16-002490 Office Of Financial Regulation vs. Amjad J. Hijaz, D/B/A Mexican American Grocery Status: Closed Recommended Order on Tuesday, July 19, 2016.

Summary: Respondent failed to timely submit the required quarterly statement; penalty appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF FINANCIAL REGULATION,

Petitioner,

vs. Case No. 16 - 2490

AMJAD J. HIJAZ, d/b/a MEXICAN

AMERICAN GROCERY,

Respondent.

_______________________________/

RECOMMENDED ORDER

P ursuant to notice, a final hearing was held in this case on

June 8, 2016, via video teleconference sites in Lakeland and

Tallahassee, Florida, before Lynne A. Quimby - Pennock,

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEA RANCES

For Petitioner: William Michael Oglo, Esquire

Office of Financial Regulation

Fletcher Building, Suite 550

200 East Gaines Street

Tallahassee, Florida 32399 - 0376

For Respondent: Eric O. Husby, Esquire

2001 West Cleveland Street

Tampa, Florida 33606

STATEMENT OF THE ISSUE

Whether Respondent timely filed a quarterly report as

required under chapter 560, Florida Statutes (2015), or related

rules.

P RELIMINARY STATEMENT

On April 6, 2016, the Office of Financial Regulation (OFR

or Petitioner), issued an Administrative Complaint to Respondent,

Amjad J. Hijaz, d/b/a Mexican American Grocery. The

Administrative Complaint alleged that Respondent untimely filed a

quarterly report in violation of section 560.118(2) and Florida

Administrative Code R ule 69V - 560.602. OFR was seeking a $1,000

fine for RespondentÓs failure to timely submit a quarterly report

as required. On April 27, 2016, Respondent filed an Election of

Proceeding (EOP) with OFR. In addition to other information, the

EOP contained three boxes which provided Respondent with options

on how to resolve the Administrative Complaint. Respondent

checked box number 3 which provided the following:

I do dispute one or more of the OfficeÓs

factual allegations. I request a section

120.57(1), Florida Statutes, formal hearing

before the Division of Administrative

Hearings. Pursuant to the requirements of

Rule 28 - 106.2015(5)(c), Florida

Administrative Cod e, I am attaching the

material facts that I dispute (SEE PAGE 2).

TO PRESERVE THE RIGHT TO A HEARING, A

RESPONSE MUST BE FILED WITH THE OFFICE OF

FINANCIAL REGULATION WITHIN TWENTY - ONE (21)

DAYS OF THE RECEIPT OF THE ADMINISTRATIVE

COMPLAINT. THE RESPON SE MUST BE RECEIVED BY

THE OFFICE NO LATER THAN 5:00 P.M. ON THE

TWENTY - FIRST DAY AFTER THE RECEIPT OF THE

ADMINISTRATIVE COMPLAINT.

The additional page 2 provided the following instructions

(RespondentÓs response is underlined):

**YOU ARE TO COMPLETE THE FOLLOWING ONLY IF

YOU HAVE CHECKED NUMBER 3 ON THE PRECEDING

PAGE. If you need more space, you may

provide additional pages.

As the licensee or the authorized

representative of the licensee, I am

disputing the following material facts:

General allegati on 5. ÐOn or about

February 24, 2015, the Office began a limited

scope examination (#58649) of Respondent for

failing to timely file a quarterly reportÑ is

hereby dusputed [sic] .

Signature of Mr. Hijaz and dated April 25,

2016. (Emphasis supplied) .

On May 5, 2016, OFR referred the matter to DOAH for purposes of

hearing.

On May 12, 2016, RespondentÓs Response to Initial Order and

Notice of Unavailability was filed. Respondent advised the

undersigned that he was unaware of any related cases, that the

ca se should not take more than three hours, and he requested the

location for the final hearing to be in Tampa, Florida, in -

person. Respondent also stated Ðthat his spouse was currently

overseas and expecting a maternity delivery. Respondent is

expected to join his spouse and is unavailable between June 15th,

2016 and August 15th, 2016.Ñ Later that same day, OFRÓs counsel

filed a response to the Initial Order, indicating that the two

parties had conferred and offered the following dates for

hearing: June 8, 9, and 10. OFRÓs counsel also requested t hat

the hearing be conducted via video teleconferencing. On May 13,

2016, the hearing was set for June 8, 2016.

On June 1, 2016 , RespondentÓs counsel filed a N otice of

A ppearance. On June 7, 2016, Respondent ( via counsel) filed a

M otion for E xtension of T ime to R espond to R equests for

P roduction of Documents, I nterrogatories and Request for

A dmissions and to Continue H earing, and a M otion to D isqualify

the Administrative Law Judge (ALJ). Petitioner filed respo nses

to both motions, and Orders denying both motions were issued.

At the final hearing , held on June 8, 2016, Petitioner

offered the testimony of Jesse Liu, an OFR financial specialist ,

and Andrew Grosmaire, OFRÓs chief of enforcement for its B ureau

of E n forceme nt. PetitionerÓs Exhibits A and C were admitted into

evidence over objection. Respondent did not present any

witnesses. RespondentÓs Exhibits A and B were admitted into

evidence over objection.

The one - volume Transcript was filed with DOAH on Jun e 14,

2016 , and a Notice of Filing Transcript was issued the following

day. Both parties timely submitted their proposed recommended

orders, and each has been considered in the preparation of this

Recommended Order.

Unless otherwise indicated, all referen ces to the Florida

Statutes are to the 2015 version.

FINDING S OF FACT

1. OFR is the state agency responsible for the

administration and enforcement of chapter 560, related to

licensing of money services businesses, a term that includes

money transmitter services, and the rules promulgated thereunder.

2. Respondent is a money services business and has license

number FT30800590. Respondent operates as a check casher, and is

located at 3220 Sydney Dover Road, Dover, Florida.

3. Every Florida licensed chec k casher is required to

submit quarterly reports to OFR in a format which includes

information specified by rule. See § 560.118(2) , Fla. Stat .

4. The due date for a check casher to have filed its money

services business quarterly report for the quarter e nding

December 31, 2014, was February 16, 2015.

5. OFR sent a reminder to Respondent within ten days

following December 31, 2014 , to file the quarterly report. OFR

sent seven additional e - mails before the deadline advising

Respondent to file the quarterl y report within the deadline.

6. On March 6, 2015, Respondent filed the quarterly report

in the proper format; however , it was 18 days after the

applicable filing deadline.

7. OFR determined that RespondentÓs late filing of the

quarterly report is a ÐCla ss AÑ violation pursuant to r ule 69V -

560.1000(39) and (150). OFR determined the appropriate penalty

to be a $1,000 fine. Mr. Grosma i r e Ós testimony on the basis of

OFRÓs imposition of the $1,000 fine is credible.

CONCLUSIONS OF LAW

8. The Division of Adm inistrative Hearings has jurisdiction

over the subject matter of this proceeding and the parties

thereto pursuant to sections 120.569, 120.57(1), and 120.60(5),

Florida Statutes.

9. OFR is charged with administering and enforcing the

provisions of chapter 560 and conducting examinations and

investigations to determine whether any provision of chapter 560

or the rules adopted there under have been violated.

10. Because Petitioner seeks to impose an administrative

penalty, which is a penal sanction, Petition er has the burden of

proving by clear and convincing evidence the specific allegations

in the Administrative Complaint. See , e.g. , DepÓt of Banking &

Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987 ); Pou v. DepÓt of

Ins. and Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998).

11. In 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 qualitative and

quantitative standards." The court held that:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly reme mbered; the

testimony must be precise and explicit 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 hesitanc y, 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. See In re

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

o f Appeal has also followed the Slomowitz test, adding 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. Shule r Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991), rev . denied , 599 So. 2d 1279 (Fla. 1992) (citation

omitted). OFR has met its burden in this case.

12. Section 560.105 (2) provides the following authority to

OFR:

(2) The commission may adopt rules pursuant

to ss. 120.536(1) and 120.54 to administer

this chapter.

1 3. Rule 69V - 560.602 provides the following:

Every money services business licensed

pursuant to Chapter 560, F.S., shall submit a

quarterly report to the Office by filing a

completed Form OFR - 560 - 04, Money Services

Business Quarterly Report Form, which is

incorporated by reference in Rule 69V -

560.1012, F.A.C. A completed quarterly

report form shall be received by the Office

no later than forty - five (45) days after the

conclusion of each qu arter . Should the

forty - fifth day fall on a Saturday, Sunday or

holiday, the reports must be received by the

Office no later than the next business day.

A report is Ðpast dueÑ if it is received by

the Office one or more days beyond the period

set forth i n this rule.

Specific Authority 560.105, 560.118 FS. Law

Implemented 560.118(2) FS. History Î New 9 - 24 -

97, Amended 12 - 30 - 98, 11 - 4 - 01, Formerly 3C -

560.602, Amended 7 - 15 - 07, 1 - 13 - 09.

( Emphasis added ) .

14. Section 560.114(1)(a) and (7) is applicable and st ates

that the failure of a money services business to comply with any

provision of chapter 560 or related rule s constitutes grounds for

suspension of a license and the imposition of an administrative

fine of at least $1,000, but not more than $10,000.

15. Respondent failed to comply wi th rule 69V - 560.602 by

submitting the quarterly report more than 45 days after the

conclusion of the quarter. Therefore, the $1,000 administrative

fine sought by OFR is within OFRÓs authority to impose under

section 560.114( 1)(a) and (7).

16. Section 560.118(2) provides:

Each licensee must submit quarterly reports

to the office in a format and include

information as specified by rule. The rule

may require the report to contain a

declaration by an officer, or any other

respo nsible person authorized to make such

declaration, that the report is true and

correct to the best of her or his knowledge

and belief.

1 7 . The undersigned has considered RespondentÓs claim that

PetitionerÓs reliance on section 560.118(2) is inapplicable.

That argument is unpersuasive as rule 69 V - 560.602 clearly states

the 45 - day filing requirement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Office o f Financial

Regulation enter a f inal o rder imposing an administrative fine of

$1,000.

DONE AND ENTERED this 19 th day of July , 2016 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 19 th day of July , 2016 .

COPIES FURNISHED:

Amj ad J. Hijaz

Mexican American Grocery

1105 Spurwood Court

Brandon, Florida 33511

(eServed)

William Michael Oglo, Esquire

Office of Financial Regulation

Fletcher Building, Suite 550

200 East Gaines Street

Tallahassee, Florida 32399 - 0376

(eServed)

Eric O. Husby, Esquire

2001 West Cleveland Street

Tampa, Florida 33606

(eServed)

Drew J. Breakspear, Commissioner

Office of Financial Regulation

200 East Gaines Street

Tallahassee, Florida 32399 - 0350

(eServed)

Colin M. Roopnarine, General Counsel

Off ice of F inancial Regulation

T he 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 Reco mmended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.