21-000669PL Office Of Financial Regulation vs. Toshia Parrish, F/K/A Toshia Glover Status: Closed Recommended Order on Friday, December 3, 2021.

Summary: Petitioner proved by clear and convincing evidence that there were grounds for revoking and/or annulling Respondent's license.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

O FFICE OF F INANCIAL R EGULATION ,

Petitioner ,

vs. Case No. 21 - 0669PL

T OSHIA P ARRISH , F/K/A T OSHIA G LOVER ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted on September 16, 2021,

via Zoom, before Garnett W. Chisenhall, a duly designated Administrative

Law Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petitioner: Joaquin Alvarez, Esquire

Office of Financial Regulation

Fletcher Building

200 East Gaines Street

Tallahassee, Florida 32399

For Respondent: H. Richard Bisbee, Esquire

H. Richard Bisbee, P.A.

Suite 206

18 82 Capital Circle Northeast

Tallahassee, Florida 32308

S TATEMENT OF T HE I SSUE S

Whether the loan originator license issued to Respondent should be:

(a) annulled because it was issued by mistake; or (b) revoked because

Respondent failed to d isclose adverse credit history and a prior name under

which she had held a mortgage broker license that had been revoked.

A separate issue concerns whether Respondent should be fined; and if so, how

much. 1

P RELIMINARY S TATEMENT

The Office of Fi nancial Regulation (ÑOFRÒ) issued an Administrative

Complaint on January 4, 2021, alleging that Toshia ParrishÔs loan originator

licensure application failed to disclose that she was previously known as

Toshia Glover. The Administrative Complaint further a lleged that Toshia

Glover had previously held a mortgage broker license that had been revoked

by OFR. Accordingly, OFR stated that it intended to: (a) annul Ms. ParrishÔs

newly - issued loan originator license because it had been issued by mistake; 2

or (b) r evoke that license and impose a $3,500 administrative fine because

her loan originator licensure application had contained a material

misstatement and/or omission. 3

Ms. Parrish responded to the Administrative Complaint by requesting a

formal administ rative hearing and making the following assertions:

At all times material hereto and for the reasons

more particularly described hereafter, [Ms. Parrish]

at the time she applied on September 6, 2020 for

her Loan OriginatorÔs license was unaware that the

OF R had previously revoked [her] mortgage broker

license # MB0822297. The first time [Ms. Parrish]

became aware of the existence of [that] Final Order

was after service of the pending complaint.

[Ms. Parrish] was unaware of the Final Order

1 Unless stated otherwise, all statutory references shall be to the 2020 version of the Florida

Statutes. See McClosky v. DepÔt of Fin. Serv. , 115 So. 3d 441 (Fla. 5th DCA 2013)(stating that

a proc eeding is governed by the law in effect at the time of the commission of the acts alleged

to constitute a violation of law).

2 Section 494.00312(5), Florida Statutes, provides that a person who had a loan originator

license or its equivalent revoked is in eligible to be licensed as a loan originator.

3 Section 494.0025(5), provides that it is illegal to knowingly and willfully make any false or

fraudulent statement or representation. S ection 494.00255(1)(u), subjects a loan originator to

discipline for fa ilure to comply with any provision within c hapter 494.

because th e OFR failed to perfect proper personal

or constructive service of the administrative

complaint upon [her] prior to entering the Final

Order.

OFR did not properly and lawfully revoke

[Ms. Parrish]Ôs mortgage brokerÔs license

## MB 0822297, insofar as the OFR failed to

properly obtain personal jurisdiction by personally

serving [her] with a complaint prior to the entry of

a final order. Consequently, any final order the

OFR issued was and remains fatally defective and

void ab initio .

Alternatively, [Ms. Parrish] further asserts that in

the event OFR intends to rely upon constructive

service as a condition precedent to service by

publication of the complaint upon [Ms. Parrish], the

OFRÔs attempt at constructive service was legally

def ective because the OFR investigator/agent failed

to properly conduct a reasonable and thorough

Ñdiligent search and inquiryÒ; consequently, any

final order based upon such defective service was

and remains fatally defective and void ab initio .

* * *

[Ms. Parrish]Ôs omission of her former name was

not intentional but simple human error.

The omission was not material because [she]

provided her social security number by which the

OFR could have easily obtained the inadvertently

omitted informati on. In addition, the omission was

not material because the purported Ñfinal orderÒ

identifying [her] by the name ÑToshia GloverÒ was

and remains legally defective and void ab initio . . .

OFR referred this matter to DOAH on February 18, 2021, and the

und ersigned issued a Notice of Hearing on March 1, 2021, scheduling a final

hearing for April 27 and 28, 2021.

In a related matter, OFR issued a Ñ Notice of Intent to Deny Application

for Mortgage Broker LicenseÒ to Assertive Mortgage LLC , (ÑAssertive

Mortg ageÒ). In support thereof, OFR alleged that Assertive MortgageÔs

application for licensure as a mortgage broker listed Ms. Parrish, Assertive

MortgageÔs sole owner and officer, as the qualified principal loan originator

and as a control person. However, As sertive MortgageÔs application failed to

disclose that OFR had revoked Ms. ParrishÔs mortgage broker license when

she was known as Toshia Glover. After Assertive Mortgage petitioned for a

formal administrative hearing, OFR referred that matter to DOAH on

F ebruary 18, 2021, and it was assigned DOAH Case No. 21 - 0 670.

Ms. Parrish filed a ÑStipulated Motion to Continue Final HearingÒ on

April 12, 2021, requesting that the final hearing be continued for at least

60 days. After receiving the partiesÔ mut ual dates of availability, the

undersigned reschedule d the final hearing for July 29 and 30, 2021.

On June 25, 2021, OFR filed a Motion in Limine seeking to foreclose

Ms. Parrish from collaterally attacking an April 22, 2009, Final Order that

revoke d her mortgage broker license. OFR also filed on June 25, 2021, a

Motion for Leave to Amend its Administrative Complaint. In support thereof,

OFR stated that it had Ñdiscovered further material misstatements on the

loan originator license application, whic h would constitute a separate

violation of law.Ò Specifically, OFR sought to add an allegation that

Ms. Parrish had failed to disclose an outstanding income tax lien when she

filed her most recent loan originator license application.

A tele phonic conference was convened on July 7, 2021, and the

undersigned explained that administrative finality 4 barred a collateral attack

4 The doctrine of administrative finality provides that Ñ[t]here must be a terminal point in

every proceeding both administrative and judicial, at which the parties and the public may

on the April 22, 2009, Final Order. Nonetheless , the Motion in Limine wa s

denied w ithout prejudice.

The undersigned i ssued another Order on July 7, 2021, gra n ting OFRÔs

Motion for Leave to Amend its Administrative Complaint. As a result, three

counts were at issue in DOAH Case No. 21 - 0 669: (1) whether Ms. Parrish

failed to disclose on her application that she had previou sly been known as

Toshia Glover; (2) whether Ms. Parrish failed to disclose the existence of an

unsatisfied tax lien against her; and (3) whether Ms. Parrish was issued a

loan originator license despite the fact that she had previously held a

mortgage brok er license that had been revoked. Because an additional count

was now at issue, t he Order specified that either party could request a

continuance of the July 29 and 30, 2021, final hearing.

On July 15, 2021, OFR filed a m otion seeking to continue the fi nal

hearing, and the undersigned issued an Order rescheduling the final hearing

for September 16 and 17, 2021.

The final hearing was convened as scheduled and completed on

September 16, 2021. At the outset of the final hearing, the undersigned

conside red four motions. The first was a ÑRenewed Motion in Limine , Ò filed

by OFR on September 14, 2021, seeking to foreclose Ms. Parrish from

challenging the validity of the April 22, 2009, Final Order that revoked her

mortgage broker license . In the course of g ranting the Renewed Motion in

Limine, the undersigned reiterated comments made during the July 7, 2021,

tele phone conference that administrative finality barred the undersigned

from considering any matters that had been addressed by the April 22, 2009,

F i n al Order. However, the undersigned also ruled that Ms. Parrish could

rely on a deci sion as being final and dispositive of the rights and issues involved therein.Ñ

Austin Tupler Trucking, Inc. v. Hawkins , 377 So. 2d 679, 681 (Fla. 1979).

proffer the testimony and/or evidence at issue. The undersigned also

considered a ÑSecond Motion in LimineÒ filed by OFR on September 14, 2021,

seeking to preclude any testimony from Ms. Parrish that she did not intend

to omit or misstate any material information when she completed the

application at issue in this proceeding . The undersigned denied the Second

Motion in Limine. T he undersigned granted OFRÔs m otion to take official

recogniti on of c hapter 494 and Florida Administrative Code Chapter 69B - 40 .

Finally, the undersigned denied Ms. ParrishÔs Motion to Stay the final

hearing until OFR ruled on a Petition she had filed with OFR requesting that

OFR vacate the April 22, 2009 , Final Order .

OFR presented testimony from Bill Morin and the following exhibits

were accepted into evidence as OFR Exhibits 1 through 5 and 7 through 15 :

(1) A Default Final Order rendered by OFR on April 22, 2009, that revoked

Toshia GloverÔs mortgage broker license and imposed a $7,000 fine for which

Ms. Glover and A Loans were jointly and severally liable; (2) a blank, hard

copy of the Nationwide Multi - State Licensing SystemÔs (ÑNMLSÒ) loan

originator application designated thereon as ÑNMLS INDIVIDU AL FORM

MU4 EFFECTIVE 4/16/2012Ò and adopted by Florida Administrative Code

Rule 69V - 40.002; 5 (3) a filing guide produced by NMLS to assist applicants

with completing their application for licensure as a loan originator; (4) the

loan originator licensure a pplication filed with OFR by Toshia Parrish on

September 6, 2020; (5) a document from the State of GeorgiaÔs Department of

Revenue indicating that, as of June 7, 2018, there was an outstanding lien of

$488,438.77 against Ms. Glover; 6 (7) an amended/updated version of

5 Ms. Parrish applied to OFR for licensure as a loan originator on September 6, 2020. The

v ersion of rule 69V - 40.002 in effect at that time adopted ÑNMLS Individual Form (Form

MU4), Version 8.9, dated and effective April 16, 2012.Ò

6 The document marked for identification by the undersigned as OFR Exhibit 6 was not

accepted into evidence duri ng the final hearing due to concerns regarding its authenticity.

The undersigned gave OFR two weeks following the conclusion of the final hearing to file a

Ms. ParrishÔs loan originator licensure application filed with OFR on

April 29, 2021; (8) a document delineating past application filings by

Ms. Parrish; (9) an application filed by Mr. Parrish with the Florida

Department of Business and Profes sional Regulation for licensure as a real

estate broker; (10) a blank, hard copy of the NMLS form used by companies

seeking licensure as a mortgage brokerage entitled ÑNMLS COMPANY

FO R M MU1, EFFECTIVE 03/31/2014Ò and adopted by Florida

Administrative Code Rule 69V - 40.002; 7 (11) a filing guide produced by NMLS

to assist applicants with completing their company application for licensure;

(12) an application for licensure submitted by Assertive Mortgage on

September 19, 2020; (13) an application for licensure submitted by Assertive

Mortgage on April 29, 2021; (14) Assertive MortgageÔs organizational chart;

and (15) a document delineating past application filings by Assertive

Mortgage. 8

Ms. Parrish testified on her own behalf and Respondent Ôs

E xhibits 1 through 5 and 8 were accepted into evidence. Ms. Parrish

was allowed to proffer testimony regarding her assertion that she was

unaware of OFRÔs April 22, 2009 , Final Order when she filed the application

at issue in this proceeding. Ms. Parrish wa s also allowed to proffer

RespondentÔs Exhibits 10 through 14.

certified copy. On October 6, 2021, OFR filed a n otice stating that it was withdrawing OFR

Exhibit 6 from consideration. As a result, OFR Exhibit 6 was not accepted into evidence, and

the undersigned disregarded any testimony based on that document.

7 Assertive Mortgage applied to OFR for licensure as a mortgage broker on September 19 ,

2020. The version of rule 69V - 40.002 in effect at that time adopted ÑNMLS Company Form

(Form MU1), Version 10.0 dated and effective March 31, 2014 . Ò

8 Because the cases are closely related, the undersigned heard the instant case and DOAH

Case No. 21 - 0 670 simultaneously. I n order to minimize the number of exhibits, the two sets

of exhibits that OFR filed for C ase N os. 21 - 0 699 and 21 - 0 670 were consolidated into a single

set of exhibits. Ms. Parrish filed one set of exhibits that was used for both cases.

The two - volume final hearing Transcript 9 was filed on September 24,

2021, and both parties filed timely proposed recommended orders that have

been considered in the preparation of this Recom mended Order.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. OFR is the state agenc y responsible for regulating mortgage brokering,

mortgage lending, and loan origination.

2. Toshia Glover became a Florida - licensed mortgage broker in 1999, and

she became licensed in Florida and Georgia as a mortgage loan originator in

2000. At some point after 2003, she obtained a Florida real estate brokerÔs

license. In 2006, Ms. Glover became a Georgia - licensed mortgage broker. 10

3. Ms. Glover operated a mortgage broker company called A Loans from

2005 until September of 2008. The economic downturn that occurred in 2008

decimated her real estate and loan origination businesses and forced her to

discontinue operations.

4. Ms. Glover moved to Georgia from Florida during the fourth quarter of

2008, and sustained herself by doing odd jobs. Ms. Glover estim ates that she

earned less than $10,000 in 2009.

9 Pages 9 and 10 of the Transcript erroneously attribute comments by RespondentÔs counsel

to counsel for Petitioner.

10 Prior to 2010, OFR issued mortgage broker licenses to individuals and businesses. Since

2010, OFR has issued loan originator licenses to individuals an d mortgage broker licenses to

businesses. Therefore, the individual mortgage broker license is the historical equivalent of

the current loan originator license. Section 494.001(18), defines a Ñloan originatorÒ as Ñ an

individual who, directly or indirectly, solicits 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 offers to negotiate the sale of an existing mortgage loan to a noninstitutional

investor for compensation or gain.Ò

5. In February of 2009, OFR unsuc c es s ful ly attempt ed to personally serve

an Administrative Complain t on Toshia Glover alleging that A Loans and

Ms. Glover, as the principal broker of A Loans, 11 received impr oper

compensation of $1,530 and $600. Those alleg ations amounted to violations of

sections 494 . 0038(1)(a) and (1)(b)1 . Florida Statutes (2005 and 2006) , and

r ule 69V - 40.008(1) . In March and April of 2009, OFR published notice of the

Administrative Complain t in the Sun - Sentinel daily newspaper.

6. After Ms. Glover and A Loans did not respond to the Administrative

Complaint, OFR issued a ÑDefault Final Order and Notice of RightsÒ (Ñthe

Default Final OrderÒ) on April 22, 2009, immediately revoking M s. GloverÔs

mortgage broker license and imposing a $7,000 administrative fine for which

Ms. Glover and A Loans were jointly and severally liable. Ms. Glover and A

Loans were also required to refund a total of $2,130 to one or more borrowers.

7. Ms. Glo ver married her current husband on December 12, 2012, and

has not used her maiden name since. She will hereinafter be referred to as

Ms. Parrish.

8. On June 7, 2018, a lien was recorded in the Superior Court for Cobb

County, Georgia, indicating that Ms. P arrish o w ed $ 209 , 510 . 00 in delinquent

taxes to the Georgia Department of Revenue. After accounting for interest,

penalties, and a collection fee, the lien totaled $488,438.77. 12

9. On September 6, 2020, Ms. Parrish applied to be licensed in Florida

as a l oan originator. The version of r ule 69V - 40.002(1)(a)4 . in effect on

September 6, 2020, adopted ÑNMLS Individual Form (Form MU4),

11 Section 494.0035, Florida Statutes (2005 and 2006), required that each mortgage

brokerage business have a principal broker with full c ontrol over that business.

12 The document memorializing the lien was not a certified copy. However, the undersigned

determined that it was sufficiently reliable to be accepted into evidence. See § 120.569(2)(g),

Fla. Stat. (providing that Ñ[i]rrelevant , immaterial, or unduly repetitious evidence shall be

excluded, but all other evidence of a type commonly relied upon by reasonably prudent

persons in the conduct of their affairs shall be admissible, whether or not such evidence

would be admissible in a t rial in the courts of Florida.Ò). Moreover, the Order of Pre - Hearing

Instructions directed the parties to note any objections to exhibits in the Joint Pre - H earing

Stipulation, and Ms. Parrish did not raise an authenticity objection to this document.

Version 8.9, dated and effective April 16, 2012Ò (Ñthe MU4Ò). The MU4 Ñis the

universal form used by individuals required to su bmit biographical and other

information to a state agency through NMLS as part of a license application.Ò

The MU4 required applicants to disclose identifying information such as their

first and last names, social security number, and date of birth. It also had a

section entitled ÑOther Names , Ò with the following instruction: ÑOther than

your legal name, list all name(s) you are using or have used since the age of

18. Examples include nicknames, aliases, and names used before or after

marriage.Ò 13

10. The MU 4 also requ ired an applicant to disclose whether Ñyou have any

unsatisfied judgments or liens against youÒ and whether any state or federal

regulatory agency has Ñentered an order against you in connection with a

financial services - related activity.Ò 14

11. Ms. Parrish did not read the instructions for the MU4 form. 15 As a

result, she failed to disclose her maiden name in the ÑOther NamesÒ section

of her MU4 form. Nor did she disclose the lien for unpaid taxes or the Default

Final Order.

13 As for why knowledge of an applicantÔs other names is important, Bill Morin, the Chief of

OFRÔs Bureau of Registration, testified that Ñ[t]he importance of that is . . . it allows [OFR] to

do a complete and comprehensive review of the applicantÔs history. If not all of the names are

disclosed, [OFR] may not be able to fully vet the applicant.Ò

14 An applicantÔs credit history is material information in a loan originator application.

Rule 69V - 40.0113 indicates that OFR must evaluate the circumstances pertai ning to any

adverse credit history.

15 Ms. Parrish argues in her Proposed Recommended Order that the online application she

filled out lacked any instructions indicating she was required to provide her maiden name.

However, her testimony did not indicate that instructions were not available to her. Instead,

her testimony indicated that she chose to not read them. When counsel for OFR asked

Ms. Parrish if she looked at the instructions when she was filling out her application,

Ms. Parrish responded by stati ng the following: ÑThe instruction guide, no. No. I went

straight to the application because the Ï when I first signed up for NMLS, when I established

an NMLS I.D., the website is user friendly. So, I felt no need to have to go look through an

instruction guide to fill out an application because I Ï IÔve done it a million times. I kind of

know how to fill out an application.Ò

12. Ms. ParrishÔs MU4 form had a section entitled ÑAttestation , Ò which

stated that:

I Toshia Parrish (1844160), (Applicant) on this date

Sunday, September 6, 2020 swear (or affirm) that I

executed this application on my own behalf, that I

am attesting to and submitting thi s application,

and that I agree to and represent the following:

(1) That the information and statements contained

herein, including exhibits attached hereto, and

other information filed herewith, all of which are

made a part of this application, are curre nt, true,

accurate and complete and are made under the

penalty of perjury, or un - sworn falsification to

authorities, or similar provisions as provided by

law . . .

13. The Attestation section also contained the following statement: ÑIf the

Applicant has k nowingly made a false statement of a material fact in this

application or in any documentation provided to support the foregoing

application, then the foregoing application may be denied.Ò

14. OFR granted Ms. ParrishÔs application on September 23, 2020.

15 . Ms. Parrish did not intend to hide the fact that she had been

previously licensed in Florida as a loan originator. 16 A t the time she

submitted her application to OFR, Ms. Parrish was unaware of the Georgia

Department of RevenueÔs lien . However, all of th e aforementioned

information was material to OFRÔs consideration of the application at issue.

16. After Ms. Parrish learned of the lien, she contacted the Georgia

Department of Revenue and was told that there had been a mistake.

On July 12, 20 21, the lien was released.

16 Ms. Parrish included a September 6, 2020, credit report with her application to OFR that

indicated her name was ÑToshia Reshee G lover.Ò Also, Ms. Parrish communicated via

telephone and e - mail with the OFR examiner responsible for evaluating her application, and

notified the examiner of her prior licensure in Florida as a loan originator.

17. In light of the fact that the Default Final Order revoked Ms. Parrish Ôs

mortgage broker license, OFR erred when it issued her a new one on

September 23, 2020 .

C ONCLUSIONS OF L AW

18. Pursuant to section 120.57(1), Florida Statutes, DOAH has

jurisdiction over the parties and subject matter of this proceeding.

19. A proceeding, such as this one, to impose discipline upon a license e,

is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n . ,

281 So . 2d 487, 491 (Fla. 1973). Accordingly, OFR must prove the charges

against Ms. Parrish by clear and convincing evidence. Dep't of Banking &

Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turling ton , 510 So. 2d 292, 294 - 95 (Fla.

1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of Med. , 654 So. 2d 205, 207

(Fla. 1st DCA 1995).

20. Regarding the standard of proof, the court in Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983), stated t hat:

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 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.

21. The Florida Supreme Court later adopted the Slomowitz

C ourt's description of clear and convincing evidence. See In re Davey ,

645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal has also

followed the Slomowitz test, adding the interpretive comme nt 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 1991).

22. Penal statutes mus t be construed in terms of their literal meaning and

words used by the Legislature may not be expanded to broaden the

application of such statutes. Thus, the provisions of law upon which this

disciplinary action has been brought must be strictly construed, with any

ambiguity in favor of the one against whom the penalty would be imposed.

Elmariah v. Dep't of Pro fÔl Reg., Bd . of Med. , 574 So. 2d 164, 165 (Fla. 1st

DCA 1990); see also Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d

929, 931 (Fla. 1st DCA 2011); Beckett v. Dep't of Fin. Servs. , 982 So. 2d 94,

100 (Fla. 1st DCA 2008); Whitaker v. Dep't of Ins. & Treas. , 680 So. 2d 528,

531 (Fla. 1st DCA 1996); Dyer v. DepÔt of Ins. & Treas. , 585 So. 2d 1009,

1013 (Fla. 1st DCA 1991).

23. With regard to the instant case, Count I of OFRÔs Amended

Administrative Complaint alleges that Ms. Parrish violated

section 494.00255(1)(s), by failing to disclose on her September 2020 loan

originator application that she was previously known as ÑTos hia Glover.Ò

The 2020 version of section 494.00255(1)(s) provided that loan originators

could be discipline d based on Ñ[a] material misstatement or omission of fact

on an initial or renewal license application.Ò

24. OFR established by clear and convinc ing evidence that Ms. Parrish

failed to disclose her maiden name on the loan originator application she filed

with OFR on September 6, 2020.

25. Ms. Parrish argues that the aforementioned misstatement or omission

should not be considered a violation of sec tion 494.00255(1)(s) because she

had no intent to misstate or omit the information at issue. In other words,

she was unaware that the loan originator licens ure application required her

to disclose her maiden name. In support thereof, she notes that t he

att estation section o n the application at issue contained the following

statement: ÑIf the Applicant has knowingly made a false statement of a

material fact in this application or in any documentation provided to support

the foregoing application, then the fo regoing application may be denied.Ò

(emphasis added)

26. Despite the aforementioned statement on the application, there is

nothing in chapter 494 or the rules promulgated thereunder that creates a

standard of Ñknowing intentÒ for false statements made on applications.

Furthermore, Ms. ParrishÔs argument that she had no intent to misstate or

omit information ignores her conscious and knowing decision to disregard the

very specific instructions regarding disclosure of prior names.

27. The issue of whethe r a lack of intent can excuse a material

misstatement or omission of fact on a licensure application has been

addressed in a past case involving OFR. The petitioner in W inton v. Office of

Financial Regulation , Case No. 05 - 4070 (Fla. DOAH Mar . 16, 2006; Fla . OFR

Apr . 12, 2006) , was alleged to have violated section 494.0041(2)(c), Florida

Statutes (2005), which authorized OFR to deny an application for licensure as

a mortgage broker based on Ñ[a] material misstatement of fact on an initial of

renewal applicat ion.Ò Even though he had pled nolo contendere and was

adjudicated guilty of one count of lewd and lascivious conduct on October 21,

1997, t he Winton petitioner had responded ÑnoÒ to a question on an

application for mortgage broker licensure asking if the a pplicant has Ñpleaded

nolo contendere, been convicted, or found guilty, regardless of adjudication, of

a crime involving fraud, dishonest dealing, or any other act of moral

turpitude.Ò

2 8 . A dministrative L aw J udge T. Kent Wetherell, II, concluded that it was

irrelevant whether the Winton petitioner had intended to respond incorrectly:

43. Petitioner materially misstated his criminal

history on his license application by answering ÑnoÒ

to Question No. 5. His intent regarding the

misstatement is immateri al for purposes of

Section 494.0041(2)(c), Florida Statutes, because,

as explained in regard to a similar statute,

It is impossible for the Department to

know what each applicant knows or

believes at the time of application for

licensure. The inclusio n of the phrase

"material misstatement" allows the

Department to avoid having to make

impossible determinations of what

was and was not known to the

applicant. If the applicant misstates

his or her criminal background, even

unknowingly, he or she is held l iable

for that misstatement.

Department of Insurance v. Koniz , Case No. 01 -

4271PL, 2002 Fla. Div. Adm. Hear. LEXIS 684, at

*8 (DOAH Apr. 23, 2002; DOI May 17, 2002)

(construing Section 626.611(2), Florida Statutes,

which is similar to Section 494.0041(2) (c), Florida

Statutes).

44. Thus, even though the evidence establishes that

PetitionerÔs failure to affirmatively answer

Question No. 5 was based upon his

misunderstanding of the scope of the question,

rather than an intent to deceive the Office by

conce aling his criminal history, PetitionerÔs

negative answer to Question No. 5 provides the

Office an additional basis to deny his license

application. § 494.0041(2)(c), Fla. Stat.

2 9 . Count II of OFRÔs Amended Administrative Complaint alleges that

Ms. Parris h violated section 494.00255(1)(s) by failing to disclose that she

had an unsatisfied income tax lien from the Georgia Department of Revenue

totaling $488,439.00 in the name of Toshia Glover. OFR proved by clear

and convincing evidence that Ms. Parrish neg lected to disclose the

aforementioned lien. While the evidence also demonstrated that the lien was

erroneously entered and that Ms. Parrish was unaware of the lien when she

filed her loan originator application with OFR on September 6, 2021, it

nonetheless was in existence and effective on the date that she filed her

application. A lack of knowledge and/or intent is not an affirmative defense in

this context. See W inton .

30 . Count III of OFRÔs Amended Administrative Complaint alleges that

section s 494.00312 (5) and (6), require that OFR annul the

loan originator license issued to Ms. Parrish in 2020 because OFR had

revoked her mortgage broker license in 2009.

3 1 . The 2020 versions of sections 494.00312(5) and (6) provide that:

(5) The office may not issue a license to an

applicant who has had a loan originator license or

its equivalent revoked in any jurisdiction.

(6) A loan originator license shall be annulled

pursuant to s. 120.60 if it was issued by the office

by mistake. A license must be reinstated if the

applicant demonstrates that the requirements for

obtaining the license under this chapter have been

satisfied.

3 2 . Ms. Parrish argues that there was no Florida - issued mortgage broker

license for the Default Final Order to revoke because she had allowe d all of

her mortgage broker licenses to expire by September 1, 2008. However, that

argument is a collateral attack on the Default Final Order that is barred by

administrative finality . See Austin Tupler Trucking , 377 So. 2d at 681.

Accordingly, OFR proved by clear and convincing evidence that it had

revoked Ms. ParrishÔs mortgage broker license in 2009 and that OFR made a

mistake by issuing a loan originator license to Ms. Parrish on September 23,

2020 .

3 3 . With regard to an appropriate penalty, section 4 94.00312(6) requires

that OFR annul the loan originator license issued to Ms. Parrish on

September 23, 2020 . Therefore, there is no need to assess whether that

license should be revoked. Because OFR stated in its Proposed Recommended

Order that it is also seeking to impose a $3,500 administrative fine, the

undersigned must refer to r ule 69V - 40.111 , OFRÔs disciplinary guidelines

rule.

3 4 . Rule 69V - 40.111(5) provides that $1,000 to $3,500 is the range for an

ÑAÒ level fine but does not elaborate further . Sub section (3) states that a

penalty can be mitigated by Ñcase - specific circumstances.Ò In the instant case,

Ms. Parrish had no specific intent to hid e her prior licensure as a loan

originator from OFR. Nor was Ms. Parrish aware of the lien when she filed

her application on September 6, 2020. While a lack of specific intent does not

excuse the violations at issue in the instant case, it does counsel against

imposing any administrative fine.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclu sions of Law, it is

R ECOMMENDED that the Office of Financial Regulation issue a Final Order

annulling the loan originator license issued to Toshia Parrish, F/K/A Toshia

Glover, on September 23, 2020.

D ONE A ND E NTERED this 3rd day o f December , 2021 , in T allahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 3 rd day of De cember, 2021.

C OPIES F URNISHED :

H. Richard Bisbee, Esquire Joaquin Alvarez, Esquire

H. Richard Bisbee, P.A. Office of Financial Regulation

Suite 206 Fletcher Building

1882 Capital Circle Northeast 200 East Gaines Street

Tallahassee, Florida 32308 Tallahassee, Florida 32399

Russell C. Weigel, Commissioner Anthony Cammarata, General Counsel

Office of Financial Regulation Office of Financial Regulation

200 East Gaines Street The Fletcher Building, Suite 118

Tallahassee, F lorida 32399 - 0350 200 East Ga ines Street

Tallahassee, Florida 32399 - 0370

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 wit h the agency that will issue the Final Order in this

case.