147 So. 3d 587
Fla. Dist. Ct. App.2014Background
- Emiddio was a licensed mortgage broker since 1993 and pled nolo contendere in 2002 to multiple fraud-related felonies unrelated to her mortgage practice.
- In 2004 OFR held an informal evidentiary hearing on whether to revoke her mortgage-broker license and adopted a recommendation to allow retention of the license with probation.
- Federal SAFE Act and Florida amendments (2009–2010) created new "loan originator" licenses and barred licensure for anyone convicted of a felony involving fraud, dishonesty, breach of trust, or money laundering.
- Emiddio applied for a loan originator license in 2010–2011; OFR issued a Notice of Intent to Deny based solely on her 2002 convictions and denied the application after an informal hearing.
- Emiddio argued res judicata/collateral estoppel (and later cited Kauk) to prevent relitigation, and suggested the statutory bar infringed the governor’s clemency power; OFR and the hearing officer concluded changed law created a new legal situation.
- The Fourth DCA affirmed OFR: res judicata and collateral estoppel did not apply due to significant statutory and rule changes; Emiddio’s constitutional challenge was not preserved for review and no fundamental error was shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata or collateral estoppel precludes OFR from denying licensure | Emiddio: prior 2004 OFR decision declining revocation resolves the fraud-conviction issue | OFR: 2009–2010 statutory and rule changes (SAFE Act implementation) created a new legal situation | Not barred — changed law and circumstances permit relitigation |
| Whether the new statutory/rule scheme permits a per se bar to licensure for felons with fraud convictions | Emiddio: she had been rehabilitated, retained license previously, and civil rights largely restored | OFR: statute/rule mandate ineligibility for convictions involving fraud; must apply current law | OFR properly applied current statute/rule to deny application |
| Whether denial infringes executive clemency (civil-rights restoration) and is unconstitutional | Emiddio (via Kauk): a restored felon should be evaluated for rehabilitation; a per se bar may infringe clemency power | OFR: no such constitutional challenge was preserved below; statute can be construed to allow consideration of rehabilitation | Not reviewed on merits — claim not preserved; court reviews only for fundamental error and finds none |
| Whether OFR’s application of the statute constituted fundamental error | Emiddio: (implicitly) denial on statutory grounds was unconstitutional | OFR: application was lawful under amended statutes/rules and prior decisions allow agency evaluation of rehabilitation where appropriate | No fundamental error; affirmation of denial |
Key Cases Cited
- Thomson v. Dep’t of Envtl. Regulation, 511 So. 2d 989 (Fla. 1987) (res judicata in administrative context applies only absent new facts or changed conditions)
- Sandlin v. Criminal Justice Standards & Training Comm’n, 531 So. 2d 1344 (Fla. 1988) (statute barring certification for convicted individuals must be construed to avoid infringing executive clemency)
- Kauk v. Dep’t of Fin. Servs., 131 So. 3d 805 (Fla. 1st DCA 2014) (restored felons may be evaluated for rehabilitation; a per se statutory bar may be construed to allow consideration of rehabilitation)
- G.W. Liquors of Collier, Inc. v. Dep’t of Bus. Regulation, 556 So. 2d 464 (Fla. 1st DCA 1990) (extends Sandlin principles to restored civil-rights cases)
- Delray Med. Ctr., Inc. v. State Agency for Health Care Admin., 5 So. 3d 26 (Fla. 4th DCA 2009) (agency discretion to determine whether changed circumstances justify departing from prior determinations)