final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Department of Financial Services. Robert C.
Kneip, Chief of Staff.
A. Richert of Richert Quarles P.A., Clearwater, for
Gregory D. Venz, Deputy General Counsel, Marshawn Michael
Griffin, Assistant General Counsel, Department of Financial
Services, Tallahassee, for Appellee.
Antony Lee Turbeville challenges a Final Order of the
Department of Financial Services revoking Appellant's
insurance license, following the Department's finding
that Appellant violated section 626.621(13), Florida Statutes
(2015). Appellant argues that: (1) the language of section
626.621(13), Florida Statutes, and the penalty guidelines of
Florida Administrative Code Rule 69B-231.090(13) (2015) are
ambiguous and should be construed in his favor; (2) that the
Department's application of rule 69B-231.090(13)
constitutes an ex post facto violation; and (3) that the
Department's application of the section 626.621(13),
Florida Statutes, to licensees of the Financial Industry
Regulatory Authority ("FINRA") violates a
licensee's constitutional right to remain silent.
entered the securities industry in 1987 and registered with
several FINRA member firms from 1987 through 2015. Among
other products, Appellant sold Collateralized Mortgage
Obligations, which are complex debt securities that
essentially repackage mortgage loans as bonds purchasable by
December 30, 2009, FINRA filed a six-count complaint against
Appellant, alleging violations of the Securities Exchange Act
and the National Association of Securities Dealers rules.
FINRA's Extended Hearing Panel conducted a sixteen-day
hearing and issued its order on May 31, 2012. The Extended
Hearing Panel found that Appellant intentionally or
recklessly misrepresented the risks of the Collateralized
Mortgage Obligations and sold them to elderly and
unsophisticated investors. From July 2005 to July 2007,
Appellant, his colleague, and their firm earned approximately
$492, 500 in commissions from seven customers who lost
approximately $1.6 million as a result of Appellant's
transactions. The Extended Hearing Panel further found that
Appellant, along with two colleagues, violated section 10(b)
of the Securities Exchange Act and rule 10b-5 thereunder, and
violated FINRA rules 2120 and 2110, and this decision barred
Appellant from associating with any FINRA-regulated firm in
appealed this decision to the National Adjudicatory Council
("Council"), FINRA's appellate panel, on June
12, 2012. The Council affirmed the Hearing Panel's
factual findings and the sanctions on April 16, 2015.
April 19, 2016, the Department filed a one-count complaint
against Appellant, alleging a violation of section
626.621(13), Florida Statutes. An informal hearing was held
pursuant to section 120.57(2), Florida Statutes, as Appellant
conceded there were no material facts in dispute. The
Department's hearing officer filed his Written Report and
Recommended Order, stating the following conclusions: (1) the
National Adjudicatory Council's decision of April 16,
2015 constituted final disciplinary action by FINRA, and
final agency action under state law, pursuant to section
626.621(13), Florida Statutes; (2) Appellant violated section
626.621(13), Florida Statutes; and (3) under Florida
Administrative Code Rule 69B-231.090(13), the penalty to be
imposed is the highest identical penalty imposed by a
national securities association upon which the statutory
violation is based, which was the revocation of
Appellant's insurance license. The Department issued its
final order adopting the hearing officer's findings of
fact, conclusions of law, and recommendation, and the
Department revoked Appellant's license.
Is the language of section 626.621(13), Florida Statutes
(2015), or Florida Administrative Code Rule 69B-231.090(13)
review issues of statutory interpretation de novo.
Sullivan v. Fla. Dep't of Envtl. Prot., 890
So.2d 417, 420 (Fla. 1st DCA 2004).
agencies are afforded wide discretion in the interpretation
of a statute which they administer, but appellate courts are
not required to defer to an unreasonable statutory
interpretation. Id. "If the agency's
interpretation is within the range of possible and reasonable
interpretations, it is not clearly erroneous and should be
affirmed, " Florida Dep't of Education v.
Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003), but
"'judicial adherence to the agency's view is not
demanded when it is contrary to the statute's plain
meaning.'" Werner v. Dep't of Ins. &
Treasurer, 689 So.2d 1211, 1214 (Fla. 1st DCA 1997)
(quoting PAC for Equality v. Dep't of State, Fla.
Elections Comm'n, 542 So.2d 459, 460 (Fla. 2d DCA
1989)). Statutes providing for revocation or suspension of a
license to practice "are deemed penal in nature and must
be strictly construed, with any ambiguity interpreted in
favor of the licensee." Beckett v. Dep't of Fin.
Servs., 982 So.2d 94, 100 (Fla. 1st DCA 2008) (quoting
Elmariah v. Dep't of Prof'l Reulation, Bd. of
Med., 574 So.2d 164, 165 (Fla. 1st DCA 1990)). But
"'[w]hen the statute is clear and unambiguous,
courts will not look behind the statute's plain language
for legislative intent or resort to rules of statutory
construction to ascertain intent.'" Borden v.
East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006)
(quoting Daniels v. Fla. Dep't of Health, 898
So.2d 61, 64 (Fla. 2005)).
626.621, Florida Statutes, as it read at all times pertinent
here,  provided:
The department may, in its discretion . . . revoke . . . the
license . . . of any . . . agent . . ., and it may suspend or
revoke the eligibility to hold a license . . . of any such
person, if it finds that as to the . . . licensee . . . any
one or more of the following applicable grounds exist under
circumstances for which such . . . revocation . . . is not
mandatory under s. 626.611:
. . . .
(13) [The licensee has] been the subject of or has had a
license . . . or other authority to conduct business subject
to any decision . . . by any . . . national securities . . .
association involving . . . a violation of any rule or
regulation of any national securities . . . association.
Florida Administrative Code Rule 69B-231.090 describes
specific penalties for violations of ...