deposited the payment instruments into Account No. XX3503, they

lost access to and control of those funds. This is because, as

noted above, only Intermex representatives were authorized

signatories on the account.

15 . W hen Respondents deposited payment instruments into

Account No. XX3503 , those funds were thereafter " swept " into

Acco unt No. XX7788, which was Intermex 's main operating account

at U.S. Bank . This means that the funds were removed from

Account No. XX3503 and deposited in Account No. XX7788.

1 6 . Respondents were not signatories to A ccount

N o. XX7788, so did not have access to the funds in th at account.

17. As a result of Respondents not being signatories on

either Account No. XX3503 or Account No. XX7788, once they

deposited payment instruments into Account No. XX3503 , they lost

access to and control of the funds paid under those payment

instruments .

18. The persuasive evidence establishes that Respondents

deposited approximately ten percent of the payment instruments

that they received from their check cashing business into

Account No. XX3503 during the timeframe pertinent to this

proceeding . The other payment instruments were deposited into

other accounts that Respondents held at other banks.

19. Carrascal credibly testified that when Intermex first

approached her about opening an account a t U.S. Bank , she was

concerned because she knew that the law required payment

i nstruments to be deposited into the business's own commercial

account . Thus, she declined to open such account. When

Intermex representatives approached her a second time, they told

her that the account would be in the name of Moctezuma Envios

and assured her that Moctezuma Envios would be in compliance

with the law. She believed them, so authorized them to open

Account No. XX3503.

20 . Carrascal further testified, credibly and

persuasively , that as soon as she received notice that

Petitioner believed that Account No. XX3503 did not com ply with

the law, she closed th e account and ceased doing business with

Intermex and U.S. Bank.

2 1 . The credible, persuasive eviden ce establishes that

Respondents did not attempt to conceal any information or

mislead Petitioner regarding Account No. XX3503.

2 2 . Carrascal credibly and persuasively testified that she

had intended to fully comply with the law . She had received

training in order to serve as Moctezuma Envios' compliance

of ficer, and Moctezuma Envios has a legal compliance manual in

place to help ensure that it complies with applicable laws.

2 3 . The evidence establishes that Moctezuma Envios has

been disciplined twice for previous violations of applicable

laws. Specifically, some time prior to December 2008, Moctezuma

Envios failed to file currency transaction reports concerning

cash received from another chapter 560 licensee and failed to

timely file at least two quarterly reports , as required by

statute and rule. In 2011, Moctezuma Envios failed to timely

file a required quarterly report. Both violations were resolved

pursuant to Stipulation and Consent Agreement between Petitioner

and Moctezuma En vios, under which Moctezuma Envios paid fines

and agreed to comply with the law in the future.

2 4 . Carrascal acknowledged that the violations had

occurred, but testified, credibly, that in both instances,

Respondents had not intended to violate the law , and that

Respondents had cooperated with Petitioner to rectify the

circumstances that had resulted in noncompliance.

2 5 . Petitioner has adopted rule 69V - 560.1000 , which

codifies a penalty matrix that authorizes and enables Petitioner

to impose a fine for a specific statutory or rule violation ,

based on the level of fine adopted in rule 69V - 560.1000(150) and

the number of times a licensee has violated that particular

statute or rule .

2 6 . Rule 69V - 560.1000(150) establishes a range of $1,000

to $3,500 for a Level A fine; $3,500 to $7,500 for a Level B

fine; and $7,500 to $10,000 for a Level C fine.

27. Here, Responde nts are charged with having violated

section 560.309(3) for the first time. Pursuant to

rule 69V - 560.1000(85), Respon dents are subject to a Level B

fine , which ranges from $3,500 to $7,500 .

2 8 . Rule 69V - 560.1000(148) sets fort h the factors , which

Petitioner characterizes as "aggravating" or "mitigating," that

must be considered in determining the specific amount of the

fine within the ranges established in rule 69V - 560.1000(150).

2 9 . Rule 69V - 560.1000(148) states:

In accordance with Sections 560.1141(2)

and (3), F.S., the Office shall consider the

following cir cumstances in determining an

appropriate penalty within the range of

penalties prescribed in this rule for each

violation as based upon the citation number.

The Office also shall consider these

circumstances in determining a penalty that

deviates from the range of penalties

prescribed for each violation and citation

number as a result of such circumstances:

(a) Whether the violation rate is less than

5% when compared to the overall sample size

reviewed;

(b) The degree of harm to the customers or

the public;

(c) The disciplinary history of the

licensee;

(d) Whether the licensee detected and

voluntarily instituted corrective responses

or measures to avoid the recurrence of a

violation prior to detection and

intervention by the Office;

(e) Whether the licenseeÓs violation was

the result of willful misconduct or

recklessness;

(f) Whether at the time of the violation,

the licensee had developed and implemented

reasonable supervisory, operational or

technical procedures, or controls to avoid

the viol ation;

(g) Where the violation is attributable to

an individual officer, director, responsible

person, or authorized vendor, whether the

licensee removed or otherwise disciplined

the individual prior to detection and

intervention by the Office;

(h) Whe ther the licensee attempted to

conceal the violation or mislead or deceive

the Office;

(i) The length of time over which the

licensee engaged in the violations;

(j) Whether the licensee engaged in

numerous violations or a pattern of

misconduct;

(k) T he number, size and character of the

transactions in question;

(l) Whether the licensee provided

substantial assistance to the Office in its

examination or investigation of the

underlying misconduct;

(m) Other relevant, case - specific

circumstances .

3 0 . Andrew Grosmaire, Chief for Petitioner's Bureau of

Enforcement, testified that Petitioner propose s to impose a

$7,500 fine on Respondents, and explained the basis for that

amount.

3 1 . Grosmaire testified that Petitioner did not have any

information regarding several of the factor s listed in

rule 69V - 560.1000, so did not " use " those factors in determining

the fine to be imposed on Moctezuma Envios . 6/ S pecifically,

Petitioner did not use the factors in subsections (a), (b), (d),

(e), (f), (g), (h), (i), (j), (l), and (m) in determining the

fine .

3 2 . Petitioner did consider subsection (c), regarding the

licensee's disciplinary history, in determining the fine. A s

discussed above, Petitioner presented evidence showing that

Moctezuma Envios had been disciplined twice for violations of

provisions of chapter 560 and implementing rules, albeit not for

the same violation that is the subject of this proceedi ng. 7/

Gro s maire noted that it was " unusual " for a licensee to have two

previous violations. Pe titioner thus considered Moctezuma

Envios' disciplinary history an aggravating factor in

determining the applicable fine.

3 3 . Petitioner also considered subsection (k), which

addresses the number, size, and character of the transactions in

question . According to Grosmaire, "100 percent of the checks

were deposited into this account during the period in question , "

so Petitioner considered this an aggravati ng factor in

determining the appropriate fine.

3 4 . As noted above, pursuant to rules 69V - 560.1000(85) ,

(147), and (148), Petitioner proposes to fine Respondents

$7,500 .

I II. Findings of Ultimate Fact Regarding Alleged Violation

3 5 . Florida case law holds that the determination of

whether alleged conduct violates a statute or rule is a question

of ultimate fact. Gross v. Dep't of Health , 819. So. 2d 997,

2002 (Fla. 5th DCA 2002); Langston v. Jamerson , 653 So. 2d 489,

491 (Fla. 1st SCA 1995).

3 6 . For the reasons discussed above , the undersigned finds

that the evidence clearly and convincingly establishes that

Respondents did not own Account No. XX3503 , into which payment

instruments from Moctezuma Envios' check - cashing business were

deposited .

3 7 . Although Respondents were able to deposit payment

instruments in to Account No. XX3503, they were not signatories

on the account so could not withdraw funds from that account .

Further, Respondents were not signatories to, and ther efore did

not have access to funds in , Account No. XX7788, into which

Intermex swept the funds from the deposited instruments in

Account No. XX3503 on a routine basis .

3 8 . On this basis, it is determined that Petitioner

demonstrated, by clear and convincing evidence, that Moctezuma

Envios and Liliana Carrascal , by virtue of being an affiliated

party pursuant to section 560.103(1), violated section

560.309(3) by failing to maintain and deposit payment

instruments into their own commercial account at a federally -

insured financial institution.

39 . As discussed above, Petitioner proposes to fine

Respondents $7,500, the maximum amount that can be imposed for a

Level B fine. Petitioner reached this amount taking into

account the factors set forth in rules 69V - 560.1000(148)(c) and

(k), which it considered to be aggravating factors that

militated imposition of a higher fine within the Level B range.

4 0 . As disc ussed above, Carrascal presented evidence

regarding several of the factors in rule 69V - 560.1000(148)

considered in determining the appropriate fine. Specifically,

Carrascal testified, persuasively, that no harm to her customers

or the public resulted from Respondents' violation of section

560.309(3) ; that Respondents' violation of the statute was

inadvertent and was the result of misrepresentation by Intermex ,

so that the violation was not the result of Respondents' willful

conduct or recklessness; that Moctezuma Envios has in place a

professionally - prepared compliance manual to help Respondents

avoid future violations, including the type of violation at

issue in this p roceeding; that once Carrascal became aware that

Petitioner believed Account No. XX3503 was noncompliant with

section 560.309(3), she cooperated fully with Petitioner's

investigation and did not attempt to conceal, mislead, or

deceive Petitioner; that as s oon as Carrascal became aware of

the noncompliance issues with Account No. XX3503, she closed the

account and Respondents terminated all business dealings with

U.S. Bank and Intermex, the latter with which Respondents had a

business relationship that preda t ed the matters giving rise to

this proceeding; and that the deposits into Account No. XX3503

constituted only approximately ten percent of the total deposits

Respondents made during the timeframe pertinent to this

proceeding, with the other 90 percent bei ng deposited in other

accounts at other financial institutions.

4 1 . As discussed above, the undersigned found Respondents'

evidence of mitigation regarding the factors set forth in rule s

69V - 560.1000(148)(b), (e), (f), (h), (k), and (l) credible and

persuasive. Further, the undersigned considers relevant that in

this case, Respondents affirmatively were mis led into violating

the law by Intermex. 8/

42. Petitioners did not present pers uasive countervailing

evidence rebutting the evidence of mitigation presented by

Respondents with respect to the amount of the fine .

43. As noted above, Grosmaire testified that Petitioner

considered subsections (c) and (k) as aggravating factors in

determining that Respondents should be fined $7,500. Rule 69V -

560.1000(148) does not specifically address how much weight each

factor should be assigned in determining the specific fine

within the authorized range, and Grosmaire did not explain how

the factors Petitioner " used " were weighed in arriving at the

$7,500 fine.

44. Considering the " aggravating " and " mitigating " factors

on which the parties presented evidence, the undersigned

determines that a $4, 5 0 0 fine should be imposed on Respondents

in this proceeding. 9/

CONCLUSIONS OF LAW

45 . DOAH has jurisdiction over the parties to, and subject

matter o f, this proceeding. §§ 120.569 and 120.57(1), Fla.

Stat.

46 . Section 560.114 (1) provides in pertinent part:

(1) The following actions by a money

services business, authorized vendor, or

affiliated party constitute grounds for the

issuance of a cease and desist order; the

issuance of a removal order; the denial,

suspension, or revocation of a lic ense; or

taking any other action within the authority

of the office pursuant to this chapter:

(a) Failure to comply with any provision of

this chapter or related rule or order, or

any written agreement entered into with the

office.

47 . In this proceeding, Petitioner has charged Respondent s

with failing to maintain and deposit payment instruments into

its own commercial account at a federally - insured financial

institution, in v iolation of section 560.309(3). Section

560.309(3) provides:

(3) A licensee under this part must

maintain and deposit payment instruments

into its own commercial account at a

federally insured financial institution. If

a licensee ceases to maintain such a

depository account, the licensee must not

engage in check c ashing until the licensee

reestablishes such an account and notifies

the office of the account as required by

s. 560.126(4).

§ 560.309(3), Fla. Stat.

4 8 . Th is statute is penal, so " 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 Real Estate , 592 So. 2d

1136, 1143 (Fla. 1st DCA 1992); Camejo v. Dep't of Bus. & Prof'l

Reg. , 812 So. 2d 583 , 583 - 84 (Fla. 3d DCA 2002).

49 . B ecause Petitioner seeks to impose an adminis trative

penalty in this proceeding , it has the burden to prove , by clear

and convincing evidence , that Respondent s committed the

violation alleged in the Administrative Complaint and that the

p enalty sought to be imposed is appropriate . See Dep't of

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

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). This

evidentiary standard has been described as follows:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

t he 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) ) .

5 0 . For the reasons discussed at length above , Petitioner

presented clear and convincing evidence showing that Respondents

did not own U.S. Bank Account No. XX3503. Specifically, the

evidence shows that Respondents were not signatories to the

account so could not access or withdraw funds from the account.

O nce Respondents depo sited payment instruments into A ccount

N o. XX3503, they lost possession of, acces s to, and control over

the funds from those instruments.

5 1 . Florida law holds that ownership 10/ of property implies

the right of possession and control thereof, as well as the

right to dispose of, alienate, or transfer the property freely

without int erference or restraint. See Chianese v. Culley , 397

F. Supp. 1344 (S.D. Fla. 1975) ; MacGregor v. Fla. Real Estate

Comm'n , 99 So. 2d 709 (Fla. 1958). Here, the evidence clearly

and convincingly establishes that Intermex, not Respondents, was

entitled to maintain and assert possession and enjoyment of the

funds from the payment instruments once Respondents deposited

the instruments into Account No. XX3503 , and that only Intermex

had the right to dispose of, alienate, or transfer the funds in

Account No. XX3503 freely without interference or restraint . As

such, pursuant to Florida law, Intermex held title to Account

No. XX3503 , and, thus, owned the account. See Joel Strickland

Ent ers . v. Atlantic Discount Co. , 137 So. 2d 627 (Fla. 1st DCA

196 2)(title is the evidence of a person's ownership , the means

by which the owner is enabled to maintain or assert possession

or enjoyment).

52. Accordingly, it is concluded that Respondents violated

section 560.309(3) by depositing payment instruments into U.S.

Bank Account No. XX3503, which they did not own .

53. As discussed above, Petitioner has adopted

rule 69V - 560.1000, which codifies a penalty matrix that

authorizes and enables Petitioner to impose a fine for a

specific statutory or rule violation, based on the level of fine

adopted in rule 69V - 560.1000(150) and the number of times a

licensee has viola ted that particular statute or rule.

5 4 . Also as discussed above, rule 69V - 560.1000(150)

establishes a range of $1,000 to $3,500 for a Level A fine;

$3,500 to $7,500 for a Level B fine; and $7,500 to $10,000 for a

Level C fine.

5 5 . Here, Respondents are charged with having violated

section 560.309(3) for the first time. Pursuant to

rule 69V - 560.1000(85), Respondents are subject to a Level B

fine, which ranges from $3,500 to $7,500.

5 6 . As discussed in detail above, r ule 69V - 560.1000(148)

sets f orth the factors that must be considered in the

determining the specific amount of the fine within the ranges

established in rule 69V - 560.1000(150).

57. Based on the evidence in the record and pursuant to

the foregoing discussion and analysis under rule s 69V -

560.1000(85), (148) and (150) , the undersigned concludes that a

$4, 2 5 0 fine should be imposed on Respondents for violat ing

section 560.309(3).

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 finding that Respondents , Moctezuma Envios ,

Inc., and Liliana Carrascal , violated section 560.309(3),

Florida Statutes, and imposing a f ine of $4, 2 5 0 .

DONE AND ENTERED this 22nd day of June, 2016, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 2 2nd day of J une , 2016.

ENDNOTES

1/ Respondents' conduct alleged to violate section 560.309(3)

occurred during the period in which the 2013 version of

chapter 560, Florida Statutes, was in effect. Accordingly, all

citations to provisions in chapter 560 are to the 2013 version

of that statute.

2/ Kelly Knopps and Phillip Salter testified by telephone, as

authorized by the Order Allowing Testimony by Telephone entered

on April 7, 2016. Pursuant to Florida Administrative Code

Rule 28 - 106.213(5)(b), a notary public was present with each of

these witnesses, and the written certification required by that

rule was filed with DOAH on May 5, 2016. Addition ally,

Carrascal's testimony was translated from Spanish to English by

a qualified interpreter who was present at the Miami site and

who was administered the oath as required by section 90.606,

Florida Statutes (2015) .

3/ As noted above, Moctezuma Envios is the holder of License

N o. FT30800203. Petitioner also named Carrascal as a Respondent

in this proceeding, pursuant to section 560.114(1), because she

is an "affiliated party," as defined in section 560.103(1), by

virtue of being an officer and having a 100 percent controlling

interest in Moctezuma Envios.

4/ Intermex is a separate business entity from Respondent

Moctezuma Envios, and, during the relevant period, was a client

of U.S. Bank.

5/ To this point, the credible, persuasive evidence establi shes

that U.S. Bank would not have authorized Respondents to be

signatories on Account No. XX3503 because their client

relationship was with Intermex, and that doing so would have

required U.S. Bank to conduct enhanced due diligence of

Moctezuma Envios, co ntrary to U.S. Bank procedures.

6/ In other words, Petitioner did not apply, or "use," the

factors for which it lacked information, in determining the

fine.

7/ Grosmaire explained that if Respondents' previous two

violations had constituted the same offense as that at issue in

this proceeding, Respondents could have been subjected to a

$10,000 fine or up to 30 days' suspension of Moctezuma Envios'

license.

8/ See rule 69V - 560.1000(148)(m). This is not even a case where

Respondents inadvertently violated the law while acting on their

own volition. Here, Respondents were concerned about ensuring

they complied with the law, but affirmatively were assured by

Interme x that establishing and maintaining Account No. XX3503

would comply with the law. While Respondents' mistake in this

case does not relieve them of liability for failing to comply

with section 560.309(3), they are without culpability.

9/ As noted, rule 69V - 560.1000(148) does not address the weight

that each factor in the rule should be given in determining the

specific fine within the range authorized pursuant to

rules 69V - 560.1000(85) and 69V - 560.1000(150). Accordingly, the

undersigned attempted to app ly the rule in as neutral and

impartial a manner as possible, based on the evidence presented

by both parties at the hearing. As discussed, Petitioner

presented evidence regarding two factors that militated in favor

of an increased penalty ÏÏ i.e., were " ag gravating " factors. The

undersigned found persuasive Petitioner's evidence regarding

Moctezuma Envios' disciplinary history. Respondents presented

evidence regarding seven factors that militated in favor of a

decreased penalty ÏÏ i.e., were " mitigating fac tors " ÏÏ including

Carrascal's credible, persuasive testimony that only

approximately ten percent of the payment instruments Moctezuma

Envios received during the timeframe pertinent to this

proceeding was deposited into Account No. XX3503. Upon careful

cons ideration of all of the evidence presented regarding

aggravating and mitigating circumstances, the undersigned

determines that a fine of $4, 2 5 0 is reasonable and appropriate

in this case.

10/ The term " own " is not defined in chapter 560, and Petitioner

has not adopted a rule defining this term. Under these

circumstances, the statute controls and the ALJ is tasked with

interpreting the statute. Here, the ALJ finds that regardless

of whether OFR has adopted a rule defining the term " own , " its

interpretation of that term in section 560. 309(3) under the

circumstances present in this case is correct. See Brandy's

Prod s . Inc. v. Dep't of Bus. and Prof 'l Reg. , Case No. 14 - 3496

(Fla. DOAH Feb. 24, 2015), overturned on other grounds , DBPR

Case No. 66 - 00115 (DBPR Final Order June 11, 2015), reversed and

remanded , Brandy's Prods. v. Dep't of Bus. and Prof'l Reg. , 188

So. 3d 130 (Fla. 1st DCA 2016).

COPIES FURNISHED:

Jennifer Leigh Blakeman, Esquire

Office of Financial Regulation

400 West Robinson Street , Suite S - 225

Orlando, Florida 32801

(eServed)

Eric Arthur Falk, Esquire

Falk & Falk, P.A.

17190 Royal Palm Boulevard , Suite 2

Weston, Florida 33326

(eServed)

Drew J. Breakspear, Commissioner

Office of Financial Regulation

200 E ast Gaines Street

Tallahassee, Florida 32399 - 0350

(eServed)

Colin M. Roopnarine, General Counsel

Of fice of Financial Regulation

The Fletcher Building, Suite 118

200 East Gaines Street

Tallahassee, Florida 32399 - 0370

(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.