86-002718 Department Of Banking And Finance vs. William Mccaffrey Status: Closed Recommended Order on Thursday, October 23, 1986.

Summary: Mortgage solicitor's license suspended for conviction of crime involving fraud or dishonesty even tho crime not directly related to practice under license

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BANKING AND FINANCE, )

)

Petitioner, )

)

vs. ) Case No. 86-2718

)

WILLIAM MCCAFFREY, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Final hearing in the above-styled action was held in Tallahassee, Florida

on October 6, 1986, before Mary Clark, hearing officer of the Division of

Administrative Hearings.

The parties were represented as follows:

For Petitioner: Robert K. Good, Esquire

Office of the Comptroller

400 West Robinson Street, Suite 501

Orlando, Florida 32801

For Respondent: Clyde M. Taylor, Jr., Esquire

1105 Hays Street

Tallahassee, Florida 32301

(did not appear at hearing)

Background and

Procedural Matters

This proceeding commenced with Petitioner's Notice of Intention to Suspend

and Administrative Charges and Complaint, dated June 26, 1986. The notice

informed William David McCaffrey of the Department's intention to suspend his

mortgage solicitor's license for violations of Section 494.05, Florida Statutes.

Through counsel, Mr. McCaffrey responded with a Petition for Formal Hearing

pursuant to Section 120.57(1), Florida Statutes.

The case was forwarded to the Division of Administrative Hearings and the

Notice of Hearing was provided to counsel of record.

On September 30, 1986, Respondent's counsel filed a motion for continuance.

For the reason set forth here and in the Post-Hearing Order dated October 6,

1986, that motion was denied. Respondent was not represented and did not appear

at the hearing.

Petitioner, through counsel, did appear at the hearing and submitted two

exhibits, certified copies of court records in Case number CR 85-53 PHX, from

the U.S. District Court for the District of Arizona. No testimony was taken.

Petitioner requested and was granted ten days to submit a proposed

recommended order. The proposed findings of fact thus submitted have been

incorporated in this recommended order.

Respondent was also informed in the Post-Hearing Order referenced above of

the right to file a proposed recommended order or brief within ten days. While

styled "Respondent's Proposed Findings of Fact and Conclusions of Law", the

pleading filed by Respondent only presented argument for reconsideration of the

motion for continuance.

This warrants further brief discussion of the basis for denial. On its

face the motion set out good cause for continuance; it was also timely filed.

This does not imply, however, that an opposing party should not have the

opportunity to respond. The rules of procedure for administrative hearings

provide for a seven-day response period, plus three days for mailing. Rules

22I-6.02 and 22I-6.06 Florida Administrative Code. During the week before the

hearing, the hearing officer twice attempted to contact Mr. Taylor to inform him

of his need to set up a telephone hearing or get the concurrence of opposing

counsel. That explicit message was given twice to Mr. Taylor's secretary. On

the second occasion she assured the hearing officer that the earlier message was

given to Mr. Taylor. In the absence of any follow-up from Mr. Taylor, a

rational assumption was that the scheduling conflict had been resolved. On the

morning of the hearing, when opposing counsel had already traveled to

Tallahassee, Mr. Taylor's secretary called to ask about the continuance. The

hearing was scheduled in Tallahassee for the convenience of Respondent and his

attorney. The motion for continuance states that the federal court appearance

was scheduled before the administrative hearing. The priority of one type of

case over another is immaterial; any "damage" to Respondent would have been

avoided by the simple expedient of immediately informing the hearing officer and

opposing counsel of the scheduling conflict as soon as it was discovered or by

following through after being reminded of Rule 22I-6.16 Florida Administrative

Code.

Reconsideration of the motion for continuance is DENIED.

Issue

The issue in this proceeding is whether William David McCaffrey's mortgage

solicitor's license should be suspended for violation of section 494.05(1),

Florida Statutes.

FINDINGS OF FACT

1. The pleadings in this case, Petitioner's Notice of Intention to

Suspend" and Respondent's "Petition for Formal Hearing" establish the following

uncontroverted facts:

a) William D. McCaffrey is a mortgage solicitor holding license number

HK0007207.

b) The Department of Banking and Finance is charged with the

responsibility and duty of administering and enforcing the provisions of the

Mortgage Brokerage Act, including the duty to suspend the license of those

persons registered under the act for violations of the terms therein.

c) William D. McCaffrey has been convicted of a federal offense and is

presently in federal custody at the Federal Correctional Institute in

Montgomery, Alabama.

2. On November 13, 1985, Respondent pled guilty to "Interstate

transportation of fraudulently obtained credit cards, in violation of title 15

U.S. Code, Section 1644(b) as charged in count 6 of the Indictment".

(Petitioner's Exhibit #2)

3. Count 6 of the indictment provides:

Count Six

On or about December 13, 1982, defendants

WILLIAM D. McCAFFREY and WILLIAM BARTRAM

III did knowingly, with unlawful and fraud-

ulent intent, transport and cause to be

transported in interstate commerce from

Clarkston, Georgia, by way of Nevada, to the

District of Arizona, a fraudulently obtained

American Express Credit Card in the name of

William Smith, knowing said credit card to

have been fraudulently obtained.

All in violation of Title IS, United States

Code, Section 1644(b), and Title 18, United

States Code, Section 2. (Petitioner's

Exhibit #1)

4. The U.S. District Court for the District of Arizona in case #CR 85-53

PHX adjudged William D. McCaffrey guilty as charged and convicted, sentenced him

to imprisonment for 5 years, and ordered that he pay a fine of $10,000 and make

restitution to American Express in the amount of $5,481.27. (Petitioner's

Exhibit #2 Judgement and Probation/Commitment Order)

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. Section 120.57(1) Florida

Statutes.

6. The Department of Banding and Finance may suspend a mortgage broker's

or solicitor's license for a period not exceeding 2 years upon a finding that

the licensee has been guilty of:

A crime against the laws of this state or

any other state or of the United States,

involving moral turpitude or fraudulent

or dishonest dealing...

Subsection 494.05(1)(d) Florida Statutes.

7. Count 6 of the indictment and the finding and judgement of the Arizona

Federal District Court clearly describe the crime to which William D. McCaffrey

pled guilty as a crime involving fraudulent or dishonest dealing.

8. In his petition for formal hearing Respondent argues that the offense

for which he was convicted is in no way related to his duties, rights and

privileges under his mortgage license. Section 494.05, Florida Statutes does

not require a finding that the crime is directly related to the Respondent's

practice of business under his license. Honesty, truthfulness and integrity are

attributes which the legislature has determined are required for individuals who

deal with the public as mortgage brokers or solicitors. Subsection 494.04(4)

Florida Statutes.

9. The agency proved that Respondent was judged guilty of a federal crime

involving fraudulent or dishonest dealing. Respondent is not entitled to

administrative relitigation of the prior judgement of guilt. McGraw V.

Department of State, Division of Licensing, 491 So 2nd 1193 (Fla. 1st DCA 1986)

RECOMMENDATION

Based upon the foregoing it is recommended that a final order be entered

suspending Respondent's mortgage solicitor's license for a period of two years.

DONE AND ORDERED this 23rd day of October 1986, in Tallahassee, Florida.

_________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of October, 1986.

COPIES FURNISHED:

Robert K. Good, Esquire

Office of the Comptroller

400 West Robinson Street

Orlando, Florida 32801

Clyde Taylor, Jr., Esquire

1105 Hays Street

Tallahassee, Florida 32301