CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 Fla. App. LEXIS 13667, 2014 WL 4327946
...The new provisions require all
mortgage brokers to file new applications for licensure as “loan
originators” through the national system since the previous mortgage
broker licenses ceased to be valid licenses. §
494.001(14), Fla. Stat.
(2010).
Section
494.0011, Florida Statutes (2010), empowers OFR to adopt
rules for loan originator licensure in accordance with Chapter 494 and the
SAFE Act. Section
494.0011(2)(c) states that the office may adopt rules:
Establishing time periods during which a loan originator ....
...regardless of adjudication.
1. The rules must provide:
a. Permanent bars for felonies involving fraud, dishonesty,
breach of trust, or money laundering[.]
(emphasis added).
OFR established Florida Administrative Code rule 69V-40.00112 to
implement section 494.0011, Florida Statutes....
...civil rights have been restored under the governor’s clemency power.
Because the licensure statute in Kauk is substantially the same as the
statute and administrative rule in the instance case, the holding in Kauk
can be applied to find that the legislature did not intend for section
494.0011, Florida Statutes, or administrative rule 69V-40.00112 to have
an unconstitutional result; thus, a per se bar against licensure for felons
convicted of crimes involving fraud will be construed as to not apply to
felons whose civil rights have been restored....
...statute and rule precludes a
finding that the statute and rule are facially unconstitutional, and so
fundamental error cannot be applied. B.C.,
864 So. 2d at 491. Thus, to
the extent that OFR’s application of the loan originator licensure statute,
section
494.0011, is unconstitutional,2 this would not constitute
fundamental error....
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