93-005603 Stephen J. Matala vs. Department Of Banking And Finance Status: Closed Recommended Order on Thursday, January 27, 1994.

Summary: Conviction of larceny & grand theft constitutes convict. of a crime involv- ing moral turpitude & is ground for disqualifi. for licen as a mortg broker.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN J. MATALA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5603

)

DEPARTMENT OF BANKING AND FINANCE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly

designated Hearing Officer, K. N. Ayers, held a formal hearing in the above-

styled case on January 14, 1994, at Tampa, Florida.

APPEARANCES

For Petitioner: Stephen J. Matala, pro se

32414 Marchmont Circle

Dade City, Florida 33525

For Respondent: Lisa L. Elwell, Esquire

Department of Banking and Finance

1313 Tampa Street, Suite 615

Tampa, Florida 33602-3394

STATEMENT OF THE ISSUES

Whether Respondent was wrongfully denied licensure as a mortgage broker.

PRELIMINARY STATEMENT

By letter dated September 13, 1993, Stephen J. Matala, Petitioner, contests

the decision of the Department of Banking and Finance, Respondent, that he is

disqualified for licensure by reason of conviction of a crime involving moral

turpitude. Petitioner requested a formal hearing, the matter was referred to

the Division of Administrative Hearings, and these proceedings followed.

At the hearing, Respondent presented Petitioner's Application for Licensure

as a Mortgage Broker as Exhibit 1, a rap sheet on Petitioner as Exhibit 2,

composite court records in cases involving the State of Florida v. Stephen

Matala, in the Pasco County Circuit Court, as Exhibit 3, and Respondent's denial

letter as Exhibit 4. Exhibit 3 consists of six convictions of grand theft and

burglary on August 1, 1980, and 1984 and one count of attempted grand theft on

October 26, 1990. Petitioner testified in his own behalf and submitted a letter

to him from Respondent dated June 30, 1993, as Exhibit 5.

Respondent's proposed findings are accepted. Those proposed findings not

included herein are deemed unnecessary to the conclusions reached. Having fully

considered all evidence presented, I submit the following.

FINDINGS OF FACT

1. Exhibit 2 evidences some 13 arrests of Petitioner, most of which are

for the offense of larceny. Although this document is hearsay, Petitioner

readily acknowledged that in 1980 and 1984 he was a drug addict and supported

his habit by stealing. Exhibit 3 consists of 6 convictions of grand theft and

burglary on August 1, 1980, another count in 1984 and one count of attempted

grand theft on October 26, 1990. The period between 1980 and 1984 was a period

in Petitioner's life immediately following his discharge from the armed forces.

2. On October 26, 1990, Petitioner was adjudicated guilty of grand theft

following a plea of nolo contendere to the charge of obtaining or using or

attempting to obtain or use the property of another with intent to deprive the

owner of the use thereof of personal property of the value of $300 or more.

3. Petitioner testified that in 1990 his 19 year old stepson, who was

preparing to enter college, while driving Petitioner's pickup truck, stopped

near a parked vehicle and attempted to steal personal property therefrom, but

fled when someone observed him. The license number of the pickup was traced to

Petitioner. The stepson confessed his actions to Petitioner and when the police

arrived, Petitioner, who already had a criminal record that could hardly be

blemished further, told the police that he was the driver of the pickup. He was

charged with the offense of attempted grand larceny, pled nolo contendere, was

adjudicated guilty and was sentenced to 5 years in prison of which he served

some 7 months. The stepson graduated from college and is now married, gainfully

employed, and raising a family.

4. When submitting his application for licensure, Petitioner further

testified that he researched the definition of moral turpitude, spoke to his

lawyer and other people regarding his conviction of grand larceny, and was told

that the offense did not necessarily constitute an offense involving moral

turpitude. Accordingly, Petitioner assumed that he had not been convicted of an

offense involving moral turpitude and marked item 5 on his application "No"

which asked if he had ever been found guilty of a crime involving fraud,

dishonest dealing, or any other act of moral turpitude.

5. Petitioner contends that he told Respondent's employees, with whom he

discussed his application for licensure, of his criminal record and was told

this was not disqualifying. Accordingly, he spent the money to obtain the

required mortgage broker education certificate and to take and pass the

examination for mortgage broker license, only to be told after these efforts

that he could not qualify for licensure.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

7. Section 494.041, Florida Statutes, provides in pertinent part:

(1) Whenever the Department finds a person

in violation of an act specified in

subsection (2), it may enter an order

imposing one or more of the following

penalties against the person:

* * *

(f) Denial of a license or registration.

(2) Each of the following acts constitute a

ground for which the disciplinary action

specified in subsection (1) may be taken:

(a) Being convicted or found guilty,

regardless of adjudication, of a crime in any

jurisdiction which involves fraud, dishonest

dealing, or any other act of moral turpitude.

* * *

(c) A material misstatement of fact on an

initial or renewal application.

8. Although Petitioner contends that he researched the definition of moral

turpitude, it is evident his research was not complete. In Carp v. Florida Real

Estate Commission, 211 So.2d 240 (Fla. 3rd DCA 1968), the court held a real

estate broker who was convicted of bookmaking was guilty of a crime involving

moral turpitude for which his license could be revoked. In Winkleman v.

Department of Banking and Finance, 537 So.2d 951 (Fla. 3rd DCA 1989), it was

held that willfully assisting in the preparation of false income tax returns is

an offense involving moral turpitude and conviction thereof supports revocation

of license of an "associated person." In Ciringlario v. Florida Police

Standards Commission, 409 So.2d 80 (Fla. 1st DCA 1982), it was held that a

misdemeanor conviction of embezzlement involve moral turpitude.

9. As a general rule it may be said that almost all crimes involving

fraud, larceny, or dishonest dealing involve moral turpitude.

10. A further factor supporting the denial of Petitioner's license is the

inaccurate statement on his application that he has not been of a crime

involving fraud, dishonest dealing, or any other act of moral turpitude.

11. In these proceedings Petitioner presented no evidence of good

character other than his own self-serving testimony. To overcome the

disqualification for licensure resulting from a conviction of grand larceny, an

applicant must present evidence that despite the conviction, sufficient time has

elapsed to demonstrate that he has turned his life around and that at the

present time he can conduct the business of a mortgage broker with safety to

those with whom he deals.

12. Petitioner failed to present any witness to testify to his present

good character and that, if issued a license as a mortgage broker, he could

safely be trusted to carry out the duties of a mortgage broker, with clients

served by him.

13. From the foregoing it is concluded that Petitioner has failed to prove

that he is qualified for licensure as a mortgage broker.

RECOMMENDATION

It is RECOMMENDED that a Final Order be issued denying the application of

Stephen J. Matala for a licensure as a mortgage broker.

DONE AND ENTERED this 27th day of January 1994 in Tallahassee, Leon County,

Florida.

___________________________

K. N. AYERS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of January 1994.

COPIES FURNISHED:

Stephen J. Matala

32414 Marchmont Circle

Dade City, Florida 33525

Lisa L. Elwell, Esquire

Office of the Comptroller

Department of Banking and Finance

1313 Tampa Street, Suite 615

Tampa, Florida 33602-3394

Honorable Gerald Lewis

Comptroller, State of Florida

The Capitol, Plaza Level

Tallahassee, Florida 32399-0350

William G. Reeves, General Counsel

Department of Banking and Finance

The Capitol, Room 1302

Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.