94-004258 Florida Land Sales, Condominiums, And Mobile Homes vs. Thomas I. Davis, Jr. Status: Closed Recommended Order on Monday, March 13, 1995.

Summary: False answers on application result in revocation of Respondent's license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF FLORIDA LAND SALES )

CONDOMINIUMS AND MOBILE HOMES, )

)

Petitioner, )

vs. ) CASE NO. 94-4258

)

THOMAS I. DAVIS, JR., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the

above-styled case on January 11, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: E. Harper Field, Senior Attorney

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: David M. Goldstein

LAW OFFICE OF DAVID M. GOLDSTEIN

100 Southeast 2nd Street

Suite 2750 International Place

Miami, Florida 33131

STATEMENT OF THE ISSUES

The central issue in this case is whether Respondent's yacht and ship

salesman's license should be disciplined for the reasons set forth in the notice

of intent to revoke license dated June 14, 1994.

PRELIMINARY STATEMENT

This case began on June 14, 1994, when the Department of Business and

Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile

Homes (Department) filed a notice of intent to revoke license for the

Respondent, Thomas I. Davis, Jr. The notice alleged that Respondent had

procured a yacht and ship salesman's license by fraud, misrepresentation,

falsification or deceit by failing to disclose information on the application

for licensure. More specifically, the Department claimed that Respondent had

received a censure and a $20,000 fine from the National Association of

Securities Dealers (NASD) and that such sanction had not been disclosed in the

appropriate location on the application.

The notice provided that absent a showing of good cause, Respondent's

license would be revoked by the Department. Respondent filed a denial of

allegations and request for formal hearing on July 25, 1994. Thereafter, the

matter was forwarded to the Division of Administrative Hearings for formal

proceedings on July 29, 1994.

At the hearing, the Department presented the testimony of the following

witness: Peter P. Butler, a senior management analyst II who is the section head

for general regulations over yacht and ship brokers for the Department. Its

exhibit numbered 1, the application for a yacht and ship broker or salesman

license for the Respondent, and the deposition testimony of Geraldine Harrison

were admitted into evidence. The Department requested, and official recognition

has been taken, of the following provisions: Chapter 326, Florida Statutes; and

Chapter 61B-60, Florida Administrative Code.

The Thomas I. Davis, Jr. and Leroy Sorrell testified on behalf of

Respondent. His exhibits numbered 1, 3, 4, 5, and 6 were admitted into

evidence. Also included with Respondent's exhibits is Respondent's exhibit A

which was filed in support of Respondent's ore tenus motion in limine. Such

motion sought to limit Petitioner's evidence to matters addressed by question 12

of the application for licensure and to disallow evidence as to question 11.

The motion was denied.

The charging instrument in this case, that is, the notice of intent to

revoke license, alleged that Respondent had:

Pursuant to Sections 326.006(2)(f)(1), Florida

Statutes, have allegedly procured a Yacht and

Ship Salesman's License by fraud, misrepresen-

tation, falsification, or deceit and the

Division intends to revoke your Yacht and

Ship Salesman's license specifically on the

following grounds:

On April 30, 1993, the Section of General

Regulation received an application from Thomas

I. Davis, Jr. for a Yacht and Ship Salesman's

License. A license was issued on May 10, 1993.

On May 16, 1994, the Section obtained a report

from the Department of Banking and Finance

revealing that in 1991 Thomas I. Davis received:

A censure, a fine of $20,000, and a suspension

of all capacities from the National Association

of Securities Dealers. This was not revealed

in the appropriate portion of the application.

Further, through omission of the above on said

application, it is alleged that a violation of

Section 559.791, F.S., pertaining to falsely

swearing to a material statement on a license

application, has occurred. [Emphasis added.]

No additional information was alleged as to the "appropriate portion" of

the application. Respondent assumed, erroneously, that only questions 12(a) and

12(b) applied to the allegation. The Petitioner's unilateral prehearing

statement (timely filed in accordance with the order entered in this cause),

clearly identified as an issue of fact to be litigated:

Whether Respondent's response in the negative to questions 11 and or 12 on

his application is a violation of Section 326.006(2)(f)(l), or Section 559.791,

Florida Statutes authorizing the Division to revoke Respondent's license.

Thus, Respondent was on notice of the allegations against him and the

underlying facts which reportedly supported Petitioner's claim. Respondent

failed to timely respond to the order for prehearing statement. Further, an

order granting Petitioner's motion to compel discovery and to show cause was

entered after Respondent failed to respond to discovery. Had Respondent

complied with the order for prehearing statement, he would have known

Petitioner's position as to the "appropriate portion" of the application even

earlier.

In connection with Respondent's failure to comply with the orders

previously identified, Petitioner sought sanctions in the form of attorneys fees

and costs. While a ruling on the request for sanctions was reserved, in light

of the recommendation of this case, it is determined that additional sanctions

need not be imposed.

The transcript of the proceeding was filed on February 6, 1995. The

parties waived the requirements of Rule 28-5.402, Florida Administrative Code,

and agreed to submit their proposed findings of fact within fifteen days of the

transcript. Specific rulings on the proposed findings of fact are included in

the appendix at the conclusion of this order.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility to

regulate persons pursuant to Chapter 326, Florida Statutes.

2. On April 30, 1993, the Department received an application for a yacht

and ship broker or salesman license (the application) submitted by Respondent,

Thomas I. Davis, Jr.

3. The application provided, in pertinent part:

11. LICENSES AND CERTIFICATES: Have you now

or have you ever been licensed or certified

in any other profession such as real estate,

insurance, or securities in Florida or any

other state?

Yes_______ No_______ If you answered yes,

please describe:

Profession License #

First Obtained Status of License

12. (a)Has any license, certification, registration

or permit to practice any regulated profession or

occupation been revoked, annulled or suspended in

this or any other state, or is any proceeding now

pending? Yes_______ No________

(b) Have you ever resigned or withdrawn from, or

surrendered any license, registration or permit

to practice any regulated profession, occupation

or vocation which such charges were pending?

Yes___ No___

If your answer to questions (a) or (b) is Yes,

attach a complete, signed statement giving the

name and address of the officer, board, commission,

court or governmental agency or department before

whom the matter was, or is now, pending and give

the nature of the charges and relate the facts.

4. In response to the application questions identified above, Respondent

entered the following answers: "No" as to questions 11, 12(a), and 12(b).

5. As a result of the foregoing, Respondent was issued a yacht and ship

salesman's license on May 10, 1993.

6. Thereafter, the Department learned that Respondent had been censured by

the NASD. In a decision entered by that body accepting Respondent's offer of

settlement, Respondent was given a censure, a fine of $20,000.00, and a

suspension in all capacities from association with any member for a period of

two (2) years with the requirement that at the conclusion of such suspension

that he requalify by examination for any and all licenses with the Association.

7. The censure also provided a specific payment plan for the $20,000 fine

which was assessed. To date, Respondent has not complied with that provision of

the settlement.

8. From 1973 through 1991, Respondent was registered with several

different firms pursuant to Chapter 517, Florida Statutes.

9. Additionally, Respondent has been licensed to sell securities in the

following states: California, Colorado, Connecticut, Delaware, Idaho, Illinois,

Louisiana, Maine, Maryland, Nevada, and New York. Respondent has also been

licensed in Washington, D.C. and Puerto Rico.

10. Respondent has been a licensed stock broker with the Securities and

Exchange Commission since 1971.

11. Respondent answered questions 11 and 12 (a) and (b) falsely.

Respondent knew he was licensed to sell securities and knew of the sanction from

the NASD at all times material to the entry of the answers.

12. Pursuant to Rule 61B-60.003, when the Department receives an

application for licensure which is in the acceptable form, it is required to

issue a temporary license. Had the Respondent correctly answered questions 11

and 12 on the application, the Department would not have issued Respondent's

license.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the

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

14. The Department has the burden of proof to establish by clear and

convincing evidence that the Respondent's license should be revoked.

15. Section 326.006(2)(f)1., Florida Statutes, provides:

The division may suspend or revoke the license

of a broker or salesman who has:

1. Procured a license for himself or another

by fraud, misrepresentation, falsification, or

deceit.

16. The Department has established that by entering false answers to the

application, Respondent misrepresented information pertinent to his obtaining

the license. Respondent's explanations in this matter have not been deemed

credible.

RECOMMENDATION

Based on the foregoing, it is, hereby,

RECOMMENDED:

That the Department of Business and Professional Regulation, Division of

Florida Land Sales, Condominiums, and Mobile Homes, enter a final order

dismissing Respondent's challenge to the notice of intent and revoking his

license.

DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon

County, Florida.

___________________________________

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4258

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Paragraphs 1 through 9, 11, 13, and 15 through 17 are accepted.

2. Paragraph 10 is rejected as repetitive.

3. Except as to findings reached above, paragraphs 12 and 14 are rejected

as irrelevant. It is found that Respondent falsely answered question 11.

Rulings on the proposed findings of fact submitted by the Respondent:

Respondent's proposed findings of fact are rejected as they do not comply

with Rule 60Q-2.031(3), Florida Administrative Code. However, to the extent

findings do not conflict with the findings of fact above, they have been

accepted. Such proposed findings of fact are paragraphs: 1, 7 and 8. The

remaining paragraphs are rejected as they are not supported by the record cited

(none), irrelevant, argument, or contrary to the weight of the credible

evidence.

COPIES FURNISHED:

Lynda L. Goodgame

General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

E. Harper Field

Senior Attorney

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

David M. Goldstein

LAW OFFICE OF DAVID M. GOLDSTEIN

100 S.E. 2nd Street

Suite 2750 International Place

Miami, Florida 33131

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 10 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.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT JULY TERM 1996

THOMAS I. DAVIS, JR., NOT FINAL UNTIL THE TIME EXPIRES

TO FILE REHEARING MOTION,

Appellant, AND, IF FILED, DISPOSED OF.

vs. CASE NO. 95-2849

DOAH CASE NO. 94-4258

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION

DIVISION OF FLORIDA LAND

SALES CONDOMINIUMS AND

MOBILE HOMES,

Appellee.

_____________________________/

Decision filed July 3, 1996

Appeal from the Department of Business and Professional Regulation Division of

Florida Land Sales Condominiums and Mobile Homes; L.T. Case No. 94-4258.

David M. Goldstein of David M. Goldstein P.A., Miami, for Appellant.

Lisa S. Nelson, Deputy General Counsel, Department of Business and Professional

Regulation, Tallahassee, for Appellee.

PER CURIAM

AFFIRMED

GLICKSTEIN, FARMER and GROSS, JJ., concur.